COVID-19: Can they do that? Part IX: Enforcement of Emergency Measures
This update is part of a continuing series. We are providing a brief overview of the current state of federal and provincial emergency legislation, how our governments are using (and could eventually use) their statutory powers to confront COVID-19. We are also canvassing some of the constitutional constraints on government action and police’s limits on carrying out enforcement actions.
Violations of orders issued under provincial public health or emergency legislation can entail significant penalties, including substantial fines for individuals and corporations and incarceration for individuals. However, police may not interfere with individual liberties more than what is reasonably required to fulfill their duties.
In this update, we canvass some of the specific enforcement powers available to the provinces in relation to their public health and emergency orders. Click below to jump to a specific province or territory:
For our past updates, and for up-to-date information on COVID-19 and McCarthy Tétrault’s perspective on the legal issues it presents, please visit our dedicated hub here.
The information in this update is current as of April 7, 2020.
Principles regarding police powers
Most duties of police officers are defined by legislation. Some police duties exist at common law. Police may interfere with individual liberty where doing so is “reasonably necessary for the fulfilment” of one of their statutory or common law duties (R. v. Fleming, 2019 SCC 45, at para. 47; see also R. v. Waterfield,  3 All E.R. 659). This principle is known as the “ancillary powers doctrine”.
For a police action to constitute a lawful exercise of an ancillary power, the police action must: (1) “fall within the general scope of a statutory or common law police duty”; and (2) “involve a justifiable exercise of police powers associated with that duty” (Fleming, supra, at para. 46).
Whether police action is justifiable depends on its necessity, the reasonableness of the interference with an individual’s liberty, and the importance of the public purpose served by the interference (see Dedman v. The Queen,  2 S.C.R. 2, at p. 35). For example, the ancillary powers doctrine is what gives police their authority to undertake the following acts:
stop vehicles and ask for an individual’s licence and registration, because the infringement on individual liberty is relatively minor and highway safety is of significant public importance (see Dedman, supra);
enter a home in response to a 9-1-1 call which was dropped before an emergency, in light of the importance of protecting human life and safety (see v. Godoy,  1 S.C.R. 311); and
conduct searches on arrest, where the police have reasonable suspicion that the search may reveal a threat to the safety of the police or the public (see Cloutier v. Langlois,  1 S.C.R. 158).
Conversely, the ancillary powers doctrine does not authorize police to arrest someone who is acting lawfully in order to prevent an anticipated breach of the peace (see Fleming, supra).
In all cases, police authority is limited to actions that are reasonably necessary to fulfill the duties prescribed by provincial, territorial, or federal legislation (including orders made under their respective emergency and public health acts) or falling within the general scope of common law police duties to preserve the peace, prevent crime, and protect life and property.
Given the paramount importance of protecting human health, life, and safety during the COVID-19 pandemic, and the breadth of provincial and territorial public health and emergency powers now in use across the country, it is likely that police have authority to take significant enforcement actions ranging from dispersing gatherings to the right of arrest.
However, when carrying out enforcement actions, police cannot interfere with individual liberty more than is “reasonably required” (Fleming, supra). For example, if a police officer can ensure that public health is protected by breaking up a gathering in excess of provincial or territorial requirements, then the police officer is not reasonably required to arrest persons attending that gathering. What is reasonably required is a question of fact and will depend on the specific legislative or common law duty, the particular factual circumstances, and the police action taken in each case.
Furthermore, the standard of justification for the use of ancillary powers is particularly stringent and the state bears a heavy burden if they are to establish that the power is “reasonably required”. Indeed, it will be more difficult for the state to justify invasive police powers that are preventative in nature than those exercised in responding to a past or ongoing crime (see Fleming, supra).
Enforcement of Emergency COVID-19 Measures
Across Canada, provincial and territorial governments have enacted emergency measures in order to combat the spread of COVID-19. Depending on the statutory powers used to implement these emergency measures, provincial and territorial governments have various enforcement powers available to them. In this section, we provide an overview of the enforcement powers available to each province and territory to enforce emergency measures enacted in response to COVID-19.
The Government of Alberta has implemented new enforcement measures for public health orders under the Public Health Act, RSA 2000 C. P-37 (the “ABPHA”), including increased penalties for contravention and enhanced police and community peace officer authority to issue fines, carry out investigations, and enforce orders issued by medical officers. For example:
community peace officers and police officers can issue court summons and tickets of up to $1,000 for each violation of a public health order;
police officers can assist medical officers in the investigation of violations of the ABPHA and public health orders and in enforcing orders made by medical officers;
penalties for contravention of public health orders are increased and may range from $100 to $5,000 for each day or part of a day the contravention continues; and
courts may administer increased penalties for breach of the ABPHA of up to $100,000 for a first offence and $500,000 for a subsequent offence or more egregious offence.
Public health orders that are subject to these new enforcement measures include those requiring mandatory self-isolation, restrictions on gatherings of more than 15 persons, and required closures of non-essential businesses. See our previous discussion of Alberta’s emergency powers, here.
Section 73(1) of the ABPHA makes it an offence to contravene the ABPHA, the regulations, or a public health order. Under section 73(4) of the ABPHA, a judge is empowered to impose monetary penalties for offences under the ABPHA and to order a person to comply with the Act, regulations or any public health order.
On April 2, 2020, Bill 10, the Public Health (Emergency Powers) Amendment Act received Royal Assent. The Act amends the ABPHA and the Alberta Peace Officer Act (the “ABPOA”) and gives police and peace officers additional authority during a public health emergency. For example:
police are permitted to accompany a medical officer into a public or private residence in order to investigate suspected violations of the ABPHA or a public health order under the new section 60.1 of the ABPHA;
if an order given by a medical officer is not carried out, police have the authority to enforce the order under the new section 62.1 of the ABPHA;
a person contravening a public health order is liable to pay a penalty of “not less than $100 and not more than $5000 for each day or part of a day during which the contravention continues” under the amended section 73(2) of the ABPHA;
penalties for contravention of the ABPHA and regulations are increased to up to $100,000 for a first offence and $500,000 for a subsequent offence under the amended section 72(2) of the ABPHA. Note that this increase was previously enacted by way of Ministerial Order; that Order has now been rescinded; and
during a public health emergency or provincial state of emergency, the Minister may give peace officers jurisdiction in Alberta over any duties specified by the Minister without first obtaining peace officer consent under the amended section 13 of the
In addition, police and peace officers may now issue court summons and tickets for violations of public health orders and for violations of the ABPHA and regulations. This is because of Order in Council 100/200, issued by the provincial Cabinet on March 25, 2020. The Order in Council amended the Procedures Regulation. It provides that:
violation of the ABPHA is an offence subject to enforcement under the Provincial Offences Procedures Act; and
the specified penalty payable by an individual in respect of a contravention of an order of a medical officer of health under Part 3 of the ABPHA is $1,000.
On March 30, 2020, the Government of Alberta issued a bulletin to Alberta Peace Officers, including those in the Fish and Wildlife Enforcement Branch, Parks Enforcement Branch, and Sheriffs Branch, to begin enforcing the ABPHA and public health orders.
In British Columbia, contraventions of emergency orders under the Emergency Program Act (the “BCEPA”) and the Public Health Act (the “BCPHA”) may result in fines, imprisonment and other administrative penalties. See our previous discussion of British Columbia’s emergency powers, here.
The BCEPA provides that a person who contravenes the Act, or interferes with or obstructs any person in the exercise of any power or performance of any duty under the Act is liable to imprisonment up to one year, or a fine up to $10,000, or both (s. 27). Unlike other provincial equivalents, the BCEPA does not distinguish between individuals and corporations when addressing penalties.
The BCPHA also outlines various offences for failing to comply with orders under the Act. A person who, among other things, fails to provide information, fails to take or provide preventive measures, fails to comply with an order of a health officer, fails to take emergency preventive measures, or fails to make a report in an emergency, commits an offence under the BCPHA (s. 99(1)). A person who commits an offence under s. 99(1) faces a fine not exceeding $25,000, up to six months’ imprisonment, or both (BCPHA, s. 108(1)(a)). The BCPHA further provides that, if a corporation commits an offence, then the employee, officer, director, or agent of the corporation who authorized, permitted, or acquiesced in the offence will be deemed to commit the offence, regardless of whether the corporation is convicted (BCPHA, s. 100(1)).
A person who, among other things, fails to prevent or respond to health hazards, train or equip employees, comply with a requirement or duty, fails to comply with the regulations; knowingly provides false or misleading information to a person exercising a power or performing a duty under the BCPHA; or willfully interferes with, or obstructs a person who is exercising a power or performing a duty under the BCPHA, is liable to a fine of up to $200,000 or imprisonment for up to six months, or both (BCPHA, ss. 90(2) and (4), and s. 108(1)(b)).
The most serious offences under the BCPHA are causing a health hazard or failing to provide a designated quarantine facility (BCPHA, s. 99(3)). These offences are punishable, on conviction, with a fine of up to $3,000,000, imprisonment up to 36 months, or both.
Offenders may also receive administrative penalties under the BCPHA, such as an order to pay compensation (BCPHA, s. 107(1)(c)) or perform community service (BCPHA, s. 107(1)(d)).
Normally, police officers and compliance and enforcement officials (“C&EOs”) such as bylaw enforcement officers and other provincial compliance officers (e.g. liquor and cannabis control and licensing inspectors, gambling enforcement and investigations officers) are not empowered to enforce with respect to public health orders. They can only provide assistance when called upon by a health officer pursuant to section 90 of the BCPHA. Under section 90, a health officer can call upon the assistance of a peace officer in order to enforce an action authorized under the Act, including for the purpose of:
making or enforcing an order or carrying out an inspection (BCPHA, s. 90(1)(a)); and
assisting a person to comply with an order of the health officer (BCPHA, s. 90(1)(b)).
A peace officer called upon to assist with the enforcement of the BCPHA “must take any action that is necessary” to achieve the purposes outlined above, and “may use such force as is reasonably required for that purpose” (BCPHA, s. 90(3)).
On March 23, 2020, the City of Vancouver voted to give City staff the power to enforce orders under its State of Emergency bylaw, including the ability to prosecute breaches of emergency orders and issue tickets. The City also passed revisions to its State of Emergency bylaw allowing individuals who breach the bylaw to be fined up to $1,000, and business up to $50,000.
The British Columbia provincial government is taking an incremental compliance and enforcement approach that is starting with providing information, guidance, and advice, with escalating measured enforcement as needed. On March 26, 2020 and March 31, 2020, Mike Farnworth, British Columbia’s Minister of Public Safety and Solicitor General, made ministerial orders relevant to the enforcement of orders under the BCPHA in response to COVID-19. These orders are, respectively, the Bylaw Enforcement Officer (COVID-19) Order (the “Bylaw Order”) and the Provincial Compliance Officer (COVID-19) Order (the “PCO Order”, and, together with the Bylaw Order, the “B.C.Orders”), both pursuant to the BCEPA. The BC Orders enable C&EOs to provide assistance with compliance and enforcement through monitoring and providing warnings, information, and advice.
Section 3 of the Bylaw Order provides that a bylaw enforcement officer must, “to the greatest extent possible without unduly compromising any other bylaw enforcement objectives . . . provide such assistance as may be required for the purposes of enforcing public health orders”. This includes, without limitation:
monitoring facilities and areas closed to the public by a public health order;
providing warnings, information and advice to businesses and members of the public in respect of public health orders, including warnings to businesses and members of the public who may be acting in contravention of a public health order; and
providing health officers with information in respect of potential contraventions of a public health order.
Under the B.C. Orders, C&EOs are not authorized to detain an individual who contravenes, or is suspected to have contravened a public health order, or issue a fine or penalty under the BCPHA. Further, C&EOs are also not authorized to issue a fine or penalty.
In Manitoba, breaches of orders issued pursuant to the province’s Emergency Measures Act (the “MBEMA”) and its Public Health Act (the “MBPHA”) can lead to significant penalties. See our previous discussion of Manitoba’s emergency powers, here.
Under the MBEMA, where a person commits an offence by failing to comply with an order under the Act, by obstructing the operation of emergency infrastructure or by otherwise contravening the Act, they are liable on summary conviction to imprisonment up to one year or a fine of not more than $10,000, or both (MCEMA, s. 20(2)). Further, the MBEMA empowers peace officers who witness a person committing an offence under the Act to carry out an arrest with a warrant where detainment is necessary to (a) establish the person’s identify; (b) secure or preserve evidence relating to the offence; or (c) prevent the continuation or repetition of the offence or the commission of another offence.
However, to date, the majority of Manitoba’s emergency orders in respect of the COVID-19 pandemic have been issued pursuant to the MBPHA. Contraventions of the MBPHA by individuals can lead to fines of up to $50,000 or, in the case of failing to comply with an emergency health hazard order, of up to $100,000 (MBPHA, s. 90(4)).
Under the MBPHA, peace officers may be directed by court order to assist with taking possession of a place or premises on behalf of the provincial government, using any force that is reasonably necessary (s. 69(2)), or to apprehend a person pursuant to an order for temporary detention (s. 60(3)).
To date, Manitoba has not issued any specific orders relevant to the enforcement of prohibitions or orders issued under the MBEMA or MBPHA, in relation to the province’s efforts in combatting COVID-19. However, the provincial government has suggested that such measures can be expected in the near future in further effort to address the pandemic.
On March 19, 2020, New Brunswick declared a state of emergency under the Emergency Measures Act (the “NBEMA”). For more information, see our previous discussion of New Brunswick’s emergency powers, here.
On March 25, 2020, the Minister of Public Safety issued a renewed and revised mandatory Order to replace the previous Order dated March 19, 2020. Under the renewed and revised mandatory Order and in accordance with the authority granted upon the Ministry under section 12 of the NBEMA, food and beverage serving business are prohibited from allowing on-premises dining; retail sales, public-facing businesses, and recreation operations (with certain exceptions, including grocery stores and pharmacies) are prohibited from admitting patrons; and schools, colleges, universities, and private schools are closed to students; among others. Further, pursuant to the Order, peace officers are authorized to turn visitors away when they attempt to enter New Brunswick at any point of entry (while recognizing that some travel is necessary, such as commercial vehicle drivers delivering goods or travel to facilitate children sharing their time between parents).
Pursuant to the NBEMA, a person who violates or fails to comply with orders made under the NBEMA commits an offence punishable as a category F offence under Part 2 of the Provincial Offences Procedure Act (the “NBPOPA”) (s. 24(1)). Under the NBPOPA, category F offences are subject to fines of no less than $240 and not more than $10,200 (s. 56(6)). Unlike other provincial equivalents, the NBEMA and section 56(6) of the NBPOPA do not distinguish between individuals and corporations when addressing penalties.
Besides the peace officers’ authority to turn away visitors, to date, the New Brunswick provincial government has not issued any other specific orders relevant to the enforcement of prohibitions or restrictions issued under the NBEMA, related to the province’s efforts in combatting COVID-19.
Newfoundland and Labrador
On March 18, 2020, the Minister of Health and Community Services of Newfoundland and Labrador declared a state of public health emergency pursuant to the Public Health Protection and Promotion Act (the “PHPPA”). Subsequently, on April 1, 2020, the Minister issued an extension of the declaration of a public health emergency for a consecutive period of 14 days. See our discussion of Newfoundland and Labrador’s emergency powers, here.
Under the orders issued following the declaration of a state of public health emergency (which has been extended, pursuant to a declaration of public health emergency extension dated April 1, 2020), the provincial government has required all individuals arriving in Newfoundland and Labrador from outside the province to self-isolate for 14 days (except for certain asymptomatic individuals, such as those essential to the movement of goods and people); prohibited gatherings of more than five people; and required the closure of all retail (except those providing essential services, such as food and pharmaceutical products) and recreational businesses and facilities and private health care clinics; among others.
Under the PHPPA, a person who contravenes an order is guilty of an offence and liable on summary conviction for fines and imprisonment. An individual found in breach of an order will face a fine between $500 to $5,000 (depending on whether it was a first or subsequent offence), up to six months of imprisonment, or both a fine and imprisonment (s. 56(1)). In the case of a corporation, the corporation found in breach of an order will face fines between $5,000 to $100,000 (depending on whether it was a first or subsequent offence) (s. 56(1)). Further, each contravention and continuing contraventions constitute new and separate offences (s. 56).
The current state of public health emergency differs from a potential state of emergency under Newfoundland and Labrador’s Emergency Services Act (the “NLESA”). If such a declaration is later made under the NLESA then, pursuant to section 31 of the PHPPA, the state of emergency declared under the NLESA will prevail over the state of public health emergency declared under the PHPPA.
To date, the Newfoundland and Labrador provincial government has not issued any specific orders relevant to the enforcement of prohibitions or restrictions issued under the PHPPA, related to the province’s efforts in combatting COVID-19.
On March 27, 2020, the Northwest Territories declared a state of emergency in response to the COVID-19 pandemic under the Emergency Management Act (the “NWTEMA”). The Northwest Territories had previously declared a public heath emergency on March 18, 2020, pursuant to s. 32 of the Public Heath Act (the “NWTPHA”). See our discussion of the Northwest Territories’ emergency powers, here.
Under the NWTEMA, a person commits an offence if the person contravenes the Act, the regulations or any order made under the Act, or interferes with or obstructs any person in the exercise of any power conferred or the performance of any duty imposed by the Act, the regulations or any order made under this Act (NWTEMA, s. 25(1)). A person who commits an offence is liable on summary conviction to imprisonment up to one year or a fine of not more than $5,000 in the case of an individual and $10,000 in the case of a corporation (NWTEMA, s. 25(2)).
Under the NWTPHA, a person who contravenes or fails to comply with the Act, the regulations or any order made under the Act or regulations is guilty of an offence and is liable on summary conviction to a fine up to $10,000 or imprisonment up to six months, and a further fine of up to $1,000 for each day the offence continues in the case of an individual and to a fine up to $50,000 and a further fine up to $2,500 for each day the offence continues in the case of a corporation (NWTPHA, s. 49(1)).
On March 21, 2020, the Northwest Territories’ Chief Public Health Officer prohibited all travel into the Northwest Territories with limited exceptions, pursuant to s. 33 of the NWTPHA. Public Health Officials may enforce orders as peace officers and may seek the assistance of any peace officers, such as police, to actively enforce orders (NWTPHA, s. 9).
In Nova Scotia, offences under the Emergency Management Act (the “NSEMA”) and breach of orders issued under the Health Protection Act (the “NSHPA”) can lead to significant penalties. See our previous discussion of Nova Scotia’s emergency powers, here.
Following the declaration of a state of emergency on March 22, 2020, the Nova Scotia Minister of Municipal Affairs and Housing subsequently issued directions. Pursuant to the direction dated March 27, 2020, the provincial government has restricted entry into the province and closed all provincial and municipal parks, beaches, and tourist attractions. The province has stated that a failure to comply with such prohibitions and closures could result in a summary conviction with a fine between $500 to $10,000 for individuals and up to $100,000 for a corporation, per incident (NSEMA, s. 23).
Further, an order has also been issued by the Nova Scotia Medical Officer of Health under to section 32 of the NSPHA. Under the NSPHA, if individuals and businesses do not practice social distancing and self-isolation, they could face fines of $1,000 for individuals and $7,500 for businesses. Multiple fines can be given for each day an individual or business fails to comply and, further, individuals and business may be subject to greater fines for second or subsequent offences (NSPHA, s. 71).
Police are authorized to enforce orders under the NSPHA and offences under the NSEMA. Where an order has been issued under section 32 of the NSPHA, the medical officer may “take whatever action the medical officer considers necessary, including providing authority for such persons, materials and equipment to enter upon any premises and to use such force as the medical officer considers necessary to carry out the terms of the order” (NSPHA, s. 37(1)).
On March 30, 2020, Mark Furey, the Minister of Justice for Nova Scotia, issued a directive that escalated the role of police enforcement from public education to enforcement. In an effort to ensure compliance with the orders issued following the declaration of the state of emergency, in respect of the NSEMA and NSHPHA, police enforcement is to focus on laying charges against offenders. These actions include the issuance of summary offence tickets, parking tickets, or towage of vehicles found to be owned or operated by a person contravening the directives.
Under the NUPHA, any person who contravenes or fails to comply with the Act, the regulations or any order made under the Act is guilty of an offence and is liable on summary conviction to a fine up to $50,000, to imprisonment up to one year, or to both a fine and imprisonment for individuals and a fine up to $500,000 for corporations (NUPHA, s. 80(2)). Further, the NUPHA empowers environmental health officers to (a) enter and inspect any place, without a warrant; (b) search any place or thing for the purpose of obtaining evidence in relation to an offence under the Act; (c) stop and search a vehicle; and (d) seize, detain and carry away a thing that the officer believes is a risk to public health or is evidence (NUPHA, ss. 69 to 74).
To date, the Nunavut territorial government has not issued any specific orders relevant to the enforcement of prohibitions or restrictions related to the territory’s efforts in combatting COVID-19.
On March 17, 2020, the Government of Ontario declared a state of emergency throughout the province in response to the COVID-19 pandemic and activated its powers under the Emergency Management and Civil Protection Act (the “EMCPA”). Emergency orders in place to date in Ontario include orders relating to the closure of non-essential businesses, public events, social gatherings, and price gouging. See our previous discussion of Ontario’s emergency powers, here. See also our tracker, listing emergency measures implemented in the province to date.
Under section 7.0.11(1) of the EMCPA, persons who fail to comply with an emergency order, or who interfere with or obstruct any person in the exercise of a power or the performance of a duty conferred by an order is guilty of an offence and liable on conviction of a fine up to $100,000 and imprisonment up to one year. Where an individual is a director or officer of a corporation, they may be subject to a fine up to $500,000 and for a term of imprisonment of up to one year. Finally, where a corporation commits an offence under the Act, it may be subject to a fine of up to $10,000,000.
On March 18, 2020, by order of Chief Justice Maisonneuve, additional fines were established by way of Schedule 4.0.1 to the EMCPA and pursuant to section 7.0.11(1)(a) of the Act. These include set fines in respect of the following offences under the EMCPA:
fail to comply with an order made during a declared emergency: $750;
obstruct any person exercising a power in accordance with an order made during a declared emergency: $1,000; and
obstruct any person performing a duty in accordance with an order made during a declared emergency: $1,000.
On March 28, 2020, Ontario’s provincial government issued a series of prohibitive orders including in respect of gatherings of more than five people and price gouging on “necessary” goods (including personal protective equipment, non-prescription medication and personal hygiene products). Invoking the penalties under the EMCPA, the province stated that where individuals breach these restrictions, they will face a maximum penalty of $100,000 and a year in jail, while corporate representatives and corporations could face maximum penalties of $500,000 and $10,000,000, respectively.
On March 31, 2020, the province granted provincial offences officers additional, temporary powers to obtain identifying information pursuant to section 7.0.2(4)(13) and (14) of the EMCPA. This move by the province operates to enhance officers’ abilities to enforce emergency orders during the state of emergency. Specifically, the provincial government ordered that individuals charged under the EMCPA be required to identify themselves where requested by a provincial offences officer (which, per section 1(1) of the Provincial Offences Act, includes police officers, First Nation constables, special constables and municipal by-law enforcement officers). Such officers may require an individual to provide the officer with the individual’s correct name, date of birth and address. In response, individuals are to promptly comply.
In the event that an individual fails to correctly identify him- or herself to the authorities, he or she could face a fine of $750 for failure to comply with an order made under the EMCPA or $1,000 for obstructing any person in exercising a power if a provincial offences officer issues a ticket. These fines are in addition to the fines provided for at section 7.0.11 of the EMCPA, described above. The temporary powers granted to officers will remain in effect for the duration of the state of emergency in Ontario, subject to section 7.0.8 of the EMCPA and any further extension.
Meanwhile, Ontario municipalities under local states of emergencies have also begun to take steps regarding the enforcement of municipal emergency orders. On April 1, 2020, the Medical Officer for the City of Toronto issued a Class Order pursuant to section 22(5.0.1) of the Health Protection and Promotion Act (“HPPA”). The order details requirements for the self-isolation of individuals with COVID-19, experiencing COVID-19 symptoms, or who are in closed contact with someone with symptoms. Failure to comply is an offence for which an individual may be liable on conviction to a fine of up to $5,000 for every day on which the offence occurs or continues (HPPA, s. 101(1)). Further, on April 2 and 3, 2020, Mayor John Tory enacted Emergency Orders Nos. 1 and 2, respectively. The orders were made pursuant to ss. 7 and 8 of the City of Toronto Act, 2006 as well as s. 4 of the EMCPA (which addresses municipal states of emergency) and require physical distance between individuals who are not members of the same household, of at least two metres. Per the penalties established by Schedule 4.0.1 of the EMCPA, described above, fines applicable for breach of the new physical distancing requirements begin at $750.
Prince Edward Island
On March 16, 2020, Prince Edward Island’s provincial government declared a state of public health emergency pursuant to section 49 of the Public Health Act (the “PEIPHA”). See our previous discussion of Prince Edward Island’s emergency powers, here.
On March 31, 2020, Dr. Heather Morrison, the Chief Public Health Officer, issued an order requiring certain persons (e.g. persons identified as a close contact of a confirmed or probable case of COVID-19, persons who have travelled outside of Canada on or after March 8, 2020, persons entering the province as of March 21, 2020) to self-isolate. In addition, the order prohibits retail and recreational business and facilities and unregulated health care providers from providing services, gatherings of more than five people, and visits to nursing homes and community care facilities (unless under exceptional circumstances, including end of life), among others.
Under section 66 of the PEIPHA, every person who contravenes an order of the Chief Public Health Officer is guilty of an offence and is liable on summary conviction to a fine of $1,000 or $2,000, for a first or second offence, respectively, or a fine of up to $10,000 and/or imprisonment for up to six months, for the third and each subsequent offence (s. 66(1)). Further, an offence of a continuing nature constitutes a separate offence for each day or part of a day it continues (s. 66(2)).
Prince Edward Island has not yet declared a state of emergency under its Emergency Measures Act (the “PEIEMA”). If it does, the state of emergency declared under the PEIEMA would take precedence over the current state of public health emergency declared under the PEIPHA (PEIPHA, s. 52).
To date, the Prince Edward Island provincial government has not issued any specific orders relevant to the enforcement of prohibitions or restrictions issued under the PEIPHA, related to the province’s efforts in combatting COVID-19.
The Government of Québec declared a “public health emergency” on March 14, 2020. Breaches of orders issued pursuant to the Public Health Act (the “QCPHA”) can lead to significant penalties. See our previous discussion of Quebec’s emergency powers, here.
The QCPHA provides that any person who fails to comply with the Act, an order under the Act, or who impedes or hinders the exercise of any power or performance of any duty by an authorized person under the Act is guilty of an offence and is liable to a fine of:
$1,000 to $6,000 in the case of a first offence (QCPHA, s. 142); and
$2,000 to $12,000 In the case of a second or subsequent offence (QCPHA, s. 139)
Unlike other provincial equivalents, the QCPHA does not distinguish between individuals and corporations when addressing penalties.
The Sûreté du Québec has the mandate to assist the Ministère de la Santé et des services sociaux in the enforcement of the QCPHA, in particular, with the state of health emergency decreed by the Québec government.
Previously, police officers could issue a general offence report, which would be transferred to investigators and Québec’s director of criminal and penal prosecutions (“DPCP”), who could then decide whether or not to issue a fine to offenders. However, following a call on the police by the Québec government to be less tolerant of those who do not respect physical distancing measures, the DPCP decided to allow the Sûreté du Québec and the Service de police de la Ville de Montréal (“SPVM”) to issue fines on the spot to physical distancing violators as of April 3.
In addition to administering fines, persons who are exhibiting symptoms of COVID-19, who are under investigation or have tested positive for COVID-19, or who are living with persons with COVID-19-related vulnerability factors are ordered to self-isolate in order to prevent contagion. The QCPHA allows any person, including peace officers, to “do everything reasonably possible to locate and apprehend a person whom is violating an isolation order” (QCPHA, s. 108). Once apprehended, an individual who has violated a self-isolation order may be taken to a health or social services institution chosen by the public health director.
While the QCPHA provides that a person may not be maintained in isolation for more than 72 hours without a court order, Ministerial Order 2020-15, published on April 4, extends the allowed isolation period to 14 days.
While the Government of Québec has not yet declared a provincial state of emergency, limiting its powers to those provided by the QCPHA, the city of Montreal, at the request of Québec’s Director of Public Health, declared a local state of emergency on the territory of the Montreal agglomeration on March 27, 2020, pursuant to section 42 of the Civil Protection Act (the “QCCPA”). Section 42 of the QCCPA provides that:
A local municipality may declare a state of emergency in all or part of its territory where, in an actual or imminent major disaster situation, immediate action is required to protect human life, health or physical integrity which, in its opinion, it is unable to take within the scope of its normal operating rules or of any applicable emergency preparedness plan.
This measure allows Montreal to give itself "exceptional powers" to deal with the COVID-19 pandemic, including, but not limited to:
controlling access to or enforce special rules on or within the roads on the territory concerned (s. 47(1) QCCPA);
ordering the evacuation or confinement of inhabitants (s. 47(3) QCCPA);
requiring the assistance of any citizen capable of assisting the personnel deployed (s. 47(4) QCCPA); and
making any expenditure or contract it considers necessary (s. 47(6) QCCPA).
Under the powers conferred on the city by the QCPHA, the City of Montreal has mobilized the resources and workforce to fight COVID-19, including the SPVM, to heighten surveillance an enforcement of orders to ensure the wellbeing of its population.
The QCCPA provides that any person who fails to comply with an order under the Act or hinders the exercise of any power under the act is guilty of an offence and liable of a fine of:
- $1,000 to $5,000 for individuals; and
- $3,000 to $15,000 for corporations
in the case of a first offence. In the case of a second or subsequent offence, the fines range from:
- $2,000 to $10,000 for individuals; and
- $6,000 to $30,000 for corporations.
To date, neither the provincial nor the municipal government has issued specific orders relevant to the enforcement of prohibitions or restrictions issued under the QCPHA or the QCCPA, related to their respective efforts in combatting COVID-19. However, on April 2, 2020, Québec’s Premier publicly asked police forces across the province to be “less tolerant” with people who disobey public health orders. It can thus be expected that the number of fines handed out and number of police interventions for those not respecting quarantine orders will increase.
In Saskatchewan, contraventions of orders under the Emergency Planning Act (“SKEPA”) and the Public Health Act, 1994 (“SKPHA”) may result in arrests, fines, and other administrative penalties. See our previous discussion of Saskatchewan’s emergency powers, here.
On March 18, 2020 the Government of Saskatchewan declared a provincial state of emergency under the SKEPA. Pursuant to the broad powers granted under section 18 of the SKEPA, on March 20, 2020 Premier Scott Moe signed a Ministerial Order declaring that:
all persons are required to comply with any orders issued under the SKPHA, including the bans on public gatherings of more than 10 people, mandatory self-isolation, and mandatory closures of non-essential businesses;
all persons are required to comply with any directive or order issued under the SKEPA and the Saskatchewan Public Safety Agency Act; and
the RCMP and all police services are authorized to take any reasonable action, including arrest, to enforce any order made under the SKPHA or under section 18 of the SKEPA.
The SKPHA imposes significant penalties for contraventions of the SKPHA or a regulation, bylaw or order made thereunder. Pursuant to section 61 of the SKPHA, individuals may receive penalties of up to $75,000 for a first offence or $100,000 for a subsequent offence, while corporations may receive penalties of up to $100,000 for a first offence or $500,000 for a subsequent offence. In addition, any officer, director, manager or agent of the corporation who directed, authorized or participated in the contravention can be held personally liable under the SKPHA (s. 62).
The SKEHA imposes penalties of up to $2,000 for individuals and $10,000 individuals for (a) contravention of the SKEHA or any regulations or order made thereunder, and (b) interference with or obstruction of any person performing any duties imposed by the Act, the regulations or any order made pursuant to the SKEHA (including obstruction of RCMP and police in enforcing emergency orders, pursuant to the Premier’s March 20, 2020 Order).
Subsequently, on March 25, 2020 the provincial Cabinet issued Order in Council 128/2020 amending the Summary Offences Procedure Regulations, 1991. The Summary Offences Procedure (Emergency Planning) Amendment Regulations, 2020 provides that:
violations of the SKEPA and SKPHA are offences for which Saskatchewan law enforcement agents, meaning peace and police officers as well as bylaw enforcement officers) can issue tickets and fines;
the ticketable penalty for violations of the SKEPA, regulations or orders made under the SKEPA is $2,000 for individuals and $10,000 for corporations; and
the ticketable penalty for failing to comply with an order under the SKPHA is $2,000 for individuals and $10,000 for corporations.
Saskatchewan law enforcement is also authorized under the Summary Offences Procedure Act, 1990 to require the offender to attend at Court (ss. 13-16).
To date, RCMP in Saskatchewan have charged 11 people with failure to comply with the SKPHA order limiting gatherings to 10 persons or less; these individuals were also charged with a number of other, criminal offences unrelated to Saskatchewan’s emergency enforcement measures.
On March 27, 2020, the Government of Yukon declared a state of emergency in response to the COVID-19 pandemic. The declaration was made by the Premier, pursuant to s. 6 of the Civil Emergency Measures Act (“CEMA”). Yukon had previously declared a public health emergency on March 18, 2020, pursuant to s. 4.3 of the Public Health and Safety Act (the “YPHSA”). See our previous discussion of the Yukon’s emergency powers here.
Under the CEMA, any person who fails to obey any order given pursuant to the Act, the regulations or a civil emergency plan is guilty of an offence and is liable on summary conviction to a fine up to $500 or to imprisonment up to six months, or to both a fine and imprisonment (CEMA, s. 11). The CEMA does not distinguish between individuals and corporations when addressing penalties.
Under the YPHSA, a person who commits an offence is liable on summary conviction to a fine up to $5,000 for each day the offence continues or imprisonment for up to six months, or both a fine and imprisonment (YPHSA, s. 22). Note that the YPHSA does not provide for separate penalties for individuals and corporations.
On April 2, 2020, the Government of Yukon introduced Civil Emergency Measures Health Protection (COVID-19) Orders to ensure that orders given under the CEMA are enforceable. Fines of $500 and jail time may now be issued to individuals that do not comply with orders, such as requirements to self-isolate and prohibitions on consumption at eating and drinking places. A list of the orders can be found here.
To date, the Yukon government has not issued any specific orders relevant to the enforcement of prohibitions or restrictions issued under the YPHSA, related to the territory’s efforts in combatting COVID-19.
This post will be updated as the situation develops across the country. For more information about the foregoing, or to discuss legal issues arising in your organization’s response to COVID-19, please contact Lara Nathans, Trevor Lawson, or one of the authors.