MLAs approve legislation to take N.B. out of state of emergency order

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A committee of the New Brunswick legislature approved a bill aimed at smoothing the way back to legal normality when the province will no longer be living under an emergency order. (Maria Burgos/CBC - image credit)
A committee of the New Brunswick legislature approved a bill aimed at smoothing the way back to legal normality when the province will no longer be living under an emergency order. (Maria Burgos/CBC - image credit)

As the details of the Higgs government's COVID-19 reopening plan began sinking in Friday, MLAs debated a bill mapping the legal transition out of the province's pandemic state of emergency.

The legislature's committee on economic policy approved the legislation, which aims to smooth the way back to legal normality.

The government said this week it will end the emergency order in August, terminating all remaining COVID-19 restrictions, if 75 per cent of New Brunswickers have had two doses of vaccine by then.

"That wonderful day is coming, hopefully on or before Aug. 1, that I'm not going to have an order to sign," said Public Safety Minister Ted Flemming. "And I'm going to be very, very happy about that."

New Brunswick Justice and Public Safety Minister Ted Flemming said he looks forward to not having to sign a new state of emergency order, which has had to be renewed at least every two weeks since the start of the COVID-19 pandemic.
New Brunswick Justice and Public Safety Minister Ted Flemming said he looks forward to not having to sign a new state of emergency order, which has had to be renewed at least every two weeks since the start of the COVID-19 pandemic.(Jacques Poitras/CBC)

A gradual easing of some restrictions has been promised for later this month and for July 1 if other thresholds are met, but the emergency order would stay in place until the last ones are lifted.

Flemming said he was personally uncomfortable with the sweeping powers the government gave itself under the emergency order, but it was necessary to close borders and keep COVID-19 out of the province as much as possible.

"It goes against my grain as a libertarian, as a classic liberal, small-L," he told the committee.

"My personal view is that an emergency order should never be used except in the most dire emergency cases."

77 versions of emergency order

The province's Emergency Measures Act, invoked provincewide for the first time ever in March 2020, allowed the government to issue orders it could not legally issue otherwise.

It gave the provincial cabinet the power to authorize Flemming to sign a two-week order. The order must be renewed by cabinet order and can be amended at any time, also by cabinet order.

The minister said Friday morning there have been 77 different versions of the order in the last 14 months.

Restrictions on entry into New Brunswick and rules on masking and social distancing, for example, would not be possible without the order in effect.

"The order allowed us to protect our borders, and without the order, we could not keep COVID out, so we make an exception to civil liberties," Flemming said.

Friday's bill does not extend any of the emergency provisions, but in a few key areas it ensures the end of the order won't create new problems.

Legal deadlines extended

Under the order, New Brunswickers haven't been able to sue public officials, such as Public Safety officers or paramedics, for doing their work under the pandemic except in cases of gross negligence.

The bill prevents someone from suing those same officials for those same actions once the protections in the order expire.

"When the order dies, those people should not be subject to the sword of Damocles over their head," Flemming said.

The order also extended various legal deadlines, such as for the renewal of a vehicle registration.

Without Flemming's bill, people would suddenly be subject to fines for expired registrations the moment the emergency ends.

With the legislation in place, "when the order is over, nobody can go to that person and say 'I'm giving you a ticket because you didn't renew your vehicle registration on time,'" Fleming said.

Opposition parties in the legislature spent about an hour quizzing Flemming about the bill but raised no serious objections to it.

Green MLA Kevin Arseneau said he was disappointed elected members had no role in deciding when to end the order.

"I would have like to have seen some possibility of the legislature playing a role in that," he said.

Green MLA Kevin Arseneau wished the legislature had been given a say in the plan to end the emergency order.
Green MLA Kevin Arseneau wished the legislature had been given a say in the plan to end the emergency order. (Jacques Poitras/CBC)

Flemming explained that because MLAs had no role in invoking the order, they have no role in ending it either.

Flemming said one reason Premier Blaine Higgs created the all-party COVID-19 committee, which includes the three opposition party leaders, is to make up for that lack of legislative oversight.

The federal Emergencies Act, which has not been invoked during the pandemic, requires MPs to promptly debate a motion confirming the declaration.

The minister said he doesn't expect a new emergency order to be required if there's a future COVID-19 outbreak, but he wouldn't rule it out.

Existing Public Health powers "would be the preferable way to go" for a small flareup, but if there were community spread, "perhaps you would have to take the more extreme step of an emergency order. … It is difficult to answer because you don't know the degree."

People’s Alliance Leader Kris Austin wondered if the bill would thwart lawsuits challenging the constitutionality of the emergency order.
People’s Alliance Leader Kris Austin wondered if the bill would thwart lawsuits challenging the constitutionality of the emergency order.(CBC News)

People's Alliance Leader Kris Austin asked if the bill's provision shielding officials from COVID-related lawsuits also insulated the province from a constitutional challenge of the restrictions themselves.

Flemming said it did not.

"You're perfectly entitled to do that," he said. "This does not bar you from doing that."

Last June, the Progressive Conservatives introduced legislation to expand the government's emergency powers, only to withdraw it within days.

Backed off expanding police powers

It would have given police powers to stop people during a state of emergency and demand documentation to ensure they're complying with the emergency order.

Another section would have let the cabinet suspend provincial laws or municipal bylaws during a state of emergency without a vote in the legislature for 30 days.

Higgs said at the time that the bill was intended to simply clarify some powers the government was already using under the state of emergency.

But after an outcry from civil libertarians, legal schools and opposition parties, as well as two separate police shootings of two Indigenous people, the PCs withdrew the bill.

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