Colleen M. Flood, director of the University of Ottawa’s Centre for Health Law, Policy and Ethics and University Research Chair, and Bryan Thomas, adjunct professor, Faculty of Law at the University of Ottawa, are editors of the forthcoming book, Is Two-Tier Health Care the Future?
As the COVID-19 pandemic evolves, Canadian public-health officials have issued increasingly forceful guidelines. Various provincial medical authorities have advised against non-essential travel and recommended the cancellation of large gatherings. On Monday, Prime Minister Justin Trudeau announced new measures, closing the Canadian border to people who are not Canadian citizens or permanent residents; U.S. citizens are exempted.
Countries grappling with more severe outbreaks have reached for even more forceful measures. In January, China imposed travel restrictions on all of Hubei province (population 60 million) – the largest cordon sanitaire (restriction of movement of people in a certain geographic location) in history. At the time, legal commentators offered reassurances that such draconian measures would be inconceivable in Western democracies. That was before the whole of Italy was put on lockdown.
Is it really inconceivable that similar steps might be taken in Canada?
On a plain reading of relevant legislation, Canadian governments – both provincial and federal – appear to have broad emergency powers that could be employed, on a large scale, to limit travel and contain the spread of coronavirus.
Ontario’s Health Protection and Promotion Act, for example, empowers public-health authorities who reasonably fear a communicable-disease outbreak to order the isolation of individuals who are, or may be, carriers. Such orders can be issued to entire classes of people – and these classes can be defined by location.
The scope of such orders would be limited to the jurisdiction of the issuing public-health board and a cross-jurisdictional cordon sanitaire would require either co-ordination by multiple entities or an order by the province’s Chief Medical Officer of Health.
The Ontario government could also take the more sweeping step of bypassing public-health authorities and invoking the Emergency Management and Civil Protection Act. This legislation empowers government, in the face of an emergency, to regulate or prohibit travel to, from or within a specified area.
At the federal level, we have the Quarantine Act. Early in February, it was invoked to isolate Canadians returning from Wuhan – detaining them at a military base for 14 days, as the disease’s incubation period ran its course. However, this legislation does not provide the federal government with all-purpose quarantine powers.
The federal act is designed primarily for controlling disease at the national border. Although it could be interpreted as providing authority for imposing quarantine measures within Canada, it would be a stretch to interpret this as providing authority for imposing a cordon sanitaire. In this way, the legislation respects provincial jurisdiction over local health matters. It does, however, provide broad powers to screen returning travellers and to direct them to take all “reasonable measures” (including self-quarantine for 14 days) with fines of up to $20,000 or imprisonment for up to six months.
The federal government could take an even more forceful approach.
The Emergencies Act triggers a range of powers – including the power to regulate or prohibit travel to and from specified areas. Consultation with the affected provinces is required and use of these powers must receive confirmation by Parliament within days.
Could such forceful public-health interventions withstand a Charter challenge?
Section 7 guarantees a right to life, liberty and security of the person, which can only be limited in accordance with principles of fundamental justice. Section 6 guarantees mobility between provinces. In reviewing the constitutionality of a cordon sanitaire, courts would look at the urgency of the situation and assess whether less draconian measures are available.
Legalities aside, there are serious ethical and pragmatic concerns surrounding the use of these public-health measures. China’s mass restriction of movement in Wuhan relied upon authoritarian police powers and electronic surveillance of a sort that is anathema to Canadian values.
There is also a danger that draconian measures would backfire by causing a breakdown in public trust, hindering monitoring efforts and driving the disease underground.
Canadian governments, without doubt, have the power to flex the kind of responses we have seen in other countries including cordons sanitaires. But the measures being taken now, including shutting schools, moving to online learning and avoiding non-essential travel, significantly increase Canada’s chances of not seeing galloping rates of infection that have happened elsewhere.
In our view, the federal government should reconsider the wisdom of exempting U.S. citizens from the new travel ban, given the rates of infection there. Because of measures being taken now, flexing emergency lockdown powers will (we hope) not be needed.
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