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:
- revokes
the “declaration of emergency” declared on March 17, 2020; [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;
- 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,
- 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.
About CLAIHR
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.
