Review of Bill 37, An Act to Amend the Emergency Measures Act
On June 16, 2020, Motion no. 75, Referring Bill 37 to Committee was introduced and debated in the legislature. The motion passed by a majority vote and the bill was sent to the Standing Committee on Health and Social Development for further study of the proposed and potential amendments. The committee received input from the public on Bill 37, which is published below.
Motion No. 75
WHEREAS Government has tabled Bill 37, An Act to Amend the Emergency Measures Act, and many questions remain about the bill and its potential impacts;
AND WHEREAS the Legislative Assembly has the ability to refer bills to a Standing Committee for study;
AND WHEREAS the Standing Committee on Health and Social Development is the standing committee tasked with matters of justice and public safety;
THEREFORE BE IT RESOLVED that the House refer Bill 37, An Act to Amend the Emergency Measures Act, to the Standing Committee on Health and Social Development for further study;
THEREFORE BE IT FURTHER RESOLVED that the Committee invite representatives from each department of the provincial government to present on: how the circumstances of COVID-19 have affected and are affecting the department in question; and how the proposed powers would affect the department in question or the circumstances under which the use of the powers might be requested by the department;
THEREFORE BE IT FURTHER RESOLVED that the Committee solicit and consider input from the public on Bill 37, in the form and manner the Committee deems appropriate;
THEREFORE BE IT FURTHER RESOLVED that the Committee consider proposed and potential amendments to Bill 37, and make any recommendation that the Committee considers appropriate;
THEREFORE BE IT FURTHER RESOLVED that the Committee report to the House with its findings and recommendations within 14 calendar days of the passing of this motion.
Read the submissions to the committee
My view on this matter is that the committee not support the giving more power to government, but more importantly improve legislation where government becomes more accountable during State of Emergency. Declaring a State of Emergency is pretty serious business. And when these decisions are made then the information and people involved must show the rationale and time frame. It is simple, be Open and Transparent in a timely manner.
It is disappointing to allow such a short time period for input on an important piece of legislation.
It is also interesting to see the note regarding that written submissions will be posted on the Legislative Assembly website. I would like to see this extend to government, any input from government officials be made available, including meetings this committee has with staff.
Thanks, Leonard Rogers
To whom it may concern,
As a PEI resident, I certainly do not want any more of my freedoms taken away due to Covid. I feel that this is an excuse to take advantage of people’s fears in order to take on more control. If the government was actually serious about another outbreak, they wouldn’t be allowing hundreds of people into our province, including from provinces where the virus is rampant. It clearly is an excuse to gain further control which usually benefits the more powerful not the most vulnerable. In fact, if we were truly concerned about our vulnerable residents, we would put off allowing people from out of province onto the island and instead allow seniors in homes to see more than two members of their families and maybe, just maybe, allow them out of their residence once in awhile.
I thought the current government was doing ok despite the mournful tone of Heather Morrison each day when she addresses us about the virus however, this pushes things too far and shows that the Conservative government, regardless of how ‘progressive’ they try to suggest they may be, really aren’t very forward thinking at all. As it is, I question many of the rights I’ve had removed even though it is apparently not socially accepted to question the general narrative however, I certainly do not want my tax dollars to contribute going toward having my freedoms taken away. If COVID is truly a concern, hold off on allowing off island residents to come here. If I’m not allowed (without a suitable reason) to leave, then why should they be allowed here??
I don't believe the Emergency Measures Act needs to be amended. I believe the government needs to get with the times and develop protocols so that all members of the Legislative Assembly are able to participate and vote remotely and therefore allow government as a whole to continue to work. If they don't have appropriate internet at home you know they have access to it at their constituency office.
While they are at it they should also be worried about improving the internet access for rural users.
No changes to the emergency act without oversight from the legislative Assembly. No changes to laws of any kind without a majority vote from our elected MLA's.
Looks like the same power grab Trudeau tried. Don’t you dare! We will hold the greens equally to account.
The Government does not need additional powers in regards to the Emergency Measures Act. IMO, this is just a ploy to give them powers that they don’t need and we, as Islanders, certainly don’t need Government to have additional powers that they can then use against us.
The Prince Edward Island government has a state of emergency declaration which grants the provincial government powers to act accordingly in a state of emergency. This new amendment grants the government an extension of power after a state of emergency, why is this required? No other province or territory in Canada (to my knowledge) is making similar amendments to their state of emergency legislation. The government does not require this power and should continue operating under the current state of emergency legislation. If the sole purpose is to make the governments job easier and faster I think this amendment should have never been put in motion. It disregards every citizens right of democracy and is a motion which is only being passed because people are afraid. Being afraid is not an appropriate reason to grant the government more power.
This bill is unacceptable, the kind of thing one expects from an authoritarian state, not a democracy such as ours. This bill would remove the kind of oversight and protections our form of government affords it's MPs and citizens, turning a minority government that requires the cooperation of multiple parties into a single cabinet with unilateral power; make no mistake, the "as long as it's in the public interest," clause is a false promise under the guise of a populist illusion.
In the past few months I've watched as conservative governments here in Canada and around the world propose similar bills and legislation that has only one goal: a blank cheque for the pockets of those that don't want to be bothered with the responsibility such power usually comes with. We have done so well as a province and a country during this pandemic because of the kind of collaboration our democracy encourages, and I will not see such progress undone by political greed; This is not a dictatorship, Mr. King, no matter what emergency we face!
I do suggest the emergency act be amended. I do not agree that being locked up like a bunch of rabid animals is in the best interest of anyone. Do we really need the government to decide what is best for each individuals health? If one feels fear from the virus they should isolate and let me decide whether or not I need to. I consider it a gross violation of my rights as an individual and to my family. The measures taken to curb the spread of the virus had a detrimental effect on the mental health of many people, and should be examined in full and amended to better suit everyone not just those who chose to live in fear. More voices need to be heard from all parties. Transparency is a must.
The current laws available to government during the covid-19 pandemic appear to be adequate. In fact, they have been overused, so giving more power to a government is not in the interests of the people. There has been so little virulence in PEI that there is no reason why schools were not opened for the months of May and June, for example. The closure of provincial borders from the rest of Canada is not fair to people with family in other provinces. The government can already impose self-isolation and close businesses. The government can already impose fines upon people who do not comply. That is enough. The last thing PEI needs is an an all-encompassing, easy means for government to act when it feels an emergency is happening.
It is my view that there is no need at all for such an act, and I'm sure lots of others share this same view. I believe that radical new directions in government will not end well. We survived well with the current order of things, and even though the present administration may mean well, the power given under this proposed act could be used to overturn long standing patterns of democratic government. I strongly dislike the concept of passing laws that can have such inherent potential for serious abuse. Keep things as they are!!!!!
I say no to the proposed bill 37 in its current form.
Gives the gov. way too much power.
Without going through the bits and bites......you folks are all grown up in the Legislature so ensure you have " An Oversight Committee " to ensure that this deals with the Emergency at hand and a time frame for furtherance if aka current Pandemic COVID-19 is to continue and we have to do what we can in Saving Lives which is First and not The Economy which is Second but all under the auspices of the Health Chief and Premier for final decisions ie Health being First in this Issue......We cannot abuse Lives absolutely not.....Thank you so much for asking and these are my thoughts......The Government of the Day and the Health Team are doing tremendous job and have their lives on the line for all of us...Let us continue to respect the decisions of today and not have politician gain being mixed up in the Emergency Measures Act....Absolutely not........
Best Regards....Chester Llewellyn
In my opinion I do not believe Cabinet should have any special powers in an emergency situation. It is the job of the legislature to govern ths province and if cabinet is given special powers in an emergency situation it is in effect undemocratic and if the Peemiet and his cabinet want to change laws and or legislation for the good of the people, than there should not be any problem getting the approval of the legislature. If the opposition in the legislature do not agree with the change at least we the voting public will know what steps government wants to take before they do. There is too great a risk for abuse of this proposed change by this or any future government.
The powers that would be delegated to the Crown are an overstep in Bill 37 and are beyond the capacity of the legislature as they amount to the legislature relinquishing its legislative authority. Under Canadian constitutional law and practice, legislatures do not have the
power to abnegate their responsibilities. After listening I don't feel this bill will pass the Oakes Test and seems to be very unconsitutional.
Jeffery Warren Reynolds
I am very opposed to the PEI government to further disrupt the rights of residents of the province in what appears to be a power grab by enabling autocratic decisions without accountability. The people of PEI have been very cooperative and compliant in the present circumstances but it not an excuse to further erode the rights of individuals. I think that any government that would consider this is only a step away from Communism. Do not entertain the thought any further.
I am gravely concerned that the government is seeking additional powers in an already highly stressful situation. I understand that these measures are put in place to protect the people of PEI but I also believe that we live in a democracy that allows public freedom.
Why is there a sudden rush to gain more power at this time? I question the government's motives and whether or not they are still acting in the best interest of the Island people. We have all suffered losses during this season of "emergency" and will continue to
see the fall out over the next few years. I do not believe giving the government additional powers will be helpful or necessary. Our government acted to the best of their ability according to their experience; and I thank them for that. Because of their actions, we are living
in a place that is relatively safe and we are healthy. So why the need for more power if the current legislation is working?
The Bill 37 proposal would allow the Lieutenant Governor in Council to amend or suspend legislation without having to seek approval of the Prince Edward Island Legislative Assembly. This proposal is not in the best interest of the public, as there are no limitations on what could be suspended or changed. If existing legislation or policies are the problem: fix those; update and amend those appropriately and openly. Do not give Cabinet carte blanche in the event of a public emergency.
The PEI Teachers' Federation does not support the proposed legislation. Bill 37 undermines democracy by removing the powers and responsibilities of the legislature and undermines the rule of law by allowing arbitrary use of power. The proposed legislation would confer extraordinary powers on Cabinet; it reaches beyond what is required to achieve the Government’s objective. Government should work within the legislative process. If the Committee has any questions, please contact the PEITF.
Selina Pellerin, PEITF
Re: Bill No. 37
We are very much against this Bill 37 and suggest that you ‘throw it out’ as Justin Trudeau was required to do. It appears to have been a hastily crafted (9 days) afterthought, and a strategy of self aggrandizement, especially as you’ve performed well in this Covid crisis within our present parameters. Why do you need more powers? Please don’t waste the time of a Standing Committee. We have far more important issues on PEI that need your efforts: tackling systemic racism, housing, liveable wages, etc. Thank you.
Carol and Len Lang
Instead of working on a power grab, you should have been working to enable legislators to legislate remotely if needed in the future. The entire argument for the necessity of any part of this bill is essentially a concern troll, and you should be ashamed of your efforts to subvert democracy.
I am 100% against giving more powers to government during an emergency. Transparency and oversight is necessary.
Also PEI is refusing Canadians (often Islanders) living away to come to pei with a 14 day isolation agreement. Thats illegal under our constitution. Nobody should have to apply but of course monitored during isolation.
It is understandable why the government would want to bring these changes forward to the Emergency Measures Act; it would give them the ability to do what they have to do in a tighter timeframe where legislative approval would be a much too long and drawn-out process, and by the time all of the necessary legislation was passed or changed, it would be much too late to help people. The only question that I really have regarding it is what are some examples of situations in which these extraordinary powers could be used? The province just weathered through once of the worst health crises in our history without the need for any such additional powers. If we are able to close our borders, ban large group gatherings, and draw on millions of dollars for economic protection, it’s hard to justify the additional powers given that it seems many already exist.
The main problem that exists with the amendment as it stands is that it doesn’t provide enough accountability whenever laws are changed. We all want to believe that our government will do the right thing with the powers that they have, but I believe that’s a really naive and dangerous way to think as this won’t always be the case. If we’re looking to find ways to have government oversight or to make sure that they don’t overstep, amend the existing legislation so that a State of Emergency only exists through legislative approval (done over video conference if necessary) and not at the whim of the Minister. Also, there are many acts that exist that don’t really provide any sort of assistance whatsoever when it comes to protecting people’s health, so by restricting the number of acts that can be amended by these additional powers as the Greens have already proposed, it would help to limit changes that aren’t necessary.
To the Standing Committee on Health and Social Development,
We do not support the proposed Bill 37. We can not think of a situation that would require changes to any Act without a majority vote in the legislature, nor have we seen any rationale for this. If there is any such input from government officials or others, it should be made public.
There are two related matters that this Committee should address:
1. Are there changes needed for Legislative procedure to enable remote participation and voting by MLAs?
2. Are there changes that could be made to keep government more accountable, open and transparent during a State of Emergency?
Tony Reddin and Marion Copleston
June 24, 2020.
Thank you for the opportunity to comment on the proposed legislation ‘ An Act to Amend Emergency Measures Act.’
I am requesting an opportunity to present my comments to the Standing Committee established to review ‘An Act to amend the Emergency Measures Act.”
Covid-19 has wreaked chaos around the world including Canada and Prince Edward Island. Many people, particularly in leadership roles were suddenly cast into very difficult positions having to make the most responsible decisions of their lives without a road map and with the greatest concern for the protection of the people in our community and society. While best efforts led to the best possible results, no one got it perfectly right because that is rarely what happens in human societies.
It is the nature of human society and the hallmark of democracy that we take a critical look at what we got right and what we got wrong so that things can be better on a go forward basis. It is the nature of our society to view things critically and it is the duty of it’s citizens to express those views which is the basis of my comments today. While I appreciate the efforts of those in leadership positions I do think there are areas of our situation that need examination, particularly in light of the proposals contained in the Act to Amend the Emergency Measures Act, particularly in section 11.1 (1) and 11.1 ( 4) and 11.1 ( 5) .
Communities such as Kingston, Ontario are being noted as models in protection because under the leadership of their full time public health officer then initiated an early communication campaign coordinating all aspects of their community to early identify and treat covid. In a community of 200 000 with university, colleges , prisons, hosptials, old age homes, they have zero cases of active covid though covid is active in communities all around them. Kingston used skill, adequate resources and excellent communication to achieve their results and not draconian, sledgehammer authoritarianism. They are a good example and study case. PEI also has no active cases of Covid -19 which is largely and rightly attributed to it’s early shut down and being lucky not to have encountered a ‘super spreader’ early on such as occurred in Newfoundland.
In this unprecedented time, Islanders have to face five simultaneous crisis:
The covid – 19 crisis, an underlying medical resources crisis, a psychological response/ mental health crisis , an economic crisis and a democratic rights crisis.
1. The Covid- 19 crisis is real and to varying degrees a matter of concern in various juristictions. It will be a long time in passing and its’ effects will be defining for a generation.
During COVID each College of Physicians in Canada basically made their own statement concerning procedures. Basically each prioritized essential service to mean “emergency services” ie anyone who needs treatment immediately so that their life is not threatened (broken leg, heart attack). All other treatments are qualified as “elective”. This does not mean however that they are not necessary, it means that the surgery or treatment eg Chemo can be postponed without imminent danger to life. Kidney function could be upheld through dialysis. The definition of surgery varies according to specialty. Hospitals are required to accept the national guidelines in their local context in terms of deeming what is or is not important. While there have been no direct covid deaths on PEI there should be an examination of deaths caused by lack of access to surgery during this time so that improved alternative planning can happen on a moving forward basis.
2. An underlying medical crisis marked by a lack of resources not only to deal with covid 19 but to deal with delivering competent healthcare on a day to day basis aside from covid 19. For example there was one ventilator per 2000 people in Canada but on PEI there was only 1 ventilator per 15000 people. PEI is also low in medical personnel and hospital resources and could not deal with a Covid -19 crisis.
Canada rates poorly in international comparisons to developed countries in terms of access and care to medical resources particularly given the higher cost Canadians spend on health care comparatively. There are many studies that confirm this, OECD, Commonwealth etc.. PEI rates the poorest of any province in Canada with an ambulace service running at full capacity, the highest patient/doctor ratio, a low hospital bed/capita and with the oldest population in Canada projections of a worsening crisis.
One of the greatest threats to the health of Islanders is lack of family physicians. This threat has been noted in other provinces as a significant health threat causing death and suffering but the medical leaders on PEI have not taken that position. Canada has the financial and human resources to train an adequate number of doctors to serve it’s population. There is no valid reason why every Canadian does not have a family doctor but medical and government politics prevents this from happening. This is a critical matter that must be dealt with and has implications far beyond the death rates of covid -19.
3. Mental Health and psychological response crisis. There is ample documentation of the psychological response to covid 19 and the mental health issues that are arising. The hallmark of the crisis is that every Islander is shaken from their normalacy so there is no human interaction that is normal. Being people of habit the whole of society is stressed by the sudden change in living and this stress has taken it’s toll on all of us and a great degree on some of us.
4. An economic crisis that is unprecedented with business going out of business, jobs being lost and governments registering record defecits and debts.
5. A democratic rights crisis as civil liberties are suspended and living conditions imposed on citizens.
I think that of all the five crisis we face, the effects of the democratic rights crisis is the most threatening and lasting of the crisis on our society.
Act to Amend the Emergency
I object in the most strongest terms to the proposed legislation an ‘Act to Amend the Emergency Act’ and in specific three sections.
‘Section 11.1.1 On the making a declaration of a state of emergency or local emergency under section 9, and up for 90 days following the termination of this declaration, the Lieutenant Governor in Council, may, by order, suspend or vary the application or operation of an enactment, subject to the terms and conditions specified by the Lieutenant Governor Council in the order.’
This is the granting of absolute power to the government albeit under the claim or notion of some conditions. The notion of the province having absolute power if a state of emergency or local emergency is called gives me sleepless nights. Particularly as an individual who survived and witnessed first hand the consequences absolute power can have upon local citizens defending their rights such as in the occupation of Souris, PEI some 15 years ago. The herring trawler dispute saw an armed para military RCMP force brutalize local citizens and used all sorts of force of intimidation which was sanctioned by both provincial and federal governments and the local Island elected representatives provincially and federally. A shameful chapter in the history of PEI.
‘Section 11.1.4 the Lieutenant Governor and Council should not make an order under subsection (1) unless, in the opinion of the Lieutenant Governor and Council, the suspension of variation of all or part of the enactment is in the public interest.’
So then we must define what is in the public interest and how that is determined. Public interest is such a loose term as to have no meaning at all.
‘Section 11.1.5 For greater certainty, and without limiting the authority stated in subsection (1) to make an order, the Lieutenant Governor in Council may, in an order under subsection (1), vary, the application or operation of a deadline or time period in an enactment with retroactive effect, but the variation shall not have an effective date earlier than the date of the declaration made under section 9.’
I apologize, I am not able to comment because section 9 was not provided as part of the information package so I am unable to comment on this specifically other than to show my bewilderment and my alarm at giving a government unfettered power to retroactively create conditions which could put citizens in peril of criminal charges even though at the time, their actions were not criminal. Imagine this application at the herring dispute on the Souris wharf some 15 years ago which merits some study in the context of this proposed legislation. This possibility is beyond Orwellian and I am not even sure is the worst regimes in the world have such law.
Is it not key to understanding what constitutes an emergency, a state emergency, a local emergency? As that is the premise upon which absolute power would be enacted to the government. At the very least by not including section 9 in the Act to Amend the Emergency Measures Act, I am unsure if legislatures have the information or understanding to know what they are voting on. One would have to presume that legislators were aware of what section 9 was, and without inclusion of that information I am sure that is a stretch in belief at the level of competency of legislators. In fact, who on this committee can cite section 9 of what I presume is the emergency measures act. Section 9 was also referred to in section 1.1.1. but it was not included in the explanatory notes either. I would propose that among other things , the committee consider that in it’s present form the act to amend the emergency measures act is not in proper form to consider being passed due to the omission of this information in the support notes.
Discussion – the implication of Absolute Power in a Democracy
This type of legislation , that grants unfettered power to the government, is precisely the type of legislation that the Charter of Rights and freedoms was designed to oppose and it's exactly the type of legislation that the men and women of our country went overseas to fight and died in Europe to protect us from. Lest we forget.
Democracy is messy and hard work if you don't like messy and hard work you shouldn't be a legislator. There is no place for absolute power in a democracy, and even wartime necessitates the conduct of the cabinet and the necessity of the legislature. It is my understanding similar legislation to this Act to amend the Emergency Measures Act was introduced in Alberta and New Brunswick and was withdrawn due to the opposition to it. My recommendation to this committee is to withdraw this legislation , send it over the Horizon never to return as it is such an offensive affront to democracy as it is.
The essential question is Why do you need to control by decree : me?my family? My friends? My firm? my community? my province? Visitors to this province ? Though one could argue this absolute power in the law is meant to protect citizens from each other yet this proposed law and the people supporting it forego the very requirements of the rule of law by having a unilateral declaration to do as you please. In other words, a unilateral declaration to do as you please runs contrary to the notion of the ‘rule of law.’
The threat of absolute rule in a democracy
is a greater threat to democracy and it’s citizens
than any threat
that absolute rule purports to protect us from.
This realization is as old as democracy itself and as the Roman saying goes, “ Who is guarding the guardians?’
In a recent article Rex Murphy wrote :( National Post , 22.06.20) ‘ For centuries we have revered the “rule of law” as the central idea of just governance. We have the rule of law not so much to protect us from malign outsiders, but to protect us from ourselves in those moments when passion overrules reason, when from within society force is threatened to achieve political or other aims. We also maintain the rule of law to be the chain fence guarding each individual’s precious equality with all other citizens. And perhaps equally important, the rule of law protects each citizen’s right to be unmolested by the state power, and shielded from the sudden gusts of irrationality which, in moments of crisis or unrest are liable to visit any and every society.’
In early March I was in Halifax watching the Covid crisis slowly erupt . Upon my return to PEI I had to self isolate for 2 weeks so I had lots of time, like many people, to learn from television and the internet from leading credible experts in the world their view on covid -19.
I was astounded at the declaration of Premier King in press conferences, that he and his government will follow the experts,the advise of science as it were. It was an extraordinary abdication of responsibility; the elected leader deferring to support staff, part time under resourced, non elected staff at that. It is a leaders job to take under advisement the expert opinions and information but it is not the leaders job to follow, it is the leaders job to lead. So where did this brave new world lead us?
Public interest, Science and Absolute Power.
In my view, this abdication of authority by the Premier is a dereliction of duty which underlines the danger of this legislation. There is nothing more perverse in a democracy than proposed legislation whereby an unelected official in a part-time role such as the Chief Medical Officer of PEI could exert the most extreme policy without recourse being available to citizens and yet that is what we have here. Of course the legislation hides under the cloak of only doing what is the ‘public interest’ section 11.1.4 which is simply a cloak for a monster. The definition of ‘public interest’ is arbitrary under any measure including the temple god proclamations of experts and science.
The Guardian March 19, 2020 an extraordinary quote was credited to Dr. Heather Morrison, Chief Medical Officer of PEI.
‘If that was to happen in P.E.I., there would be 3,000 deaths. It reinforces to me why we need to make these kinds of measures.”
No credible source in the world was forecasting a death rate of 2% of the population or anywhere close to it or a fraction of it. it was an outlandish projection yet it lead to an imposition of power that suspended civil liberties and encouraged citizens to snitch on each other for close contact. Snitching as a government policy I had only ever heard of when applied to communist Russia, Nazi Germany, Totalatarian states such as China, North Korea and Iran. Yet here we have it in the birthplace of confederation, Prince Edward Island. Citizen snitching, an official government policy established by an elected government granting power to an non elected official based on a false premise but in the ‘public interest’.
More recently I read on June 24, The Guardian a letter by Harold Dunstan :
‘On April 13, the chief medical officer released projection modelling of the impact tha coved could have on the province . the projections were put together by experts including provincial epidemiologists , and forecast between nine and 900 deaths by June 1, depending on whether there were strong, or mild, control measures. ‘
These are exactly the examples of whereby the government can define policy and action based on their definition of the ‘public interest’ suspend civil liberties and get it so wrong.
We will probably never know if these projections of 3000 or 900 deaths were simply the best attempt to do the best thing? based on facts or fancy? nor do we know if they were nefariously used as the basis to suspend civil liberties in the purported ‘public interest?’ Or simply and exercise in power.
What we do know is that they got it very wrong and thus stand as shining examples of the dangers of this legislation that reports to use the ‘public interest’ to suspend civil liberties and government to have virtually a free hand in a Democratic society. Was it in the public interest for the government to send an armed para military force to occupy Souris for a week as fishermen opposed a corporation as they decimated an onshore fish stock? Is it in the public interest to have citizens snitch on each other on a premise of false ‘scientific’ projections ? Is it in the ‘public interest’ for citizens to lose liberties based on a false premise? In a democracy nothing is more dangerous, nothing is more wrong and yet the government proposes to have the power to do just that.
Physcians for Life.
‘Ontario Health is considering implementing a triage protocol during the COVID-19 pandemic to guide decisions on whom gets ICU treatment when the healthcare system is overwhelmed. This document is important to review since the triage protocol will reflect what kind of society we are and will impact what kind of society we will have become when the pandemic is over. As with every policy document, there is a philosophical approach which underlies it.’
Scientific fact or fiction? Abortion as an essential procedure ? The public interest and science ?
As was previously noted there is the question of people suffering and possibly dying due to the suspension of various medical services. One example of the arbitrary nature of what is deemed scientific and what is deemed to be in the ‘public interest’ is how abortion was treated. At the same time some essential medical services were discontinued, abortion services were deemed essential services even though abortion is a life destroying procedure and not a life-saving operation. So the question at hand is –How does one define “life-saving” and if it means, what it says, how does this allow for abortion services to be qualified as essential if no life is saved and in fact a life is taken?
Also due to the controversial political nature of abortion whereby the claim of individual rights opposes the right for a baby to thrive and survive is not necessarily a decision in the public interest rather it is a political determination of what the public interest is and a political determination interpretation of the public interest. There is not always a definitive public interest and thus it is inappropriate to use ‘public interest’ as the basis to allow for absolute power in a democracy. This type of decision to declare abortion essential during the pandemic while at the same time other life saving services are non-essential is obviously not a decision based on science. This example of how abortion was treated during the pandemic is illustrative of the flexible nature of what is deemed to be scientific and what is deemed to be in the public interest and highlights the extreme danger of the proposed legislation before the committee.
Father de Souza , ( National Post , Jun 12, 2020) “ Scientific results tell us what is happening. They do not tell us what to do about it. ….. So when the Prime Minister took a knee in a jam-packed demonstration on Parliament Hill , he was not following the science. After all, the science of public health told us that it was so dangerous for a person to take two knees in an empty cathedral that all the churches were closed. That’s the point, we don’t ‘follow the science’; we take note of scientific results and then make policy decisions.”
Now in the face of having gotten it so wrong on the matter of death projections the PEI government wants to expand its power to the ability of having absolute power section 11.1.1, by having the power to amend any legislation even retroactively! Section 11.1.5. This is a logical fallacy to be polite. It says ‘We got it very wrong but we are doing well so we need more power even if we get it more wrong in the future.’
The government reliance on incompetent projections, the ability of those projections to instill fear all without the ability for the legialative assembly to do it’s role in examination and comment on government action is an egregious breach of the principal of responsible government. More accurately described as an affront to democracy we cherish. Akin to the suspension of the federal parliament, It is madness that should be refused by all citizens and all legislators on all levels.
Due Process – Has it happened ?
Not only is this legislation one of the most intrusive proposed legislation in our lifetime , it is rushed. I heard about it on the radio on Tuesday, wrote my reply on Wednesday and submitted it on Thursday.
So where is the Pei legal community on this? Where is the learned legal opinion? the experienced? Where is the seasoned leadership in the legal community making a vital contribution to society ? Where is the public objection by senior legal counsel ? Or are the lawyers all busy chasing government money and opportunity and thus remain silent on this the most intrusive legislation of our time? For not raising a public outroar i call the legal community selfish, self-absorbed, self-centered and completely abrogating its duty of public responsibility.
This legislation is rushed. I heard about it on a news cast and had to quickly cobble together a response. Is it down to the commons including a ragged merchant. This is a proposed change to the very nature of our govenance and there is no study on it, no rebuttal , no learned legal opinions. Where are they? A sneaky rushed job is not the way to change the nature of governance in a democratic society.
I think it is highly questionable that this legislation would survive a legal challenge in that it is most likely an overreach of constitutional powers of the province and a breach of the Canadian Charter of Rights. Absolute power is the ability to do anything without recourse. There is the expression ‘Absolute power corrupts absolutely.”
An example of this is the judiciary. On PEI the judiciairy is appointed more on a poltical basis than outstanding jurisprudence, yet judges have absolute power in making decision. Personally I had never a guy apppeared before a the judge refusing me a motion date which is a breach of the law itself and and me having no direct legal recourse. Is this the type of society we want whereby government can flout the law and it’s citizens have no recourse?
Fortunately I was able to work around my situation because I could rely on the law but in this proposed legislation, with the government able to do what it wants even retroactively, it is the height of danger in a democracy. Who is the hidden author or authors behind such a nefarious undertaking ? Why do they have the protection of anominity ? Where is the public scrutiny and debate ? Does not democracy demand they show themselves and this issue be scrutinized with the best minds rather than rushed thru in the shadows of the excuse of crisis as if this legislation already has force.
Government is asking for absolute power in it deems to be emergency and in the public interest, state emergency or local emergency, whatever local is deemed to be? Whatever ‘public interest is deemed to be.” The act to amend emergency measures act as presented is a 5th rate piece of legislation put together by hidden fourth-rate minds, supported by third rate influencers, is not good enough to be second rate anything but it is a first-rate attack on our democracy.
There is no more extreme circumstance in a democracy than the threat of absolute power . Absolute power is absolute extremism and absolute extremism is a counter thesis to a liberal democracy which we cherish and for which others have died for and still people are willing to fight to protect.
A Churchill famously quoted, ‘democracy is the worst form of government except for all the others.’ and we've seen all the others in China, North Korea, communist Russia, nazi Germany and we don't want any of those forms of government with absolute power here . It is an affront to the memory and sacrifice of those who fought in our wars and died in the fields of Europe and elsewhere to have a proposal for terms of absolute power before the legislature. There is a big question as to what constitutes a local emergency or a state emergency? The claim of ‘public interest’ is but a disquise for a terrible and dangerous monster, the justification to grant absolute power, and this proposed legislation must be disposed of for the perverse proposal it is.
So I ask Islanders, do not Tire. Do not support this legislation. Thomas Jefferson told us ‘the price of democracy is eternal vigilance ‘. Do not Tire. Father Moses Coady told us ‘ work until the human race comes of age’ Do not tire. When Benjamin Franklin was asked what form of government did the founding fathers of the USA form he replied, ‘it is a democracy if you can hold it.’ Do not tire.
For my part, as a citizen I shall do my utmost to not tire of the requirements of democracy, to be vigilant and to oppose tyranny as is our duty as citizens. If this legislation passes I assure you that I shall be in contact quickly with my friends at the ‘ Justice Center for Constitutional Freedoms’ and will be making every effort to mount a legal challenge to this legislation in that it is a violation of the Canadian constitution and the Canadian Charter of Rights and Freedom.
I thank you for the time to present to the Standing Committee today.
Alan E. MacPhee
June 25, 2020
Dear Mr. McNeilly, Chair
Standing Committee on Health and Social Development
Thank you for your correspondence of June 22, 2020 seeking the input of the Law Society Legislation Committee, on or before June 25, 2020, on the proposed Bill No. 37. As you may be aware, the Law Society’s Legislation Committee reviews legislation that directly impacts Law Society members and which has been referred to the Committee by Council of the Law Society. Following receipt of your letter, the Law Society Executive directed me to seek input from the Legislation Committee on the proposed Bill. We did so and given the short timeline for response, have received the input noted below for your consideration.
We wish you the best with your consultation process.
Ewan W. Clark
Legislation Committee, Chair
Input received from Committee Members on Bill No. 37
- As originally presented, Bill 37 stood to grant extraordinary powers to the Lt-Gov-in-Council. Notably, upon a declaration of a State of Emergency under the Emergency Measures Act, the Lt-Gov-in-Council would have been able to suspend or vary the application or operation of any provincial enactment via a simple Order-in-Council, subject only to the terms and conditions specified in the OiC & the "opinion of the Lt-Gov-in-Council" that the suspension or variation was in the public interest.
- I fully appreciate that Government brought forward Bill 37 in good faith to try and ensure PEI's public services and systems could operate as smoothly & safely as possible in the event of future COVID-19 disruptions. That said, as originally presented, Bill 37 raises multiple potential concerns. Some of those are democratic/political considerations, but others raise questions around the constitutionality of the selected approach, the rule/practice of law, and the administration of justice in the province. I believe that at least two of the LSPEI's core objects are engaged by this proposed legislation: 1) upholding & protecting the public interest in the administration of justice, and 2) upholding & protecting the interests of our members.
- Subsequent amendments brought forward by Minister Thompson and the Official Opposition have softened the original Bill 37 somewhat.
- I personally feel that individual members of the LSPEI should be advised of Bill 37 & the opportunity to offer any thoughts, or to make submissions as individuals to the Standing Committee.
- It’s a shame the deadline is so tight.
- I saw this article put out by McCarthy’s which does a good job of discussing the legal context and limitations on a government’s powers under these circumstances. Interestingly, the article seems to assume governments are bound by enactments (not just the emergency measures act). https://www.mccarthy.ca/en/insights/articles/covid-19-limits-governments-emergency-powers
- I think there would be value to have a submission from the LSPEI which explains the legal limits and why the nature of the amendment to allow the executive branch to suspend or vary the operation of an enactment is so significant. While I am sure there are examples of statutory requirements which were inconvenient, or worse – not in the public interest to respond to a pandemic, laws represent the main limits on the government actors to respect limits to their authority (and creating the opportunity for legal recourse when that is not done). My view, at least, is that giving the executive the ability to suspend statutory limitations on what government can do (i.e. what laws it must follow) is one of--if the --most drastic steps a legislature can take.
- I don’t believe other jurisdictions, including Parliament, have seen the need to take this step and were able to reconvene the legislatures as required to pass amendments. The recall of the legislature should be first required and the limitations the Legislative branch has placed on the Executive branch should only be suspend where the Chief Health Officer has ordered the legislature not to be convened.
Thank you for making the public able to comment, and providing what others have written. I do think the 4PM Thursday deadline is a bit pinched for such an important issue to be commented on.
I think many people feel this, despite amendments and criticism by the Official Opposition and Third Party, is a bit too much of a Bill, and would prefer to see government work on improving legislation to allow remote meeting of MLAs from all parts of the House, not just Executive Council, to "gather" and deal with issues. I also think it would be helpful to hear from citizen watchdog groups about this Bill in particular, before it would go forward.
Thank you to the members of the Standing Committee - and to all members of the Legislative Assembly who voted in favour of Motion 75 - for providing members of the public with an opportunity to submit their comments and concerns respecting Bill 37 (and the proposed amendments thereto).
Given that there are so many things weighing upon the hearts and minds of Islanders right now, it is unfortunate that the timeline for public input on Bill 37 imposed upon the Standing Committee by Motion 75 is so tight. Many people who might have offered useful feedback to the Standing Committee simply haven’t had an adequate chance to do so. Some people may be intimidated about offering public comments, for others the Bill may seem complex or daunting to address. Even for professionals and experts, the tight timeline presented challenges. I have heard concerns directly and indirectly from other lawyers within the province that the time provided was insufficient.
Personally, I wish this submission could have been much more comprehensive as well.
However, I am encouraged by the choice to send Bill 37 to the Standing Committee. I believe that sending Government Bills to Standing Committees for deeper study - with adequate time provided for doing so - should be a more common practice in PEI (if not the ordinary Rule).
I approach the issues raised by Bill 37 from several perspectives.
First, I approach Bill 37 as a citizen who believes strongly in Canada’s democratic system and its core principles. I’m talking about things like responsible government, the division of powers between the federal and provincial levels of government, the Charter of Rights and Freedoms, and the rule of law. I care deeply about Parliamentary democracy.
Second, I approach Bill 37 from the perspective of a person with a legal education (UNB LL.B, 2007) and over a decade of experience practicing law in our province. I have been a member of the Law Society of Prince Edward Island since June 2008, and I currently sit on the LSPEI’s Legislation Committee. However, to be clear, the views expressed in this submission are entirely my own - I am not making representations on behalf of the LSPEI, its Legislation Committee, or my employer.
Third, I approach Bill 37 as someone who has had a lifelong interest and involvement in politics, but who has long believed that good governance and public policy (preferably of a progressive nature) are more important than partisan election outcomes. I first joined a political party at the age of 14. I’ve held memberships in multiple provincial or federal political parties over my lifetime, and I have either contributed to or voted for candidates representing other parties still. However, since 2017 I have not held a membership in a political party, nor have I participated openly and actively in the affairs of any party.
When it comes to the relationship between the separate branches of government in Canada (whether at the federal or provincial level), I fully endorse this statement taken from the only official study guide for the Canadian citizenship test:
“The interplay between the three branches of government — the Executive, Legislative and Judicial — which work together but also sometimes in creative tension, helps to secure the rights and freedoms of Canadians.”
The global pandemic has presented enormous challenges to governments everywhere, has exposed gaps in many of our systems, and highlighted inequities that have always existed but often went unseen. I agree with the overwhelming majority of Islanders that our Government has generally done an outstanding job in responding to an unprecedented set of challenges. While the leadership of Premier King and Chief Public Health Officer Dr. Heather Morrison has perhaps been most visible, it is the hard work of thousands of public servants that has carried our province through the current Public Health Emergency (since March 16th) and the province-wide State of Emergency (since April 17th).
The challenges of COVID-19 continue to disrupt the lives of all Islanders. Compared to many other jurisdictions, PEI is emerging from the early stages of the pandemic relatively unscathed from a public health perspective. But even as the province re-opens, and life returns to “normal” (meaning the “new normal” of the COVID era), people are still worried. Islanders are worried about their job security; the future of their businesses; childcare arrangements; paying their rent or mortgage, and other bills; the well-being of loved ones secluded in long-term care facilities; and the health and safety of family members, friends, and themselves.
I appreciate that the Government brought forward Bill 37 in good faith to try and ensure PEI's public services and systems can operate as smoothly and safely as possible in the event of future COVID disruptions. That said, I do not believe that our Government has made a persuasive case that justifies why it requires the extraordinary powers proposed in Bill 37.
As originally proposed, Bill 37 was overly broad and problematic in multiple ways. It arguably represented an unconstitutional “abdication” of legislative authority to the Executive. In extraordinary times, more transparency, accountability & oversight of Government decisions & actions is what builds public confidence. Parliamentary democracy can be inconvenient and time-consuming, but that’s how our system works.
The amendments brought forward by both Minister Thompson and the Leader of the Opposition have improved Bill 37. The exclusion of certain statutes from variation or suspension by Government is positive, though I would likely add dozens more to that list. As well, the restrictions to limit what kinds of provisions are positive. But they do not go far enough.
While additional amendments to Bill 37 could improve it further, they could also make it more convoluted. Given the present state of relative “normal” that PEI is finally beginning to enjoy, I question whether the time and attention required from both Government and the Legislature to fix Bill 37 would be the best use of valuable time. Because COVID times have not ended, and the virus will be back on our shores.
Instead, I suggest the Legislature puts Bill 37 on the backburner. Before talking about the emergency powers another branch of government needs to function during the pandemic, the Legislature needs to ensure IT is able to safely operate during COVID’s second wave, or subsequent waves thereafter. This means discussions around what changes are required to the Rules of the Legislative Assembly, or any procedural or logistical hurdles to be overcome in order to allow the entire Legislature to safely and fully operate during any and all pandemic days ahead, whether virtually or in the Coles building.
Our 27 elected MLAs (and the staff who directly support them & the operations of the Legislative Assembly) are arguably PEI’s most essential workers. Other than the Crown’s representative herself, nobody in Government - not the Premier, not any Minister or Deputy Minister, not the CPHO - can prevent the Legislative Assembly or its Committees from meeting, or dictate how MLAs meet, to do the people’s business.
In making these submissions I am not questioning the intentions or good faith of the Executive - Premier, Minister Thompson, other Cabinet members, political staff, Government lawyers - who authored, approved & brought forward Bill 37 in its original form. Overwhelmingly, the Island public agrees they have done exceptional work in guiding our province through the early phase of the pandemic. But I believe that the Legislature is the most essential service in Island democracy.
Jonathan B. Greenan
Standing Committee on Health and Social Development