When a government – whether municipal, provincial, or federal – declares a state of emergency, this is not just its way of confirming that things have gotten pretty bad.
A declaration of emergency is a legal mechanism that allows a government to access a set of extraordinary powers which allow it to act quickly and easily to deal with a crisis.
The province of Ontario declared a state of emergency on March 17, 2020, which it has authority to do under Ontario’s Emergency Management and Civil Protection Act (EMCPA). This law sets out the stringent conditions that must exist before the province can declare a state of emergency. Essentially, the government must determine that the resources normally available to it are not sufficient to manage the emergency without undue delay.
The EMCPA also sets out the special powers that the Ontario government can access once an emergency is declared, such as:
- The Premier can control certain aspects of municipalities’ administration or facilities that would normally be under the control of municipal government.
- Cabinet can override or even re-write existing legislation without the involvement of the legislature. This power is to be used solely for the purpose of providing aid to victims of emergencies where existing legislation is not sufficient.
- Cabinet can make emergency orders that allow it to do things like close any public space, evacuate individuals, regulate or prohibit movement to, from, or between areas, or establish emergency facilities, among other things. The emergency orders in Ontario that closed bars, restaurants, concert venues, and indoor and outdoor recreation areas, among other places, are examples of these.
However, the Ontario government has also made many more orders during the current pandemic that target a wide range of issues: traffic control, working conditions of employees in the health care sector, price-gouging on necessary goods, and requirements for individuals to give personal information to police when asked, among others. A full and updated list of the orders can be found on the provincial government’s Emergency Information page.
The EMCPA also allows municipalities to declare emergencies within their own borders. Many municipalities in Ontario have done this, including Ottawa, Burlington, Toronto, and the Regional Municipality of Niagara. When a municipal emergency is declared, the head of the municipality is given the power to make any orders that are not “contrary to law” to carry out the emergency plans that all municipalities are required to have in place. These plans deal with how the municipality will provide necessary services during an emergency.
The federal government has not declared a national state of emergency under the Emergencies Act. If it did, it would also have access to special powers for the duration of the state of emergency, including the ability to make orders along lines similar to those provided for in Ontario’s EMCPA. The federal government has, however, used powers available under other laws to make extraordinary orders during the pandemic (see, for example, the mandatory self-isolation order and travel bans made under the Quarantine Act).
Is there any downside to emergency powers?
Emergency powers can be an efficient tool for rapidly responding to a crisis, but there is a reason why they are only meant to be used if strict legal conditions are met. They sometimes provide the power for a government to take very consequential actions without going through the usual (and often more time-consuming) decision making processes. The resulting decisions then have not been subject to full democratic review and debate.
Moreover, some of the emergency measures we are seeing during the COVID-19 pandemic can come into conflict with our fundamental rights and freedoms, such as orders that require quarantine or otherwise restrict movement, that require us to provide personal information to police upon request without having been arrested (“carding”), or that override negotiated terms of collective agreements in unionized workplaces. While controlling the spread of disease may require some limits on our rights, we should remain vigilant that these limits only go so far, and only last so long, as absolutely necessary.
If you would like more in-depth legal information about Ontario and federal emergency powers, see our memo prepared and regularly updated by Dan Sheppard.