Our Work

Ontario’s Bill 195, which extends Ontario’s emergency powers without oversight or a declared state of emergency, is inconsistent with international law.

Ontario’s Bill 195, “Reopening Ontario (A Flexible Response to COVID-19) Act, 2020”,[1] which continues the executive’s power to renew emergency measures without legislative oversight and in the absence of a declared state of emergency, is inconsistent with international law.

Ontario’s Bill 195, which came into force on July 23, 2020, (the “Act”) declares the end of the COVID-19 state of the emergency,while allowing the government to continue and/or amend emergency measures in force prior to the termination of the declared emergency. In CLAIHR’s view, this Act is inconsistent with international human rights law.

Specifically, the Act:

  1. revokes the “declaration of emergency” declared on March 17, 2020; [2]
  2. grants Cabinet the power to renew and amend emergency orders that override and/or limit civil and political rights for 30-days at a time, for up to a year, without the legislature’s consent or oversight;
  3. does not restrict or place any conditions upon Cabinet’s power to renew an order in accordance with international legal and constitutionally required principles of necessity, proportionality, and minimal impairment; and,
  4. enables the legislative assembly, upon the recommendation of the Premier, to extend Cabinet’s discretion to renew and amend emergency orders for additional one-year periods indefinitely.

The emergency measures continued under the Act were enacted in the context of a declared state of emergency, declared under legislation that limits Cabinet’s powers to enact emergency measures to those which are “necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons” (among other stringent criteria).[3] The Act, however, allows Cabinet to extend such orders even where necessity no longer exists.

COVID-19 has disproportionately impacted racialized and other socioeconomically disenfranchised groups, accentuating the systemic health and economic inequities that have led to higher rates of infection, hospitalizations, and death among marginalized communities.[4] Black peoples, Indigenous Peoples, brown people, people living with disabilities, migrants, and women are some of the disproportionately impacted groups, many of whom face multiple and intersectional forms of discrimination. CLAIHR supports, and will continue to encourage the government to implement, fair and balanced government measures aimed at containing the spread of COVID-19 to the extent that these are consistent with Canada’s international human rights law obligations, which, we note, are binding on the provinces.[5]  In CLAIHR’s view, the Act is inconsistent with international human rights law governing emergency powers.

In the context of an emergency, international law permits governments to curtail civil and political rights only where strictly required by a public emergency threatening the nation’s survival. However, emergency orders must be legally prescribed and states of emergency must be limited in duration and scope. Measures must be the least intrusive to achieve stated public health goals and include safeguards such as sunset or review clauses. Any extraordinary powers used by States in an emergency must be transparent. In the absence of a state of emergency, any restrictions to civil and political rights must be necessary to the protection of public health, proportional to the threat, minimally impairing, and non-discriminatory.[6] Such restrictions must be in accordance with the principles of legality and rule of law. For social and economic rights, states must continue to respect, protect, and fulfill the core content of the rights during situations of emergencies.[7] 

Unfortunately, the Act misses the mark. By authorizing the executive, in the absence of legislative input and oversight, to renew emergency orders without reference to the principles of necessity, proportionality, and minimal impairment, the Act allows rights-infringing measures that may have been necessary and proportionate at the height of the pandemic to be continued where no longer necessary or minimally impairing, and this in the absence of a definitive limitation on duration. These failures also constitute a failure of the democratic process itself, in the absence of public participation and scrutiny over extensions and proposed amendments.

We note that among the emergency measures continued by the Act are measures that expand the police’s power to card and override hard won collective workplace rights and protections for care workers.[8]  Carding disproportionately impacts Black communities, and Black men, in particular, and care work is disproportionately performed by women, many of whom are immigrant, migrant, and/or racialized workers.[9] CLAIHR is concerned that the potentially indefinite continuation of such measures will accentuate the structural racial discrimination and economic disadvantage experienced by such groups. We remind the government that international law also protects the right to just and favourable conditions of work, an adequate standard of living, and physical and mental health, and prohibits discrimination on the basis of race, sex and gender.[10]

CLAIHR calls on the Ontario government to amend the Act to comply with the principles of international law and limit the executive’s authority to renew emergency orders to circumstances in which renewal is necessary and essential to prevent, reduce or mitigate the spread of COVID-19. The Act must not be used to illegally and indefinitely expand unjustifiable and extraordinary State powers. Any extension of the emergency order must comply with international human rights law principles of transparency, necessity, proportionality, and be the least intrusive. No emergency orders can suspend non-derogable rights.[11] In line with these principles, the government must justify its actions—explaining why the action is necessary, least intrusive, and proportional.

Further, CLAIHR calls on the government to amend the Act to clearly limit the legislative assembly’s authority to extend the executive’s power to renew and/or amend emergency orders without regular legislative oversight. The Act’s requirement for Ministers or Premier to report every 30 days is inadequate to determine whether the powers need to continue, including whether the ‘crisis’ or ‘public health emergency’ still exists and whether this legislative power continues to be the best tool to use to respond to emergency. The government should add a sunset clause or review mechanism to determine whether the measures need to continue and whether the measures taken are consistent with human rights principles and the rule of law.

In conclusion, CLAIHR continues to support measures to curb the spread of COVID-19.  However, this Act provides the province with broad powers to limit civil and political rights indefinitely and without democratic participation, in a manner that is inconsistent with international law. CLAIHR encourages the Ontario government to amend the Act to ensure its public health protecting measures comply with protect Ontarian’s human rights and comply with international law.


CLAIHR is a non-governmental organization of lawyers, law students, legal academics, and other jurists, founded in 1992 to promote human rights law from a Canadian perspective through education, research, and advocacy.

[1] Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, SO 2020, c 17.

[2] Declaration of Emergency,O. Reg. 50/20, (Mar. 17, 2020). This revocation means that currently there is no longer a legal state of emergency in Ontario.

[3] Emergency Management and Civil Protection Act, RSO 1990, c E 9, s 7.0.2(2) (“EMCPA”).

[5]  In accordance with ICCPR, supra note 3 atart. 50.

[6] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, art. 4 available at <https://www.refworld.org/docid/3ae6b3aa0.html> (“ICCPR”); UN Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, CCPR/C/21/Rev.1/Add.11, available at <https://www.refworld.org/docid/453883fd1f.html>; UN Human Rights Office of the High Commissioner, Emergency Measures and Covid-19: Guidance,  27 April 2020, available at <https://www.ohchr.org/Documents/Events/EmergencyMeasures_COVID19.pdf>.

[7] UN Human Rights Office of the High Commissioner, Emergency Measures and Covid-19: Guidance,  27 April 2020, available at <https://www.ohchr.org/Documents/Events/EmergencyMeasures_COVID19.pdf>.

[8] Ontario Regulations 114/20, 77/20, 118/20, 157/20, among others.

[9] See Fay Faraday, Canadian Women’s Foundation, et al, Resetting Normal: Women, Decent Work, and Canada’s Fractured Care Economy (July 2020), available at <https://canadianwomen.org/wp-content/uploads/2020/07/ResettingNormal-Women-Decent-Work-and-Care-EN.pdf>.

[10] International Covenant on Economic, Social and Cultural Rights, art. 7; International Convention on the Elimination of Racial Discrimination, art. 1, 2, 5; Convention on the Elimination of Discrimination Against Women.

[11] See e.g. ICCPR, s. 4(2) laying out rights where no derogation is permitted in time of public emergency.

By |October 26th, 2020|Our Work|

Intervener Arguments Made in Munyaneza Appeal

On Monday, April 22nd, 2013, CLAIHR joined Canadian Centre for International Justice to present arguments as an intervener in the Muyaneza appeal. The arguments centered around whether the Crimes Against Humanity Act can be applied retrospectively to the 1994 Rwandan genocide since the Act was not made into law in Canada until 2000. CCIJ and CLAIHR submitted the argument that the intent of the Act was to make accountable those who perpetrated such crimes in the past, so long as international laws at the time would have considered their acts to be criminal.

Click here to read the full intervener factum. French and English summaries of the trial and appeal are available by clicking here.

By |April 25th, 2013|Our Work|

Responsibility to Protect

CLAIHR strongly supports and promotes the use of the doctrine of Responsibility to Protect (R2P”).  The R2P doctrine is the result of a report of the International Commission on Intervention and State Sovereignty, in which Canada played a central role under the direction of our then Ambassador to the United Nations, Hon. Allan Rock.   2011 has seen R2P come to the fore in discussions about how Canada and other nations should respond to the great number of internal conflicts the world has witnessed this year alone.  2011 is also the 10th anniversary of this important development in international law.  CLAIHR is proud to be the only Canadian member of the International Coalition for the Responsibility to Protect.

R2P Symposium

CLAIHR is commemorating the 10th anniversary of the R2P with a year-long symposium.  Our opening event featured Michael Ignatieff at Hart House in Toronto on October 26, 2011.  Professor Ignatieff discussed Canada’s role in international R2P operations and diplomacy and where he sees our future as a nation on the world stage.  

Coming Up September 27, 2012 – To close the symposium, CLAIHR is proud to present a panel discussion entitled, ” Perspectives on Intervention” in Toronto. Panelists who have first hand experience with international intervention will share their insights. Senator Romeo Dallaire will share his experiences and perspectives on intervention from the vantage point being on the ground in Rwanda as part of the UN Mission during the genocide of 1994. Senator Eggleton will share his thoughts from his perspective as the Minister of Defence during the NATO intervention in Kosovo in 1999. Return back to this page for more details on this event as they become available.

What is R2P?

The main concept underlying R2P is that the traditional approach of humanitarian intervention was too blunt a tool to address situations of internal strife causing humanitarian crises.  As a more modern approach and with greater deference to state sovereignty, R2P has three pillars:

1) The State bears the primary responsibility to protect its populations from mass atrocities;

2) The international community has a responsibility to assist States in protecting their populations; and

3) When the State is unwilling or unable to protect their populations, and on a case by case basis, the international community has a responsibility to take collective action in a timely and decisive manner in order to provide protection to the population affected.

Under the third pillar, the international community has a number of options at its disposal aside from military intervention such as preventative diplomacy, fact finding missions, economic sanctions and embargoes and military operations such as no-fly zones, monitoring and civilians defence missions.  Importantly, military measures under this third pillar must be authorized by the U.N. Security Council and only when peaceful measures have proved inadequate.  Humanitarian intervention, however, is not authorized under this third pillar as it is defined as unauthorized coercive action (unilateral or multilateral). Moreover, humanitarian intervention has not been endorsed as a norm by member states of the U.N.

R2P Events

On October 20 and 21  the Montreal Institute for Genocide and Human Rights Studies at Concordia University will be holding an important conference to mark the 10th anniversary of the Responsibility to Protect (R2P).

On November 12, the Canadian Centre for Responsibility to Protect will be hosting a conference, Ten Years after ICISS: Reflections for the Past and Future of R2P, commemorating the 10th anniversary of R2P.

By |September 21st, 2011|Our Work|

Van Breda Intervention at the SCC

The Supreme Court of Canada granted leave to appeal in two cases from the Ontario Court of Appeal concerning two Ontario residents who were injured or killed while on vacation in Cuba in the case of Club Resorts v. Van Breda.  The court heard arguments on the ability of a court to hear a case in which the defendant and the injuries were located outside of Canada.  CLAIHR, along with Amnesty International and the Canadian Centre for International Justice (CCIJ) were given intervenor status together to make arguments at the Supreme Court.  This case was of interest to CLAIHR, CCIJ and Amnesty as it raised the issue of the forum of necessity jurisdiction, which is vitally important for victims of human rights abuses abroad who wish to commence legal actions in Canada.  This jurisdiction is an emerging concept in private international law where litigants may bring actions in tort proceedings involving foreign defendants and extraterritorial events.  The recognition of this jurisdiction would allow Canadian courts to hear proceedings that could not possibly have been instituted elsewhere.   This jurisdiction provides potential litigants with greater access to justice for crimes where legal recourse has traditionally been virtually impossible such as civil claims relating to egregious human rights violations.  With the recognition of the forum of necessity, Canada would allow plaintiffs who cannot return to the country where the harm occurred, without risking their lives or further injury, to institute civil proceedings against the perpetrators in Canadian courts.

The Ontario Court of Appeal recognized this jurisdiction in limited cases and CLAIHR along with the CCIJ and Amnesty International are seeking confirmation of this approach.  While the Van Breda case does not involve human rights issues, it raises this important issue of jurisdiction that could be a very important tool in assisting victims of human rights violations to find justice in Canada.

CLAIHR, together with the Canadian Centre for International Justice (CCIJ) and Amnesty International, were granted intervenor status by the Supreme Court of Canada in the Van Breda case and made oral arguments at the Supreme Court on March 21, 2011.  CLAIHR urged the Supreme Court to confirm the decision of the Ontario Court of Appeal in recognizing the forum of necessity jurisdiction so that victims of international crimes such as torture, war crimes and other serious international offences can seek justice through the civil courts in Canada so long as the plaintiff has some connection with the Canadian jurisdiction of the court.

CLAIHR is represented pro bono by Dr. François Larocque of the University of Ottawa and Mark Power of Heenan Blaikie LLP.

Click here for the decision of the Ontario Court of Appeal.

By |March 21st, 2011|News Releases, Our Work|

Prosecution of Désiré Munyaneza

Trial Update

Following his conviction, Mr. Munyaneza appealed both the conviction and his sentence.  CLAIHR, with the Canadian Centre for International Justice (CCIJ), has brought a motion to intervene on appeal.  The hearing of this motion is expected to be held in the Fall of 2011.

CLAIHR is represented pro bono by Mr. Fred Headon.

Read the judgment

In the News

McGill Tribune
The Agenda with Steve Paikin


Désiré Munyaneza, born in 1966, is a Rwandan man being prosecuted in Montreal for crimes committed during the Rwandan genocide in 1994. This case is notable as this is the first person to be arrested in Canada on charges of war crimes and crimes against humanity for his alleged role in the 1994 Rwandan Genocide.

By |January 15th, 2011|Our Work|

Residential Schools Truth and Reconciliation Commission


As part of the national Indian Residential Schools Settlement reached in 2006, a Truth and Reconciliation Commission (the “TRC”) will be established in early 2008. The TRC will be part of an overall holistic and comprehensive response to the Indian Residential School (”IRS”) legacy in Canada with a view to acknowledging and documenting the injustices and harms experienced by Aboriginal peoples as result of forced attendance at the schools for almost a century.

While the TRC will not have judicial or inquisitorial powers and will not have jurisdiction to order reparations or grant amnesties, CLAIHR is of the view that it has the potential to play a critical role in truth telling, public education, creation of a historical record of past violations of human rights in Canada and providing recommendations for the future relationship between Canada and its Aboriginal peoples. Accordingly, CLAIHR will monitor and periodically report on the work of the TRC and its compliance and acknowledgement of various international human rights norms.

By |December 15th, 2009|Our Work|