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.

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.