Why ending Ontario's state of emergency won't make everything normal again

ANALYSIS: The premier hopes that this state-of-emergency extension will be the last. But Ontarians shouldn't get their hopes up that things will return to normal
By John Michael McGrath - Published on Jun 19, 2020
Premier Doug Ford makes an announcement on March 17 declaring a state of emergency for Ontario. (Frank Gunn/CP)

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The state of emergency that Ontario has lived under since March 17, declared first by Premier Doug Ford and subsequently extended by a vote of MPPs at Queen’s Park, is going to be extended once more before MPPs break for Canada Day next week. The government introduced the motion in the legislature on Wednesday night, asking for the province’s elected representatives to approve the government’s emergency powers until July 15. But, this time, something was different: the premier’s office, in a statement to reporters, added, “the Premier is hopeful that this will be the final extension.”

If the premier’s optimism ends up proving justified — if the number of new cases and active infections in Ontario continues to drop — the state of emergency could formally end early in the summer.

But that would not necessarily signal a return to normality in the pre-COVID-19 sense of the word. In all likelihood, the government will seek to maintain several public-health controls to prevent activities that pose the highest risk of new infections — things like tightly packed night clubs or concerts will still likely be restricted or prohibited outright even if the state of emergency formally ends in July.

The solicitor general’s office — which is headed by Sylvia Jones and is responsible for the administration of the emergency orders —acknowledged Thursday there may be a need for new, non-emergency measures after July.

“We are taking the time necessary to carefully review all emergency orders issued and determine the best next steps, should the declaration of emergency terminate,” a spokesperson for Jones told TVO.org in an email. “This may include extending an order, terminating an order, or introducing legislative or regulatory changes in place of an order.”

The government’s alternatives fall into three broad categories.

1. “Zombie” emergency orders

The state of emergency was first declared under the powers given to the premier and to cabinet under Ontario’s Emergency Management and Civil Protection Act. Through that declaration, cabinet was able to make subsequent emergency orders, such as those that closed business or limited the size of public gatherings. In principle, once the state of emergency expires, the emergency orders expire, too.

But then there’s Section 7.0.8 (4) of the EMCPA. It says, “Despite the termination or disallowance of the emergency, the Lieutenant Governor in Council may by order extend the effective period of an order” for up to 14 days at a time to deal with any ongoing effects of an emergency. So, even if the state of emergency expires, the government can continue to renew any existing orders made under the state of emergency — it just can’t change them or issue new ones. For example, if cabinet still has a list of businesses that must remain closed due to the pandemic on the day the state of emergency expires, it can keep those businesses closed even if the state of emergency ends. And it wouldn’t need to ask MPPs to renew the orders.

At his Thursday press conference, Ford acknowledged that this power will play a role after the state of emergency ends. “Any orders we take off, we can’t put back on,” he said. “But the ones that are in place can continue moving forward.”

2. Public-health officers

Public-health officers in Ontario have broad powers to control infectious diseases, even outside a state of emergency. Under Section 22 of the Health Protection and Promotion Act, local medical officers of health can make orders to close businesses, require cleaning or disinfecting of premises, order people to “conduct himself or herself” to minimize new infections, and generally order people “to take or to refrain from taking any action” to contain the spread of a communicable disease.

The province has already relied on Section 22 during this pandemic: Ontario’s chief medical officer of health urged local medical officers to impose compulsory quarantines for anyone who tested positive for COVID-19. David Williams has also issued directives under his own authority and helped shape policy elsewhere in the health-care system.

In theory, many of the public-health measures that are currently in place thanks to the provincial state of emergency could be replaced, at least in part, with compulsory orders under Section 22, and those would not need to be renewed through any emergency measre.

“We have an array of different [powers] we could use,” Williams said Thursday. “Those have been there, they are still in place, and we’ll continue to use them if and when we need them.”

3. Something new?

The powers of cabinet under the EMCPA and of public-health officials under the HPPA are defined by provincial legislation. If the government believed both that it was no longer appropriate to use its emergency powers and that it couldn’t rely on the public-health powers of the existing law, it could always ask MPPs to debate and vote on new legislation that could give cabinet powers separate from those granted by the state of emergency. That new law could, in theory, be permanent, or it could be time-limited — depending on what the government was seeking to do. Sunset clauses in legislation (a clear statement that the law will be repealed after a set period of time) aren’t unusual, especially when a government is asking for extraordinary powers.

The Progressive Conservatives currently have a majority in the legislature, but they would likely need opposition co-operation to ensure timely passage of any new legislation.

All of which is to say: the premier may be hopeful that this will be the final extension, but even if the state of emergency ends, Ontario may not get back to normal after July 15.

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