So-called ‘loophole’ allows PCs to keep emergency state indefinitely

By Sabrina Nanji May 19, 2020

A little known clause in the Emergency Management and Civil Protection Act allows the provincial government to keep the state of emergency going without legislative approval — a so-called “loophole” opposition MPPs say must be closed in the name of democracy. 
The revelation came last week at a house leaders’ meeting to suss out legislative proceedings for the emergency sitting. 
All parties had been working behind the scenes for speedy passage of the PC’s motion to extend the state of emergency and pandemic-related legislation. But Independent MPP Randy Hillier threw a wrench in those plans by signalling he would hold back unanimous consent because he believes the house should now determine the emergency orders, as opposed to cabinet and the premier’s office, which don’t require the usual scrutiny and input from the legislature.
So the Tories uncovered a backup plan. 
Specifically, a section of the Emergency Act that states “if there is a resolution before the Assembly to extend the period of the emergency, the declaration of emergency shall continue until the resolution is voted on.” 
It appears no parties were aware the provision, which has been law since 2006, allows a declared emergency to continue beyond a legislated expiry date if a motion to renew it is on the clerk’s table. 
Multiple sources say the government sought legal advice to confirm that power — though it didn’t end up needing to pull the trigger. 
“We believe the intent and effect of this provision of the Act was to prevent unintended gaps in a declared emergency while extensions are under consideration by the legislature,” Owen Macri, spokesperson for PC house leader Paul Calandra, said in an email to Queen’s Park Today
“The May 12th withdrawal of consent by Mr. Hillier to unanimously pass the extension of emergency may have delayed the debate on the motion to a subsequent day, at which point [the provision] may have come into effect,” Macri explained. That wasn’t necessary because the government was able to negotiate a same-day debate on the extension with Hillier “to deliberately avoid this eventuality.” 
With dozens of coronavirus deaths being recorded daily, each day a potential emergency order is delayed could mean more lives lost — so time is of the essence for the PCs. 
But Hillier and Green Leader Mike Schreiner argue that even in these unprecedented times, no government should have such far-reaching powers perpetually. 
“There is a huge and gaping loophole in the existing emergency management act. It is one that none of us understood was there,” Hillier told the house last week. “The loophole allows for the state of emergency to remain indefinitely at the will of the premier. There is no means that this house can compel an end to the emergency under the existing legislation.” 
Schreiner said “the fact that we learned that an emergency order could remain indefinitely is a huge loophole that needs to be closed.” 
“I appreciate the government house leader recognizing that that maybe is a power that, even in extraordinary times, is a little too extraordinary,” Schreiner said. 
Both Hillier and Schreiner suggested Calandra was open to amending that part of the law. Calandra’s office didn’t address that specific question when posed by Queen’s Park Today. 
“As the premier has said, the government and the legislature will be reviewing all aspects of this emergency from health care and long-term care to the economy and everything in between,” Macri said. 
The Emergency Act also requires Premier Doug Ford to table a post-mortem report explaining why the emergency declaration and orders were necessary within 120 days of their expiry. 
Ontario’s state of emergency has been renewed until June 2.