COVID-19: Quarantine and Government Emergency Powers

Category: Commentary
Posted on by Mercedes Perez

Yesterday, Quebec City police arrested a woman diagnosed with COVID-19 for defying a quarantine order.

What are provincial and federal government powers to enforce a quarantine?  What other powers are available to governments to address public health emergencies such as COVID-19?

Legislation exists at both provincial and federal levels to tackle such issues.

Ontario – States of Emergency

For example, the Government of Ontario declared a state of emergency on March 17, 2020 in response to COVID-19.  Under the Emergency Management and Civil Protection Act the Ontario Government is authorized to make orders to protect the health, safety and welfare of Ontarians during times of declared emergencies “in a manner that is subject to the Canadian Charter of Rights and Freedoms”.

After declaring a state of emergency, the province has broad powers to:

  • Regulate or prohibit travel or movement to, from or within any specified area
  • Evacuate individuals and animals and remove personal property from any specified area
  • Establish facilities for the care, welfare, safety and shelter of individuals, including emergency shelters and hospitals
  • Close any place, whether public or private, including any business, office, school, hospital or other establishment or institution
  • Construct works, restore necessary facilities, and appropriate, use, destroy, remove or dispose of property
  • Collect, transport, store, process, and dispose of any type of waste
  • Authorize facilities, including electrical generating facilities, to operate as necessary to respond to or alleviate the effects of the emergency
  • Use and distribute any necessary goods, services and resources within any part of Ontario, and make available necessary goods, services and resources
  • Procure necessary goods, services and resources
  • Fix prices for necessary goods, services and resources and prohibit charging unconscionable prices in respect of necessary goods, services and resources
  • Authorize, but not require, any person, or any person of a class of persons, to render services of a type that that person, or a person of that class, is reasonably qualified to provide

Failure to comply can lead to fines up to $100,000 and imprisonment of up to one year.  For corporations, fines can extend up to $10,000,000.

The Premier of Ontario can also exercise authority to direct and control the administration, facilities and equipment of municipalities, and exercise municipal powers and duties and direct municipalities to provide assistance.

During an emergency, the Premier is mandated to regularly report to the public.  A state of emergency can last for 14 days following its declaration and can be extended by the Lieutenant Government for an additional period of 14 days.  Thereafter, Parliament may extend the state of emergency for additional periods of not more than 28 days.  Government also has the power to suspend the operation of existing laws.

Ontario – Infectious Diseases

Ontario also has legislation that gives the province extraordinary powers to detain people in the absence of any criminal wrongdoing via the Health Protection and Promotion Act.  The purposes of this Act include preventing the spread of disease in the province and promoting and protecting the health of the people of Ontario. It empowers public health authorities and the government to order the quarantine or isolation of persons suffering from an infectious disease, or who may be carriers.

Pursuant to the Health Protection and Promotion Act, medical officers of health may issue orders where there are reasonable and probable grounds  to believe that a communicable disease exists or that there is an immediate risk of an outbreak of a communicable disease and that it presents a risk to public health. Such orders, known as section 22 orders, may (subject to some due process rights):

  • Require owners or occupiers of a premise to shut it down
  • Require any person that has or may have a communicable disease to remain in isolation from other persons
  • Require the cleaning, disinfecting, or destruction of premises or things
  • Require a person to submit to a medical examination to determine whether he or she is infected with a communicable disease
  • Require a person diagnosed with a communicable disease to undergo treatment and even hospitalization
  • Such orders can be made against individuals or classes of individuals (for example, a group of people living in an apartment building)

If a person refuses to comply with isolation, medical examination and/or treatment orders issued by public health authorities, a judge of the Ontario Court of Justice may order the person to comply.  Court orders are enforceable by police and may involve the person’s arrest and detention in hospital, forced examination by a physician, and forced treatment (to which the laws of capacity and consent under the Health Care Consent Act, 1996 do not apply).  Such orders can be made for a maximum time of six months, but can be extended upon further court application.

Government of Canada – Quarantines

At the Federal level, the Quarantine Act was used in February 2020 by the federal government to force Canadians returning from Wuhan, China into isolation (detaining them at a military base for 14 days). It permits the federal government to also prohibit or subject to any condition the entry into Canada of any person who has been in a foreign country if there is an outbreak or a communicable disease in that country and where the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada.

The Quarantine Act also authorizes the federal government to:

  • establish quarantine stations anywhere in Canada (subject to consultation with the affected province)
  • designate entry and departure points within Canada
  • require travelers entering Canada to undergo screening procedures and medical examinations

Refusal by travelers entering Canada to undergo screening procedures and medical examinations can be overruled by court order.  Those screening positive for a communicable disease can be ordered to comply with treatment or any other measure enforceable by police and upon court order.  Such persons can also be detained, depending on the circumstances, with or without court order.  The detention period is for 7 days but can be renewed until the traveler is found not to pose a risk of significant harm to public health.  Failure to comply with self-quarantine and other measures can result in fines of up to $20,000.00 and imprisonment for up to six months.

Government of Canada – National Emergencies

The federal Emergencies Act, formerly the War Measures Act, defines a “national emergency” as an “urgent and critical situation of a temporary nature” that “seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it”.  It also covers circumstances that “seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada”.  A “public welfare emergency” covers emergencies characterized by real or imminent disease in human beings that may result in “danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources”.

Public welfare emergencies are understood to be temporary.  A declaration of a public welfare emergency can last up to 90 days, unless it is revoked or continued by the Governor in Council (after consulting with affected provinces).

Once a public welfare emergency is declared, the Government of Canada is endowed with extraordinary powers not usually available to it, including:

  • the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals
  • the evacuation of persons and the removal of personal property from any specified area
  • the requisition, use or disposition of property
  • the authorization or direction to any person, or any class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide (with reasonable compensation)
  • the regulation of the distribution and availability of essential goods, services and resources
  • the authorization and making of emergency payments
  • the establishment of emergency shelters and hospitals
  • the assessment of damage to any works or undertakings and their repair, replacement or restoration
  • the assessment of damage to the environment and the elimination or alleviation of the damage; and
  • the imposition of fines up to $5000.00 and imprisonment up to 5 years for contravention of any order

Quebec – Contagious Diseases

Other provinces have at their disposal similar emergency public health legislation.  For example, Quebec’s Public Health Act provides the province with power to “take action in cases where the health of the population is threatened.”  A “threat” is defined as “the presence within the population of a biological, chemical or physical agent that may cause an epidemic if it is not controlled”.  Such threats include “contagious diseases or infections that are medically recognized as capable of constituting a serious threat to the health of a population and for which an effective treatment that would put an end to the contagion is available.”

If public health threats are identified, public health authorities may also take “prophylactic measures”, set out in regulation, that must be complied with by any person suffering from the disease or infection as well as by any person having been in contact with that person.  Isolation, for a maximum of 30 days, can form part of the prophylactic measures prescribed in the regulation.

Any health professional who observes that a person is neglecting to comply with the prophylactic measures must notify the public health authorities who may then apply to the Court for an order that the person do so.  The quarantine can end once a physician certifies that the risk no longer exists. Court orders can also be obtained to access and inspect private residences; and to require individuals to submit to a medication examination and/or provide blood samples or samples of any other bodily substances if there are reasonable grounds to believe that the person is infected with a “communicable biological agent”.  Quarantine orders for 72 hours can be ordered by public health authorities, without the need for a court order.  All orders, whether issued by courts or by public health authorities, are enforceable by police.

The Act also permits the Quebec government to declare a public health emergency, as it did on March 14, 2020, the first ever in its history. “Public health emergencies” can be in place for a maximum of 10 days, but can be renewed “as many times as necessary”.  With the consent of the National Assembly, the public health emergency can be declares for up to 30 days.  Such declarations provide the government with authority to:

  • Order compulsory vaccinations enforceable by court order if necessary
  • Order the closing of schools
  • Prohibit entry and access to certain locations; and order evacuations from certain areas
  • Order constructions works such as health facilities