23 March 2020, 3:20 p.m.
(Disponible en français : Les pouvoirs du gouvernement fédéral en cas d’urgence de santé publique)
Section 91 of the Constitution Act, 1867 sets out areas of jurisdiction exclusive to Parliament under which it may legislate in the event of public health emergencies. Among Parliament’s exclusive powers are those regarding quarantine, criminal law, and military and defence. The Constitution Act, 1867 further confers special powers to Parliament during such events: the opening words of section 91 provide Parliament with the authority to legislate for the “Peace, Order, and good Government of Canada.” Courts have interpreted this residual power as being available in matters of national concern and when emergencies arise. In the emergency context, this power is limited to “an urgent and critical situation adversely affecting all Canadians and being of such proportions as to transcend the authority vested in the Legislatures of the Provinces,” and situations which “can only be effectively dealt with by Parliament.” (Re: Anti-Inflation Act,  2 SCR 373). In an emergency situation, Parliament can have legislative authority over areas of provincial jurisdiction, but only to the extent required by the nature of the crisis. Laws that override the division of powers must also be temporary and necessary to address the emergency.
Courts have held that a situation of epidemic (or pandemic) concerns the nation as a whole and would justify Parliament’s authority to legislate for the peace, order and good government, and that such power could be exercised not only to address an outbreak, but also to prevent one from occurring or from happening again. (Toronto Electric Commissioners v. Snider,  AC 396; and Ontario (A.G.) v. Canada Temperance Federation,  AC 193).
Notwithstanding the above, it should be noted that all legislation and policies in Canada must conform to the Canadian Charter of Rights and Freedoms. While the Charter protects the rights of Canadians, section 1 allows for “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
It is important to note that all levels of government work collaboratively during public health emergencies and have legislative authorities to act during such events.
Federal Legislation Related to Public Health and Public Health Emergencies
The federal government has enacted legislation, described below, that enables it to respond during public health emergencies.
The legislation was enacted in 2006 following the 2003 outbreak of “severe acute respiratory syndrome” (SARS). It transferred public health matters from the Department of Health to the newly created Public Health Agency of Canada (PHAC) and created the position of Chief Public Health Officer of Canada.
Under the Act, PHAC:
- collaborates with public health organizations, provincial and territorial governments, foreign governments and international organizations;
- provides guidance and guidelines for public health measures;
- is responsible for surveillance activities along with Statistics Canada;
- provides assistance and support to provincial and territorial governments when requested in a public health emergency; and,
- is led by the Minister of Health who may delegate to any PHAC employee any of the Minister’s powers, duties and functions other than making a regulation.
The legislation was first introduced in 1872, but was repealed and replaced with a new version in 2005 following SARS. The Act focusses on preventing the introduction and spread of serious communicable diseases within Canada. It applies to travellers and conveyances entering or exiting Canada at ports of entry to the country.
The Act gives the Minister of Health the authority to:
- designate screening officers, quarantine officers and review officers;
- establish and designate any place in Canada as a quarantine facility; and,
- designate any point in Canada as a point of entry to, or departure from, the country.
Travellers must declare at points of entry if they have or have been exposed to any of the diseases listed in the Act’s schedule. However, new infectious diseases such as COVID-19 can appear at any time and will not be on the schedule immediately, although the Minister may add diseases to the schedule at any time. Therefore, there are several authorities that can help to capture new infectious diseases.
The Act requires screening officers to:
- inform a quarantine officer of a traveller who is suspected of having, or has been in close contact with someone who has, a communicable disease or has refused to comply with any authorized request; and
- isolate any traveller until they have been assessed.
The Act gives quarantine officers the power to:
- require any traveller to undergo a health assessment, or a more comprehensive examination, if they are suspected of being infected;
- require a traveller to be assessed if they have refused to comply with a screening officer;
- order a traveller to report to a local public health authority if they have no symptoms but may have been in contact with an infected person and must notify the public health authority of such an order;
- order a traveller to comply with treatment or any other measure for preventing the introduction and spread of the communicable disease, when it is reasonable to believe that the traveller has, or may have been in contact with someone with, a communicable disease;
- detain a traveller who has been ordered to undergo a medical examination, who may pose a public health threat and for non-compliance, and transfer that traveller to a public health authority; and
- request a court order to compel a traveller to comply with any measure authorized by the Act.
Finally, screening and quarantine officers are authorized to exercise any power or duty at any entry point outside Canada as long as it does not conflict with the laws of that country.
The Quarantine Act is always in force at ports of entry in terms of requiring travellers to self-identify if they feel ill. However, disease outbreaks such as COVID-19 require some of the rarely used authorities listed above to be implemented. For example, during the COVID-19 outbreak, the Minister’s authority to designate any place in Canada as a quarantine facility was invoked when repatriated Canadians, who had been in the main COVID-19 affected area of China, were held at a military base for 14 days in Trenton, Ontario, and again when a second quarantine facility was designated in Cornwall, Ontario to house repatriated Canadians from a COVID-19 affected cruise ship held in Japan.
The legislation replaced the War Measures Act repealed in 1988 and has not been invoked to date. It was designed to be used rarely and on a temporary basis, where no other law in Canada exists to react to such an emergency. It is invoked only by the Governor in Council (the Prime Minister and Cabinet) and subject to the supervision of Parliament. Under the Act, a national emergency is defined as a critical, temporary situation that either gravely endangers the health of Canadians and that cannot be rectified by provincial governments, or that seriously threatens Canadian sovereignty, security or territorial integrity.
Part I of the Emergencies Act addresses public welfare emergencies which it defines, in part, as “an emergency that is caused by a real or imminent … disease in human beings.” A public welfare emergency can be declared only by the Governor in Council and only once it has consulted with affected provincial governments.
Once a public welfare emergency has been declared, the federal government may, under section 8, issue orders or make regulations on a number of matters necessary to deal with the emergency, that:
- restrict or prohibit travel;
- evacuate persons from affected areas and make arrangements for their care;
- authorize or direct persons to provide essential services;
- regulate the distribution of essential goods, services and resources;
- make emergency payments;
- establish emergency shelters and hospitals; and
- impose fines and terms of imprisonment for contravening any order or regulation.
The legislation focusses on federal, provincial and territorial coordination in the division of responsibilities when responding to a national emergency. It gives leadership responsibility to the Minister of Public Safety and Emergency Preparedness for emergency management in Canada by coordinating with other government institutions and cooperating with the provinces and other entities on emergency management activities. The Act requires all federal Cabinet ministers to be responsible for identifying the risks within their area of responsibility and to prepare, maintain and implement emergency management plans in this respect. Provinces must request assistance before the federal government responds to a provincial emergency.
Isabelle Brideau and Laurence Brosseau, The Distribution of Legislative Powers: An Overview, Publication No. 2019-35-E, Library of Parliament, 16 October 2019.
Martha Butler and Marlisa Tiedemann, The Federal Role in Health and Health Care, Publication No. 2011-91-E, Library of Parliament, 20 September 2013.
Marlisa Tiedemann, Legislative Summary of Bill C-5: Public Health Agency of Canada Act, Publication No. 39-1-LS-523-E, Library of Parliament, 26 April 2006.
Sonya Norris and Marlisa Tiedemann, Legislative Summary of Bill C-12: The Quarantine Act, Publication No. 38-1-LS-484-E, Parliamentary Information and Research Service, Library of Parliament, 21 October 2004.
Authors: Sonya Norris and Isabelle Brideau, Library of Parliament