For almost a year now, the government has issued various “orders in council” and “ministerial orders” in response to the COVID-19 pandemic. Here’s what you need to know to better understand the government’s powers during a public health emergency.
Tools to act quickly
The government has the power to issue decrees (orders in council) and ministerial orders. These allow the government to act quickly and do not require a long and complex process to enact. They are essential tools for the government to respond to an emergency.
A decree (order in council) is made by the provincial Cabinet Office. A ministerial order comes from a single minister.
The power to issue decrees and ministerial orders is usually found in a law.
To learn more about how laws are created, read our article “Laws of Quebec and Canada”.
During the pandemic
Quebec declared a state of emergency on March 13, 2020 using the Public Health Act.
The Public Health Act allows the government to declare a state of emergency due to a public health emergency by issuing a decree. The state of emergency must be renewed every 10 days by a new decree. The Quebec government has renewed the state of emergency more than 40 times since March 13, 2020.
Once a state of emergency has been declared, the Public Health Act gives the government special powers. This includes the power to put in place measures to protect public health. For example, the government used decrees and ministerial orders to: close restaurants, make the use of masks mandatory in enclosed public spaces, and to define what an “enclosed public space” means.
Is it possible to challenge a measure put in place by decree or ministerial order?
Yes. You can challenge a measure put in place by decree or order the same way you would challenge a law or regulation – by going to court. The court will consider both sides of the argument and has the power to declare a measure unconstitutional. If declared unconstitutional, this means the measure violates either the Canadian or the Quebec Charter. These are the supreme law of the country and of the province. They define the powers of the different levels of government and the rights of citizens.