What’s up with all these Emergency Declarations and how do they affect me?
Update June 12 The state of emergency was extended to June 23, 2020.
Update May 14- The state of emergency was extended to May 26. The province used its extraordinary powers to clear campers at Oppenheimer park in Vancouver and Topaz park in Victoria. The Victoria removal was delayed.
Update April 29- The Premier announced the State of Emergency for BC has been extended for another 14 days.
Update April 19- The Minister of Public Safety authorised fines of up to $2000 for price gouging or reselling personal protective equipment under the provincial state of emergency- which give the government power to regulate the supply chain. Consumer Protection BC will oversee enforcement. Provincial staff, municipal bylaw officers, liquor and cannabis inspectors, conservation officers and park rangers can enforce the order. Limits on the purchase of items will also be enforced. 5000 warnings for failing to social distance were issued. Lodging opperators who defy government requests to provide space for self-isolating or to support essential workers may also be ticketed.
Update April 1- B.C.’s provincial state of emergency has been extended until April 14. Update April 15 State of Emergency extended to April 28.
Many Canadian jurisdictions are under declarations of emergency because of COVID-19. Because the Constitution Act 1867 (The British North America Act) divides certain governmental powers between the federal government and the provinces, (section 91 and 92) each different level of government has legislation enabling emergency declarations. Municipal governments also have this power.
Federal Powers:
The federal government has powers in the Quarantine Act (effective against travellers) and the Emergencies Act (effective domestically).
The Quarantine Act applies to travellers coming in and out of Canada. It is binding on the provinces. This act is aimed at containment and allows the federal government to control access to the border, to create quarantine zones and to expropriate property to do so. It gives screening officers the power to arrest, detain, examine, disinfest and transfer travellers and their belongings. Peace officers have powers of arrest and can conduct warrantless searches of people and places and can order and health exams and treatment on reasonable suspicion that a person is infected. Under this act the federal Minister of Health can issue oral orders, and fines and imprisonment can be levied against individuals and directors or agents of companies for non-compliance.
The Emergencies Act provides for four types of emergencies: Public Welfare Emergencies; Public Order Emergencies; International Emergencies; and War Emergencies. The federal government has declared a Public Welfare Emergency. This means Cabinet has the power to evacuate, remove, requisition, direct and dispose of person and things. It can force the establishment of hospitals and shelters – for 90 days. People can be directed to render essential services. This declaration allows for the payment of benefits and support to people who are affected – through Employment Insurance, the CERB and as transfers to the provinces. Various enforcement tools are created, including fines and imprisonment.
The Emergencies Act replaces the infamous War Measures Act. There was at that time no Charter. The old legislation was in used when Ukrainians and other Europeans were interned during WWI, and when Japanese Canadians were interned during WWII. Prime Minister Trudeau (senior) invoked the War Measures Act during peace time in 1970 during the October Crisis in Quebec. In response to the kidnapping of two government officials, the Armed Forces were mobilised in Montreal looking for FLQ members who might be involved. 465 people were arrested and held without charge. One of the officials was killed and the other was released.
The wording of the new legislation specifies that the Canadian Charter of Rights and Freedoms still applies during a state of emergency. There is also a requirement for Parliamentary involvement in decision making under this Act. This means the Prime Minister alone cannot make orders, and our rights and freedoms are guaranteed, subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” We can expect the courts to lower the bar on Charter violations during an emergency.
Provincial Powers:
The provincial has emergency powers under two acts- the Public Health Act, and the Emergency Program Act.
The Public Health Act allows the Provincial Health Officer Dr. Bonnie Henry to make orders orally instead of in writing. She can declare quarantine areas, require mandatory reporting, testing, and treatment, and to authorise the inspection of vehicles and places looking for infected people. The Province can conscript peace officers to enforce these orders, but they generally need a warrant to enter places unless it would be unreasonable to get one. Criminal lawyers will be familiar with the exigent circumstances exception to the admission of unconstitutionally obtained evidence, and I expect this operates in a similar.
A provincial declaration of emergency under the Public Health Act is in place. When there is an emergency declaration, the Provincial health officer can do ANYTHING reasonably necessary to control an outbreak, including requirements that people stay somewhere, leave somewhere, avoid contact, be supervised, be evacuated, or go somewhere for testing, treatment or quarantine. Orders can be made orally during an emergency. Warrantless inspections are allowed. The province can require peace officers to enforce Dr. Henry’s orders and can require others to carry out work on behalf of the Provincial health Officer. Fines and imprisonment penalties are created. Many of her powers require application to a Judge (for warrants to search a house, for example) even during an emergency.
A provincial declaration under the Emergency Program Act is also in place. This allows the province to take ANY action, control travel, evacuate persons and livestock, authorize warrantless entries, demolish, construct, and procure items, including the rationing of food, clothing, fuel and medical supplies. In many cases the Minister (of Public Safety Mike Farnworth) acts by making orders in council, which means actions can be taken without the legislature needing to meet. OICs are approved by cabinet. Fines and imprisonment penalties are created. Essential Service levels can be specified.
The Minister can require local governments to prepare emergency plans satisfactory to the Minister. This Act also allows municipal governments to declare local emergencies and to cancel local declarations. Provincial benefits can be paid to people affected by the outbreak.
Municipal Power:
Local government legislation allows municipal governments to declare emergencies as well. In Vancouver, section 173 of the Vancouver Charter confers this power. The Province also has the power under the s.154 to delegate emergency powers to the city. Cities can impose fines and imprisonment for non-compliance with health orders.
This morning the government cancelled emergency declarations made by local government except Vancouver, citing the need for central coordination and clear direction to the public. These local emergency declarations are overridden by the provincial declaration. This follows a similar move in Saskatchewan.
So What?
Emergency declarations remove of loosen many of the procedural requirements, oversight, and Charter requirements which restrict government action. Extraordinary action is possible from all levels of government. including stopping and searching people, their homes and vehicles. People can be arrested, detained, held in quarantine, and prevented from seeing their families. Physical examinations can be conducted, treatment can be ordered, and property and places can be expropriated and used by the government to prevent the spread of COVID-19.
While the Charter still applies, and some of the legislation mentioned above contain non-discrimination provisions, people can expect faster government action with fewer safeguards during the temporary term of the emergency declaration.
What should I do?
These are extraordinary power and because many orders can be made orally, the landscape is changing quickly. We can expect emergency orders to be announced frequently.
If you have access, it is a good idea to read the news every morning, and again before you go out to see if additional orders have been declared that could affect you.
For example, today the BC government ordered a ban on the resale for profit of personal protective equipment. This was not prohibited yesterday. New fines can be applied unexpectedly. A warrant is still generally needed for peace officers to enter your home, unless there is something very unusual happening. People without homes can be made to submit to searches and can be move from one place to another. In the future more stringent ‘lock downs” could be lawfully ordered. This could restrict travel outside your home for all but essential trips (getting food and medicine, and if you are a designated healthcare worker, on your way to and from work). Government has the power to regulate and ration the supply chain.
Dr Henry, the Provincial Health Officer usually gives a COVID-19 update live by video at 3 pm which includes updates on new orders. The Prime Minister, the Premier, the Minister of Housing, and the Minister of Public Safety make frequent announcements as well. Adopt a neighbour who may not have internet access, cable or a radio and let them know what orders you believe are in place.
Try not to panic. Do not hoard, but make sure you have enough of the essential supplies you need. Think of a neighbour who may not be able to go out and see if you can bring them something. Share news but resist the urge to post disaster porn.
If you encounter police or health officials, understand they may have new powers and new orders. Ask for warrants before you let officers into your home, and if it is safe, ask what orders they are enforcing, and what they expect you to do. If something goes wrong take careful notes of what you remember including dates, places, officer’s badge numbers and what people asked you or told you to do.
Above all be kind to each other. Emergencies can be opportunities for oppression and chaos, but they can also be opportunities for us to come together as a community and help each other. Be well.