{"id":3365,"date":"2020-06-16T12:22:41","date_gmt":"2020-06-16T12:22:41","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=3365"},"modified":"2020-06-16T12:22:43","modified_gmt":"2020-06-16T12:22:43","slug":"deconstructing-quebecs-shocking-bill-61","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/deconstructing-quebecs-shocking-bill-61\/","title":{"rendered":"Deconstructing Quebec’s “Shocking” Bill 61"},"content":{"rendered":"\n

The Quebec\nlegislature has been considering Bill 61<\/a> to \u201crestart\u201d the province\u2019s\neconomy in the wake of its initial easing of lockdown measures. The government\nof Quebec imposed the lockdown on March 13 under the emergency provisions of\nthe Public Health Act<\/em><\/a>.<\/p>\n\n\n\n

Bill 61\nessentially circumvents these provisions of the Public Health Act<\/em>. This Act would\nnot be formally amended, but the more specific and\nrecent provisions of Bill 61 would override its more general and\nolder provisions, and therefore derogate from its already\nlimited strictures imposed upon government. It would do so in at\nleast four ways.<\/p>\n\n\n\n

First, through\ndealing specifically with the COVID-19 pandemic, it provides the\ngovernment with additional powers well beyond those of the emergency\nprovisions of the Public Health Act. <\/em>Under that\nAct, the Government or the Health Minister may only act \u201cto\nprotect the health of the population\u201d. This is not the case of the exceptional\nexecutive powers that Bill 61 contemplate. Indeed, by way of\nrelaunching the economy, the bill would give the government exorbitant\npowers, targeted at \u201caccelerating projects\u201d, that derogate from the legislation\nthat normally applies to expropriation, government procurement and public\ncontracts, and environmental protection, among other things. Fortunately, it\nwould do so on a temporary basis, as the exceptional measures\nwould remain in force for one year (the original version of the Bill envisaged\na period of two years). That said, one year is a completely different category\nof duration from the 10 or (with the consent of the National Assembly) 30 days provided\nfor in section 119 of the Public Health Act <\/em>regarding the\nrenewal of the declaration of public health emergency.<\/p>\n\n\n\n

The latest\namendments to the Bill also delete the 5-year sunset clause that was originally\nproposed, and which had a limiting effect on the duration power<\/em> to take\nacceleration measures itself.  It is true\nthat the Bill now provides that the power to take such measures for projects\nwhich are not listed in the appendix would exist for a period of one year\nrunning from royal sanction. But no time limit is set for the power to take\nacceleration measures for listed projects. Yet, there is a time limit for the\nimplementation of such measures after they have been formally taken, being 3\nyears after royal sanction. So, logically, the power to take acceleration\nmeasures will not extend beyond 3 years after royal sanction for listed\nprojects, and will be of one year for non-listed projects.<\/p>\n\n\n\n

Second, as\namended,the Bill would now maintain the state of public\nhealth emergency under the Public Health Act <\/em>until October 1st<\/sup>. In\nits original version, the Bill contemplated an indefinite <\/em>renewal. Indeed,\nthe Bill would override and derogate from s119 of the Public\nHealth Act<\/em>, which provides that \u201c[a] public health emergency declared by\nthe Government is effective for a maximum period of 10 days at the expiry of\nwhich it may be renewed, as many times as necessary, for a maximum period of 10\ndays or, with the consent of the National Assembly, for a maximum period of 30\ndays\u201d, and that \u201c[i]f the Government is unable to meet immediately, the\nMinister may declare a public health emergency for a maximum period of 48\nhours\u201d. The Bill confirms that the Government may terminate the state\nof public health emergency before its term. This is already provided for in\ns128 of the Public Health Act<\/em>. Yet, s122 of that Act also gives the\nlegislative assembly the power to disallow the state of emergency, a power\nwhich Bill 61 is silent on. In my view, Bill 61 would not clearly conflict with\nthe Public Health Act<\/em> so as to render that disallowance power of the\nlegislative assembly inoperative. In any event, Bill 61 would dispense\nwith the already insufficient parliamentary control provided for\nunder the Public Health Act <\/em>(see my June 4 post here<\/a>), and give the renewal of the\ncurrent state of public emergency a duration completely out of proportion with\nthe renewals authorized by the Public Health Act<\/em>.<\/p>\n\n\n\n

Third,\nwhile the Public Health Act <\/em>does not allow the Government or\nthe Health Minister to amend any legislation, Bill 61 does add to the state of\npublic health emergency a \u201cHenry VIII clause\u201d, authorizing the Government\nto amend certain categories, and thus an undetermined number, of\nstatutes, excluding itself. Thankfully, the Henry VIII clause that was first\nproposed was considerably reduced by amendments. Notably, the idea of allowing\nthe government to amend any \u201crule that is impractical or too onerous to apply\nin the circumstances arising from the pandemic\u201d has been dropped. However, the\nupdated Henry VIII still goes far beyond the provisions of the Public Health\nAct<\/em> that define this regime. Not only do the provisions of that Act only\nempower the executive to derogate from legislation, as opposed to amending it, but\nthey also provide exceptional powers only in order to protect the health of the\npopulation, not to prevent or reduce any “harm arising” from a pandemic.\nThe wisdom and possibly even the constitutionality of Henry VIII clauses is debated<\/a> in Canada.<\/p>\n\n\n\n

Fourth,\nBill 61 would add a further executive power to the ones provided for in the\npublic health emergency provisions of the Public Health Act<\/em>: that of\ntaking \u201ctransition measures\u201d after<\/em> the termination of the state of\npublic health emergency. Meant to last for up to 90 days after the end of the\nstate of public health emergency in the original version of the Bill, they\nwould now last for at most 60 days. This is just one more sham compromise made\nby amendments to the Bill.<\/p>\n\n\n\n

Under the\nproposed law, the publication of certain proposed<\/em> exceptional\nmeasures would become optional, but the publication of all measures actually\nbeing adopted, except those of individual scope, would remain\nmandatory and would be a condition precedent for those measures coming into\nforce under the Regulations Act<\/em><\/a>. Exceptional measures will,\nhowever, be capable of being adopted sooner than under the\nlatter statute, and they will all be capable of coming into\nforce as soon as they are published.<\/p>\n\n\n\n

It is also\nworth noting that the Bill does not propose many substantive permanent\nchanges to Quebec legislation. The original bill would have only amended An Act\ncreating a government procurement center and \u201cInfrastructures technologiques\nQu\u00e9bec\u201d regarding the date of its coming into force. But the first amendments<\/a> to the Bill contemplated\npermanent changes to the legislation and regulations on liquor licenses and\nadvertising for alcoholic beverages. And yesterday\u2019s amendments envisage a few\npermanent but minor amendments to the Act respecting\ncontracting by public bodies<\/em><\/a>. Bill 61, therefore, significantly\nenhances the government\u2019s emergency powers, but it still falls short of the\nparadox that Karin Loevy<\/a> documents in other jurisdictions. Indeed,\na worrisome and paradoxical trend that she has noted in her brilliant\nbook on emergency powers throughout the world still seems to spare Quebeckers:\nthat governments in a crisis situation not only govern under less law, but take\nadvantage of the crisis to initiate major and permanent legal reforms\nstrengthening the powers of the executive and the public administration.<\/p>\n\n\n\n

Bill 61 may\nnot institute a permanent legislative overhaul in the Province of Quebec, a\nregime of enforceable unpublished regulations, or even an emergency regime of\nindefinite duration. But it is nonetheless far-reaching, over-broad and out of\nproportion with the constraints of the emergency provisions of the Public\nHealth Act<\/em>, which had been adopted especially in order to enable the\nexecutive to tackle a public health emergency such as the present pandemic. <\/p>\n\n\n\n

Bill 61 is,\nin a word, shocking. It is shocking in its form, which is a circumvention of\nthe Public Health Act<\/em>\u2019s rather soft strictures. It is shocking in\nthe breadth of the powers it confers on the government to derogate from the\nlaws of the province, a range of powers which is hardly necessary to deal\nwith the present pandemic or even to relaunch the economy, and which\ngo far beyond protecting the health of the population. The Quebec government has\nnever demonstrated that relaunching the economy in the aftermath of COVID-19\nrequires such derogations from such laws. Bill 61 is shocking in terms of the\nlength of time that is actually provided for future exceptional measures to be\nvalid. It is shocking in that it allows the Government to escape parliamentary\nscrutiny. And finally, it is shocking in its paradox, in that these\nincreased emergency powers are accompanying other \u201creturn to normal\u201d measures. <\/p>\n","protected":false},"excerpt":{"rendered":"

The Quebec legislature has been considering Bill 61 to \u201crestart\u201d the province\u2019s 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 …<\/p>\n","protected":false},"author":3364,"featured_media":3369,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36,34],"tags":[543,538,540,541,539,542,161],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3365"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/3364"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=3365"}],"version-history":[{"count":4,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3365\/revisions"}],"predecessor-version":[{"id":3372,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3365\/revisions\/3372"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/3369"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=3365"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=3365"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=3365"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}