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The limits of federal emergency law during a pandemic
While there has never been an official national public health emergency in Canada, there has been discussion of whether the COVID-19 pandemic threatens to precipitate one soon.
It’s therefore important to understand the legal framework for public health emergency responses in Canada and identify tools that may be needed to facilitate that response.
One challenge, however, is Canada’s constitutional division of powers, which limits the federal government’s capacity to respond in a public health emergency.
Constitutional federalism involves centralized federal jurisdiction alongside provincial governance, with neither subordinate to the other. Within this structure, the area of health is not specifically assigned to either level of government, which means the federal and provincial governments share public health responsibilities.
Public health emergency law in Canada
Provincial authority in public health comes from its constitutionally defined jurisdiction over the delivery of health care and emergency response.
The federal government’s public health power derives from multiple sources. One is the power to quarantine under the provisions of the Constitution Act (1867/1982).
The Quarantine Act, passed in 2005, is based on this power and allows the federal government to quarantine and isolate individuals at national borders. The federal government also has some jurisdiction in the area of health based on its criminal law power also outlined in the Constitution Act.
The act also allows the federal government to use its power to make laws “for the peace, order and good government of Canada.” That includes acting in national emergency situations.
In the Anti-Inflation Act passed in 1976, national emergencies are defined as situations “imperilling the well-being of the people of Canada as a whole and requiring Parliament’s stern intervention in the interests of the country as a whole.” This doctrine would apply in public health emergencies as well.
Two laws have been created based on the federal government’s emergency powers. First, the 2007 Emergency Management Act provides a framework for helping provinces in an emergency and co-ordinates the response activities of federal institutions with the provinces. The act doesn’t allow for unilateral intervention by the federal government, but provides a structure for voluntary collaboration between different levels of government.
No need for provincial co-operation
The Emergencies Act of 1985 goes further. It gives the federal government authority to declare a national emergency and subsequently act without provincial co-operation.
A national emergency is defined as “an urgent and critical situation of a temporary nature that … cannot be effectively dealt with under any other law of Canada.”
Four types of emergency are outlined: war emergencies, international emergencies, public order emergencies and public welfare emergencies. A public welfare emergency is caused by “a real or imminent … disease in human beings, animals or plants” that presents a risk to life or property, social disruption or a breakdown in the supply of essential goods or services.
To qualify as a national emergency, a situation must “exceed the capacity or the authority … (of provinces) … to deal with.” While it affords extraordinary power to the federal government, it can only be invoked if an emergency extends beyond the control of provinces.
The effectiveness of the Emergencies Act is questionable during a pandemic because federal authorities can intervene only after the spread has exceeded the response capacities of the provinces. But the best and more effective response to a pandemic is stopping the spread of the communicable disease as soon as possible.
Dealing with the lack of federal authority
Two options have been suggested to address the lack of federal authority in a national public health emergency.
Both centre on enhancing the power of the federal government vis-à-vis the provinces. One possibility is that Parliament could amend the Emergencies Act to make it easier for the federal government to declare a public welfare emergency. This could be done by adding a provision authorizing the federal government to invoke such an emergency if something merely risks becoming a national emergency.
Another option is to interpret the federal government’s power to quarantine more broadly. The Constitution authorizes the federal government to use isolation or quarantine measures. However, since first drafted in 1867, other techniques to control diseases have developed, such as vaccination and prophylactic drugs.
For now, the current COVID-19 pandemic has not reached the level of a national public health emergency and so far provinces have mostly responded in co-ordination with the federal government.
But the situation could worsen. And given the structural limitations of Canadian federalism, the use of the Emergencies Act could cause conflict between provincial and federal governments.