MODULE 5: THE LAW AND THE CANADIAN CONSTITUTION: The Executive Power. The second branch of government.

LEARNING OUTCOMES

5.a. The nature of executive power.

5.b. The Canadian system of responsible government.

5.c. The key sources of executive power in Canada.

5.d. The concept of Crown immunity.

5.e. The basic limits of executive power.

PROBLEM

Background information

• On March 17, 2020, the Government of Ontario made an order declaring an emergency under s. 7.0.1 (1) of the Emergency Management and Civil Protection Act[1](the "Emergency Act").

• Premier Ford declared: "We are facing an unprecedented time in our history. This is a decision that was not made lightly. COVID-19 constitutes a danger of major proportions. We are taking this extraordinary measure because we must offer our full support and every power possible to help our health care sector fight the spread of COVID-19. The health and wellbeing of every Ontarian must be our number one priority."

Emergency Orders and adoption of sweeping legislation

• Since March 2020, 49 Emergency Orders (filed as regulations under the Emergency Act) have been issued in response to COVID-19.

• On July 21, 2020, An Act to enact the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, c. 17 ["Bill 195"] received Royal Assent. Under Bill 195, Ontario ends the declared emergency, but almost all emergency orders remain in effect for an additional year (through extensions ordered every 30 days). The power to amend or revoke the orders rests with the Minister, not the Legislative Assembly.

The controversy

• The Canadian Civil Liberties Association called Bill 195 an "undemocratic power grab" which gives the Premier and his Ministers the ability to impose emergency orders that "drastically curtail basic rights and freedoms" without the "need to engage in the legislative process or involve members of the Legislative Assembly".

• The Ontario Federation of Labour said it was "outraged" by the Act, which gives employer the ability to bypass collective agreements, deny vacation and contract-out jobs.

• Jay Cameron, litigation manager at the Justice Centre for Constitutional Freedoms, adds that "Emergency powers should be temporary and subject to rigorous, principles dissent. Bill 195 is the silencing of the peoples' voice through their representatives in the provincial parliament."

Your task

• You are employed by the government of Ontario. The Office of the Premier and Cabinet Office, faced by this controversy, want to ensure that they have not exceeded the limits of their executive power.

• You must submit a legal memo that will outline whether or not the Ontario government has exceeded its prerogative and/or statutory powers, and how these measures may affect the democratic process and the respect for freedoms and rights.

[1] RSO 1990, c E.9.