COVID-19: Can they do that? Part VI: The Quarantine Act and the Aeronautics Act

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, and what the effects of their efforts on Canadian businesses might be. We are also canvassing some of the constitutional constraints on government action.

In this update, we turn our attention to two important pieces of the federal government’s emergency legislative toolkit: the Quarantine Act and the Aeronautics Act.

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.

What you need to know

  • On March 18, 2020, the Government of Canada announced the following restrictions on travellers entering Canada, pursuant to its powers under the Quarantine Act and the Aeronautics Act:
    • Canada will ban foreign nationals from all countries except the United States from entering Canada. Air crews, travellers in transit to a third country, Canadian permanent residents, diplomats, and immediate family members of Canadian citizens and permanent residents are also exempted.
    • Any person boarding an air carrier to travel to Canada must undergo a health check and will not be permitted to board if they are exhibiting symptoms of COVID-19.
    • Canada will redirect arrivals of international passenger flights to one of four airports: Vancouver International Airport, Calgary International Airport, Toronto-Pearson International Airport, and Montréal–Pierre Elliott Trudeau International Airport. Domestic flights and flights from the United States, “sun destinations” (e.g. Mexico and the Caribbean), and St. Pierre-et-Miquelon are exempt from this order.
    • Travellers are banned from crossing the Canada-U.S. border for recreational or tourism purposes. Canadians who cross the border to do “essential work” are exempted. The ban will not impact supply chains, including trucking, across the border.
  • On March 25, 2020, Canada ordered all travellers returning to Canada to self-isolate for a period of 14 days, subject to certain exceptions. Those who are unable to self-isolate safely or effectively will be transported to a government quarantine facility.
  • At the time of writing, no restrictions are in place in relation to travel within Canada. However, Prime Minister Trudeau indicated in a press conference on March 18, 2020, that travel restrictions within Canada may be introduced in the future “as they become necessary”. The federal government has the power to restrict domestic air travel under the Aeronautics Act. To restrict all domestic travel, the federal government will need to invoke its emergency powers under the Emergencies Act.

The Quarantine Act

The Quarantine Act gives the federal health minister the power to screen travellers entering and exiting Canada who may have a communicable disease, set-up designated quarantine zones, and fine and jail travellers who refuse to comply with the instructions of screening or quarantine officers under the Act. The government has emergency powers under the Quarantine Act, which enable it to prohibit any class of persons from entering Canada, prohibit importation of goods into Canada, and generally enable the government to issue interim orders creating regulations under the Act which have immediate effect.

The Minister of Health has the power, under the Act, to establish quarantine facilities and quarantine stations, used for the administration and enforcement of the Act, at any place in Canada (ss. 6(1) and 7). The Minister can also require any person in charge of a place to provide that place to the Minister upon request for temporary use as a quarantine facility, if necessary to protect public health (s. 8(1)).

Under the Act, arriving and departing travellers are required to immediately present themselves to a screening officer or quarantine officer at the nearest entry or departure point (ss. 12 and 13). Travellers must answer any relevant questions asked by a screening or quarantine officer and provide the officer with any information or record in their possession that the officer may reasonably require in performance of their duties under the Act (s. 15(1)). If a traveller has reasonable grounds to suspect that they have a communicable disease, they must disclose that fact to a screening or quarantine officer (s. 15(2)). Travellers are also required to comply with any reasonable measure ordered by a screening or quarantine officer under the Act (s. 15(3)).

If a traveller refuses to be screened, refuses to provide information, or if a quarantine officer has reasonable grounds to suspect the traveller might have a communicable disease, then the traveller may be required to undergo a health assessment or a medical examination (ss. 19(1) and 22(1)), or may be detained (s. 28(1)).

Operators of “conveyances” (i.e., watercraft, aircraft, trains, motor vehicles, or other means of transportation arriving to or departing from Canada) have a duty to inform a quarantine officer as soon as possible before arrival, or prior to departure, if they suspect that any person, cargo, or other thing could cause the spreading of a communicable disease (ss. 34(2) and (3)). The Minister may order the diversion of a conveyance to any place in Canada specified by the Minister if the Minister has reasonable grounds to believe that doing so is necessary to prevent the introduction and spread of a communicable disease (s. 35).

The federal Cabinet has the power to make regulations under the Act, including, among others:

  • respecting any compensation that is to be paid under the Act (s. 62 (1)(a.1));
  • respecting the location, design, construction, installation, operation, maintenance, marking and modification of a quarantine facility or quarantine station (s. 62(1)(c));
  • respecting the place and manner of embarkation of travellers at a departure point, or disembarkation of travellers at an entry point, and the loading and unloading of goods and cargo onto and from a conveyance (s. 62(1)(h));
  • exempting any person or class of persons from the application of all or any of the provisions of this Act (s. 62(1)(m));
  • respecting anything that may be prescribed under the Act (s. 62(1)(n)); and
  • generally for carrying out the purposes and provisions of the Act (s. 62(1)(o)).

There are numerous penalties for contravention of the Act. The most serious offence under the Act is “caus[ing] a risk of imminent death or serious bodily harm to another person while willfully or recklessly contravening [the] Act or the regulations”. Committing this offence can result in a fine of up to $1,000,000, imprisonment for up to three years, or both (s. 67(1)). The Act also prescribes fines and imprisonment for offences such as failing to comply with a measure ordered by a screening or prevention officer (s. 68); failure of a conveyance to comply with a diversion order (s. 69), failure to provide information to a quarantine officer when compelled (s. 69), and failure of a traveller to present themselves for screening when entering or departing from Canada (s. 70), among others (see ss. 67-72).

Every director and officer of a corporation has a duty to ensure that the corporation complies with the Quarantine Act and the regulations (s. 73(2)). If a corporation commits an offence under the Act, then any officer, director, agent or mandatary of the corporation who authorized, assented to, acquiesced to or participated in the commission of the offence is a party to, and guilty of the offence (s. 73(1)).

Emergency powers under the Quarantine Act

The federal Cabinet has the power to prohibit any class of persons who have been in a foreign country, or specified part of a foreign country, from entering Canada, or may subject their entry into Canada to any condition (s. 58(1)). The Cabinet may make such an order prohibiting entry if the Cabinet is of the opinion that:

  • there is an outbreak of a communicable disease in the foreign country (s. 58(1)(a));
  • the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada (s. 58(1)(b));
  • the entry of [a class of persons who have been in a foreign country] into Canada may introduce or contribute to the spread of the communicable disease in Canada (s. 58(1)(c)); and
  • no reasonable alternatives to prevent the introduction or spread of the disease are available (s. 58(1)(d)).

The Cabinet may specify the period in which an order prohibiting entry is in effect, and the order may be renewed if the same conditions that justified granting the order in the first place continue to apply (s. 58(2)). The Cabinet may also make an order prohibiting imports into Canada for as long as the Cabinet deems necessary to prevent the introduction or spread of a communicable disease (s. 59).

The Aeronautics Act

The Aeronautics Act governs civil aviation in Canada. Under the Aeronautics Act, the Cabinet may make regulations respecting aviation security and aeronautics generally (ss. 4.71 and 4.9). This includes regulations regarding, among other things:

  • the screening of persons entering or inside an aircraft or airport (s. 4.71(2)(c));
  • the conditions under which persons may be transported by aircraft (s. 4.9(i)); and
  • the areas within which aircraft coming from outside Canada may land, and the conditions to which these aircraft are subject (s. 4.9(j)).

The Minister of Transport may make interim orders that contain any provision that may be contained in a regulation made under the Aeronautics Act in order to address a “significant risk, direct or indirect, to aviation safety or the safety of the public” (s. 6.41(1)(a)). Before making an interim order, the Minister or Deputy Minister must consult with any person or organization that the Minister or Deputy Minister considers appropriate in the circumstances (s. 6.41(1.2)).

Emergency Orders under the Quarantine Act and the Aeronautics Act in Response to COVID-19

Mandatory Isolation Orders

On March 24, 2020, the federal Cabinet issued Mandatory Isolation Order Np. 1 pursuant to its powers under the Quarantine Act. Mandatory Isolation Order No. 1 provides that any person who entered Canada before April 14, 2020, must:

  1. isolate themselves without delay in accordance with instructions provided by a screening or quarantine officer and remain isolated for 14 days (s. 2(1)(a)); and
  2. monitor for signs and symptoms of COVID-19 until the expiry of the 14-day period and, if they develop any signs or symptoms, follow the instructions of a screening or quarantine officer (s. 2(1)(b)).

Mandatory Isolation Order No. 1 does not apply to the following persons, among others:

  • a crew member of an air carrier (s. 3(a));
  • a person who enters at the invitation of the Minister of Health to assist in the COVID-19 response (s. 3(c));
  • a person who, in the opinion of the Chief Public Health Officer, will provide an essential service in Canada (s. 3(e));
  • a person whose presence in Canada is in the national interest (s. 3(f)); or
  • a person who enters Canada for the purpose of providing medical care, transporting essential medical equipment, supplies or means of treatment (s 3(h)).

Persons who are unable to self-isolate themselves must: (a) board any means of transportation provided by the Government of Canada to a quarantine facility; (b) remain in isolation at the quarantine facility until the expiry of the 14-day period; and (c) undergo any health assessments that a quarantine officer requires (s. 5(2)).

On April 14, 2020, the federal Cabinet issued Mandatory Isolation Order No. 2, pursuant to its powers under the Quarantine Act, which provides that every person entering Canada on or after April 15, 2020 must answer any relevant questions asked by a screening or quarantine officer, or other public health official, and provide to the officer any information or record in their possession that the officer requires (ss. 2 and 2.1). Upon entry into Canada, every person must wear a non-medical mask or face covering while in transit to isolation or quarantine (s. 2.2).

Asymptomatic persons entering Canada must:

  • quarantine themselves without delay for a period of 14 days (s. 3(1)(a)); and
  • monitor themselves for signs and symptoms of COVID-19 and, if they develop any signs and symptoms, follow the instructions of public health officials (s. 3(1)(b)).

The quarantine requirement for asymptomatic persons entering Canada does not apply to the following persons, among others:

  • a crew member of an air carrier (s. 6(a));
  • a person who enters at the invitation of the Minister of Health to assist in the COVID-19 response (s. 6(c));
  • a person who, in the opinion of the Chief Public Health Officer, will provide an essential service in Canada (s. 6(e));
  • a person whose presence in Canada is in the national interest (s. 6(f));
  • a person who enters Canada for the purpose of providing medical care, transporting essential medical equipment, supplies or means of treatment, as long as they do not directly care for persons 65 years of age or older within the first 14 days of their entry to Canada (s. 6(h));
  • a licensed health care professional with proof of employment in Canada, as long as they do not directly care for persons 65 years of age or older within the first 14 days after their entry to Canada (s. 6(k));
  • a person who enters Canada within the boundaries of an integrated trans-border community and who is a habitual resident of that community, if necessary for carrying out an everyday function within that community (s. 6(m)); or
  • a person whose entry into Canada is necessary to return to their habitual place of residence after carrying out an everyday function that must involve entering the United States (s. 6(n)).

Symptomatic persons entering Canada must:

  • isolate themselves without delay for a period of 14 days in accordance with the instructions of a screening or quarantine officer (s. 9(a)); and
  • during the period of isolation, undergo any health assessment that a quarantine officer requires, monitor their signs and symptoms and report to a screening or quarantine officer if they require additional medical care (s. 9(b)).

The requirement to remain in quarantine (for asymptomatic persons) or isolation (for symptomatic persons) does not apply in the following circumstances:

  • during any medical emergency or essential medical services or treatments that require an asymptomatic person to visit a health care facility (s. 7(1));
  • if a person becomes subject to a provincial or local public health order that is inconsistent with the 14-day quarantine/isolation requirement (ss. 7(2)(a) and 11(2)(a));
  • if the quarantine/isolation requirement is inconsistent with another requirement imposed under the Quarantine Act (ss. 7(2)(b) and 11(2)(b));
  • if the Chief Public Health Officer determines that the person does not pose a risk of significant harm to public health (ss. 7(2)(c)) and 11(2)(c)); or
  • if the person departs Canada, provided they continue to quarantine or isolate themselves until they depart (ss. 8 and 13).

Persons who are unable to safely or effectively quarantine or isolate themselves (as defined in ss. 4(1) or 10(1)) must quarantine or isolate at a quarantine facility chosen by the Chief Public Health Officer (ss. 4(2) and 10(2)).

Mandatory Isolation Order No. 2 is in effect from April 15, 2020 to June 30, 2020.

Prohibition of entry into Canada

On March 20, 2020, the federal Cabinet issued two Orders in Council under the Quarantine Act prohibiting entry into Canada by foreign nationals. Foreign nationals are defined for the purposes of the orders as persons who are not Canadian citizens or permanent residents. The orders were revised on March 26, 2020.

Order in Council 2020-0184 prohibits foreign nationals from entering Canada if they arrive from a foreign country other than the United States (s. 2). The prohibition does not apply to the following persons, among others:

  • an immediate family member of a Canadian citizen or permanent resident (s. 3(1)(a));
  • a person authorized in writing to enter Canada for the purposes of reuniting immediate family members (s. 3(1)(b));
  • a crew member of an air carrier (s. 3(1)(c));
  • a person who seeks to enter Canada at the invitation of the Minister of Health for the purpose of assisting in the COVID-19 response (s. 3(1)(f));
  • a person or any class of persons who, in the opinion of the Chief Public Health Officer:
    • does not pose a risk of significant harm to public health, or
    • will provide an essential service while in Canada (s. 3(1)(j)); or
  • a person whose presence in Canada is in the national interest (s. 3(1)(k)).

Despite these exceptions, a foreign national is prohibited from entering Canada if they exhibit symptoms of COVID-19 (s. 3(2)). The exceptions also do not apply to a foreign national seeking to enter Canada for an “optional or discretionary purpose,” such as tourism, recreation or entertainment (s. 3(3)).

The Order will remain in effect until June 30, 2020.

Order in Council 2020-0185 prohibits a foreign national from entering Canada from the United States in the following circumstances:

  • if they exhibit symptoms of COVID-19 (s. 2(1));
  • if they seek to enter Canada for an “optional or discretionary purpose,” such as tourism, recreation or entertainment (s. 2(3)); or
  • if they have been outside Canada and the United States during the period of 14 days before they seek to enter Canada (s. 4(1)).

The exceptions to the ban on foreign nationals entering Canada from a country other than the United States (summarized above) also apply to foreign nationals entering Canada from the United States.

The Order will remain in effect until April 21, 2020.

Preventing Certain Persons from Boarding Flights to Canada

On March 18, 2020, the Minister of Transport issued an Interim Order under the Aeronautics Act preventing certain persons from boarding flights to Canada (amended on March 20 and 24, and April 6, 2020) (the “Interim Order”). The Interim Order prohibits air carriers from permitting foreign nationals (i.e. persons who are not Canadian citizens or permanent residents) to board an aircraft to Canada from any country other than the United States (s. 3). The prohibition does not apply to:

  • a foreign national who is subject to an exception enumerated in s. 3(1) of Order in Council 2020-0184 (summarized above); or
  • a foreign national in transit through Canada to another country (s. 4).

Air carriers must notify every foreign national flying to Canada from the United States that they may be prohibited from entering Canada, and every foreign national flying to Canada from the United States must confirm that, to the best of their knowledge, they are not prohibited from entering Canada (ss. 5 and 6).

The Interim Order also provides that an air carrier must conduct, at the boarding gate, a health check of every person prior to boarding the aircraft for a flight to Canada, and must deny boarding to any person who does not pass the health check (ss. 9 and 12). Crew members and any person with a medical certificate certifying that their symptoms are not COVID-19-related are exempt from the health check (s. 11).

Conclusion

Pursuant to its emergency powers under the Quarantine Act and the Aeronautics Act, the Canadian government has now taken extraordinary steps to combat the spread of the COVID-19 pandemic in Canada.

The Canadian government has not yet invoked its powers under the Emergencies Act by declaring a “public welfare emergency”, which would enable the government to further regulate or prohibit travel within Canada. As we noted in a previous update, the federal Cabinet may only declare a “public welfare emergency” under the Emergencies Act once it has determined that its powers under all federal law are inadequate to the task of responding to COVID-19. In this way, the measures that the government has imposed under the Quarantine Act and the Aeronautics Act help to explain why the Cabinet has yet to invoke the Emergencies Act.

Still, the federal government has far from exhausted its emergency powers, and more significant restrictions may yet be imposed. If you or your business may be affected by such measures, now is the time to prepare for them.

For more information about the content of this update, 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.

Authors