The use of extraordinary government powers to protect public health in light of COVID-19 in Canada

Canada is facing an unprecedented public health situation with the rapid spread of the coronavirus (COVID-19). During serious circumstances such as these, federal, provincial and territorial governments have wide-ranging powers to protect public health and may seek recourse to special powers through the declaration of a state of emergency or public health emergency.

Federal national emergency power

Under the Emergencies Act,¹ the Government of Canada (Federal Government) can—but has yet to—declare a national public welfare emergency in response to COVID-19.² In the context of COVID-19, there are three requirements to declare a national public welfare emergency: one, there must be reasonable grounds to believe COVID-19 is resulting in a danger to life that is so serious as to be a national emergency; two, no other law under Canada can effectively address the emergency; and three, the nature of the emergency must exceed the capacity or authority of the provinces to deal with the issue, or COVID-19 must seriously threaten the ability of the Federal Government to preserve the sovereignty, security and territorial integrity of Canada. Making such a declaration would bestow upon the Federal Government sweeping powers to control the management and movement of people, goods and property.

Specifically, under the Emergencies Act, the Federal Government has the following powers:³

• to regulate or prohibit travel to, from or within any specified area;
• to evacuate people and remove personal property from any specified area;
• to demand the use, supply or disposition of property;
• to authorize or direct any qualified person to render particular essential services;
• to regulate the distribution and availability of essential goods, services and resources;
• to make emergency payments; and
• to establish emergency shelters and hospitals

As the Federal Government has never invoked its powers under the Emergencies Act, it is difficult to determine exactly how the powers would be exercised. In addition, the Emergencies Act does not define what constitutes “essential goods, services and resources”, and it would be left to Parliament to decide what falls within that definition.

However, though the Federal Government has yet to invoke the Emergencies Act, it has taken steps to control the spread of COVID-19 through the Quarantine Act.⁴ Under the Quarantine Act, the Federal Government has the power to: control transportation, and entry to and departure from Canada;⁵ screen persons entering Canada;⁶ establish a quarantine station anywhere in Canada; take over facilities for temporary use as quarantine facilities to protect the public;⁷ or order people to isolate.⁸The Quarantine Act also provides for serious enforcement powers, as any person who refuses to cooperate may be subject to fines or terms of imprisonment.⁹

Most recently, the Federal Government announced an Emergency Order under the Quarantine Act to require any person entering Canada by air, sea or land to self-isolate for 14 days regardless of whether they are showing symptoms of COVID-19.¹⁰ Failure to comply with the Emergency Order may result in a fine of up to $750,000 or imprisonment for six months. If an individual contravenes the Emergency Order and, while doing so, causes risk of imminent death or serious bodily harm to another person, that individual could be liable for a fine of up to $1 million or imprisonment for three years, or both.¹¹ To date, the Federal Government has also invoked the Quarantine Act to limit the travel of most foreign nationals into Canada;¹² to quarantine travelers from Wuhan, China at a quarantine centre in Trenton, Ontario;¹³ and to quarantine travelers returning to Canada from cruise ships in Japan and California.¹⁴

Provincial and territorial emergency power

Like the Federal Government, provinces and territories can declare a provincial or territorial state of emergency under certain conditions, for example, when there is an emergency that requires immediate action that cannot be satisfied with resources normally available. COVID-19 meets these criteria. Accordingly, the following provinces and territories have declared states of emergency in response to COVID-19:

State of emergency

• Ontario declared a state of emergency on March 17, which will remain in place until March 31, 2020.
• British Columbia issued a press release on March 18 declaring a state of emergency, which is “initially in effect for 14 days … and may be extended or rescinded as necessary.”
• Saskatchewan declared a state of emergency starting March 18, with no end date provided.
• New Brunswick published a press release declaring a state of emergency on March 19, with no specified end date.
• Manitoba issued a news release on March 20 declaring a state of emergency “effective immediately, for a period of 30 days.”
• Nova Scotia declared a state of emergency on March 22 to remain in effect until noon on April 5, 2020.
• The Northwest Territories declared a state of emergency on March 27, retroactive to March 24.
• Yukon issued an Order in Council on March 27 declaring a state of emergency.

Provincial and territorial state of emergency powers are similar to those granted to the Federal Government under the Emergencies Act. Under the applicable provincial and territorial legislation, governments have a broad array of powers, which may include the power to: acquire and utilize property necessary to deal with the COVID-19 emergency; procure or fix prices for necessities, such as food and housing, for the duration of the state of emergency; control or prohibit travel to, from and within the province or territory; or authorize entry into any building or onto any land without a warrant.¹⁵

Public health emergency

If the situation in a province or territory is serious, but has not yet reached the level of a state of emergency, provinces and territories may declare a public health emergency. Compared to a state of emergency, a public health emergency provides similar but slightly more limited authority for governments to implement safety and security measures in their regions. The following jurisdictions have declared public health emergencies:

• Québec executed an Order in Council declaring a health emergency on March 13, with no specified end date.
• Prince Edward Island declared a public health emergency on March 16, with no specified end date.
• Alberta released an Order on March 17 that declared a public health emergency that “remains in effect until rescinded by the Chief Medical Officer of Health.”
• Nunavut issued a news release declaring a public health emergency on March 18, to stay in effect “until further notice.”
• Newfoundland and Labrador declared a public health emergency, effective March 18, with no specified end date.

Governments who enact a public health emergency may have the power to limit mass gatherings, close public spaces, authorize warrantless entry into any building or onto any land, distribute essential healthcare and medical supplies, or conscript persons required to meet the needs of an emergency.¹⁶ Governments may also impose fines or prison terms for any contravention of a public health emergency order.¹⁷

Privacy rights vs. public health interests

In view of public health concerns, certain emergency statutes set aside particular privacy rights during a state of emergency. Specifically, the Quarantine Act gives the Federal Government the authority to encroach on the usual privacy rights of travellers or conveyance operators, and confers exceptional authority on the Federal Government and its agents to collect and disseminate personal and business information.

The Quarantine Act can require individuals to present themselves for various health examinations, to answer all reasonable questions, or provide information or records in their possession, or to present their personal belongings or cargo for inspection and sterilization. The Federal Government also has the authority to communicate confidential business and personal information (including name, sex, age, travel itinerary and home address) to provincial public health authorities or, in certain circumstances, police officers.

Furthermore, as discussed above, federal, provincial and territorial state of emergency legislation may authorize designated individuals to enter premises, be they business or private, without a warrant or permission of the owners/occupiers.

During an emergency, provincial public health acts give health official extended authority to collect, use or disclose personal information that they could not otherwise collect, use or disclose, and to do so in a manner not consistent with the usual form required. Provincial privacy legislation complement these extended powers, as some provincial privacy statutes permit the disclosure of personal information without consent if there are reasonable grounds to believe someone’s health is at risk.¹⁸ Accordingly, personal health information related to COVID-19 of a person suspected of suffering from the virus is not protected, and certain individuals—primarily health officers—may have a duty to disclose the health information in a manner necessary to protect the general public health.

Penal sanctions

To ensure compliance with state of emergency orders, emergency legislation also authorize federal, provincial and territorial governments to impose sanctions for defiance of such orders. Under the federal Emergencies Act, the Federal Government has the authority to impose up to a $5,000 fine and five years of imprisonment for any contravention of an order or regulation made under the Emergencies Act.¹⁹ At the provincial level, governments may impose fines on businesses or individuals, or impose terms of imprisonment.²⁰ Maximum fines range from $640²¹ and $100,000²² for individuals, and between $10,000²³ and $10 million²⁴ for corporations. Maximum prison sentences for individuals, or corporate directors or officers range from six months²⁵ to one year.²⁶

Provincial public health acts impose similar fines and prison terms.²⁷ Maximum fines under public health legislation range from $2,000²⁸ to $100,000²⁹ for individuals, and between $10,000³⁰ and $1 million³¹ for corporations. Though there are no stipulated prison sentences for corporate directors or officers, maximum sentences for individuals range from six months³² to one year.³³

For more information, please contact Rose M. Carter, Q.C., Lead for Dentons Canada Health Law group, or Dina Awad.

The authors thank articling student Christina Emberley for her valuable assistance.

1. RSC 1985, c 22 (4th Supp) [Emergencies Act].
2. Ibid, s 6(1).
3. Ibid, s 8(1).
4. RS 2005, c 20 [Quarantine Act].
5. Ibid, ss 35, 10, 58.Text of footnote 5
6. Ibid, s 12.
7. Ibid, ss 6–7.
8. Ibid, s 16(2).
9. Ibid, ss 67–72.
10. Public Health Agency of Canada, “New Order Makes Self-Isolation Mandatory for Individuals Entering Canada” (25 March 2020).
11. Ibid.]
12. Public Health Agency of Canada “Coronavirus disease (COVID-19): Canada’s response” (last modified 24 March 2020).
13. Public Health Agency of Canada, “Statement from the Chief Public Health Officer on the Release of Repatriated Canadians from Quarantine Following 14-day Stay at CFB Trenton” (21 February 2020).
14. Public Health Agency of Canada, “Statement from the Chief Public Health Officer on the Release of Repatriated Canadians from Quarantine Following 14-day Stay at the NAV Centre” (6 March 2020); Global Affairs Canada, “Government of Canada Evacuating Canadians on Board Gran Princess Cruise Ship” (8 March 2020).
15. Emergency Management and Civil Protection Act, RSO 1990,c E.9, s 7.0.2(4) [ON Emergency]; Emergency Program Act, RSBC 1996, c 111, s 10 [BC Emergency]; The Emergency Planning Act, SS 1989-90, s 18 [SK Emergency]; Emergencies Measures Act, RSNB 2011, c 147, s 12 [NB Emergency]; The Emergency Measures Act, CCSM c E80, s 12(1) [MN Emergency]; Emergency Management Act, SNS 1990, c 8, ss 14, 16 [NS Emergency].
16. Public Health Act, CQLR c S-2.2, s 123 [QC Public Health]; Public Health Act, RSPEI 1988, c P-30.1, s 49(2) [PEI Public Health]; Public Health Act, RSA 2000, c P-37, s 52.6(1) [AB Public Health]; Public Health Act, SNWT 2007, c 17, s 33 [NWT Public Health]; Public Health and Safety Act, RSY 2002, c 176, ss 3(2), 4.5–4.6 [YK Public Health]; Public Health Protection and Promotion Act, SNL 2018, c P-37.3, s 28 [NL Public Health].
17. For example, see: Public Health Act, SBC 2008, c 28, s 108 [BC Public Health]; Health Protection Act, SNS 2004, c 4s, s 71 [NS Public Health]; QC Public Health, supra note 16, ss 139–142.
18. See, for example: in British Columbia, BC Public Health, supra note 17, s 54(1)(k) and Personal Information Protection Act, SBC 2003, c 63, s 18(1)(k); in Ontario, the Health Protection and Promotion Act, RSO 1990, c H.7, s 77.8 and Personal Health Information Protection Act, 2004, SO 2004, c 3, Sched A, s 40(1) [ON Public Health]; in Alberta, AB Public Health, supra note 16, s 53(4)–(5) and Health Information Act, RSA 2000, c H-5, s 35(1)(m)(ii); and in the Northwest Territories, NWT Public Health Act, supra note 16, s 38(1)(d) and the Health Information Act, SNWT 2014, c 2, s 58.
19. Supra note 1, s 8(1)(j).
20. Emergency Management Act, RSA 2000, c E-6.8, s 17; BC Emergency, supra note 15, s 27; Emergencies Measures Act, SNu 2007, c 10, s 33; Emergency Management Act, SNWT 2018, c 17, s 22; Civil Emergencies Measures Act, RSY 2002, c 34, s 11; SK Emergency, supra note 15, s 16; NS Emergency, supra note 15, s 23; ON Emergency, supra note 15, s 7.0.11; MN Emergency, supra note 15, s 20; Civil Protection Act, CQLR c S-2.3, s 128; NB Emergency, supra note 15, s 24; Emergency Measures Act, RSPEI 1998, c E-6.1, s 19; Emergency Services Act, SNL 2008, c E-9.1, s 22.
21. NB Emergency, supra note 15, s 24.
22. ON Emergency, supra note 15, s 7.0.11.
23. See, for example: SK Emergency, supra note 15, s 16.
24. See, for example: ON Emergency, supra note 15, s 7.0.11.
25. See, for example: NS Emergency, supra note 15, s 23.
26. See, for example: ON Emergency, supra note 15, s 7.0.11.
27. AB Health Act, supra note 16, s 73; BC Public Health, supra note 17, s 108; The Public Health Act, CCSM c P210, s 90 [MN Public Health]; NL Public Health, supra note 16, s 56; NWT Public Health, supra note 16, s 49; NS Public Health, supra note 17, s 71; Public Health Act, SNu 2016, c 13, s 80 [NU Public Health]; ON Public Health, supra note 18, s 101; PEI Public Health, supra note 16, s 66; QC Public Health, supra note 16, ss 139–140; The Public Health Act, 1994, SS 1994, c P-37.1, s 61; YK Public Health, supra note 16, s 22.
28. NS Public Health, supra note 17, s 71.
29. MN Public Health, supra note 27, s 90.
30. NS Public Health, supra note 17, s 71.
31. [MN Public Health, supra note 27, s 90.
32. BC Public Health, supra note 17, s 108.
33. NU Public Health, supra note 27, s 80.

This post was originally published on dentons.com.

Updated March 29, 2020.