The Quebec legislature has been considering Bill 61 to “restart” the province’s economy in the wake of its initial easing of lockdown measures. The government of Quebec imposed the lockdown on March 13 under the emergency provisions of the Public Health Act.
Bill 61 essentially circumvents these provisions of the Public Health Act. This Act would not be formally amended, but the more specific and recent provisions of Bill 61 would override its more general and older provisions, and therefore derogate from its already limited strictures imposed upon government. It would do so in at least four ways.
First, through dealing specifically with the COVID-19 pandemic, it provides the government with additional powers well beyond those of the emergency provisions of the Public Health Act. Under that Act, the Government or the Health Minister may only act “to protect the health of the population”. This is not the case of the exceptional executive powers that Bill 61 contemplate. Indeed, by way of relaunching the economy, the bill would give the government exorbitant powers, targeted at “accelerating projects”, that derogate from the legislation that normally applies to expropriation, government procurement and public contracts, and environmental protection, among other things. Fortunately, it would do so on a temporary basis, as the exceptional measures would remain in force for one year (the original version of the Bill envisaged a period of two years). That said, one year is a completely different category of duration from the 10 or (with the consent of the National Assembly) 30 days provided for in section 119 of the Public Health Act regarding the renewal of the declaration of public health emergency.
The latest amendments to the Bill also delete the 5-year sunset clause that was originally proposed, and which had a limiting effect on the duration power to take acceleration measures itself. It is true that the Bill now provides that the power to take such measures for projects which are not listed in the appendix would exist for a period of one year running from royal sanction. But no time limit is set for the power to take acceleration measures for listed projects. Yet, there is a time limit for the implementation of such measures after they have been formally taken, being 3 years after royal sanction. So, logically, the power to take acceleration measures will not extend beyond 3 years after royal sanction for listed projects, and will be of one year for non-listed projects.
Second, as amended,the Bill would now maintain the state of public health emergency under the Public Health Act until October 1st. In its original version, the Bill contemplated an indefinite renewal. Indeed, the Bill would override and derogate from s119 of the Public Health Act, which provides that “[a] public health emergency declared by the Government is effective for a maximum period of 10 days at the expiry of which it may be renewed, as many times as necessary, for a maximum period of 10 days or, with the consent of the National Assembly, for a maximum period of 30 days”, and that “[i]f the Government is unable to meet immediately, the Minister may declare a public health emergency for a maximum period of 48 hours”. The Bill confirms that the Government may terminate the state of public health emergency before its term. This is already provided for in s128 of the Public Health Act. Yet, s122 of that Act also gives the legislative assembly the power to disallow the state of emergency, a power which Bill 61 is silent on. In my view, Bill 61 would not clearly conflict with the Public Health Act so as to render that disallowance power of the legislative assembly inoperative. In any event, Bill 61 would dispense with the already insufficient parliamentary control provided for under the Public Health Act (see my June 4 post here), and give the renewal of the current state of public emergency a duration completely out of proportion with the renewals authorized by the Public Health Act.
Third, while the Public Health Act does not allow the Government or the Health Minister to amend any legislation, Bill 61 does add to the state of public health emergency a “Henry VIII clause”, authorizing the Government to amend certain categories, and thus an undetermined number, of statutes, excluding itself. Thankfully, the Henry VIII clause that was first proposed was considerably reduced by amendments. Notably, the idea of allowing the government to amend any “rule that is impractical or too onerous to apply in the circumstances arising from the pandemic” has been dropped. However, the updated Henry VIII still goes far beyond the provisions of the Public Health Act that define this regime. Not only do the provisions of that Act only empower the executive to derogate from legislation, as opposed to amending it, but they also provide exceptional powers only in order to protect the health of the population, not to prevent or reduce any “harm arising” from a pandemic. The wisdom and possibly even the constitutionality of Henry VIII clauses is debated in Canada.
Fourth, Bill 61 would add a further executive power to the ones provided for in the public health emergency provisions of the Public Health Act: that of taking “transition measures” after the termination of the state of public health emergency. Meant to last for up to 90 days after the end of the state of public health emergency in the original version of the Bill, they would now last for at most 60 days. This is just one more sham compromise made by amendments to the Bill.
Under the proposed law, the publication of certain proposed exceptional measures would become optional, but the publication of all measures actually being adopted, except those of individual scope, would remain mandatory and would be a condition precedent for those measures coming into force under the Regulations Act. Exceptional measures will, however, be capable of being adopted sooner than under the latter statute, and they will all be capable of coming into force as soon as they are published.
It is also worth noting that the Bill does not propose many substantive permanent changes to Quebec legislation. The original bill would have only amended An Act creating a government procurement center and “Infrastructures technologiques Québec” regarding the date of its coming into force. But the first amendments to the Bill contemplated permanent changes to the legislation and regulations on liquor licenses and advertising for alcoholic beverages. And yesterday’s amendments envisage a few permanent but minor amendments to the Act respecting contracting by public bodies. Bill 61, therefore, significantly enhances the government’s emergency powers, but it still falls short of the paradox that Karin Loevy documents in other jurisdictions. Indeed, a worrisome and paradoxical trend that she has noted in her brilliant book on emergency powers throughout the world still seems to spare Quebeckers: that governments in a crisis situation not only govern under less law, but take advantage of the crisis to initiate major and permanent legal reforms strengthening the powers of the executive and the public administration.
Bill 61 may not institute a permanent legislative overhaul in the Province of Quebec, a regime of enforceable unpublished regulations, or even an emergency regime of indefinite duration. But it is nonetheless far-reaching, over-broad and out of proportion with the constraints of the emergency provisions of the Public Health Act, which had been adopted especially in order to enable the executive to tackle a public health emergency such as the present pandemic.
Bill 61 is, in a word, shocking. It is shocking in its form, which is a circumvention of the Public Health Act’s rather soft strictures. It is shocking in the breadth of the powers it confers on the government to derogate from the laws of the province, a range of powers which is hardly necessary to deal with the present pandemic or even to relaunch the economy, and which go far beyond protecting the health of the population. The Quebec government has never demonstrated that relaunching the economy in the aftermath of COVID-19 requires such derogations from such laws. Bill 61 is shocking in terms of the length of time that is actually provided for future exceptional measures to be valid. It is shocking in that it allows the Government to escape parliamentary scrutiny. And finally, it is shocking in its paradox, in that these increased emergency powers are accompanying other “return to normal” measures.