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 any foreign nationals from entering Canada by air travel from a foreign country, except those who have been only in the United States or Canada during the 14 day period before arrival in 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 20 and 22, 2020, the Government of Canada clarified these restrictions through two additional sets of Orders, one prohibiting entry into Canada from the United States, and the other prohibiting entry into Canada from any country other than the United States, respectively. Both Orders have been updated several times and contain exceptions to certain categories of people, summarized below. The prohibition on entry into Canada from the United States remains in place until July 21, 2020. The prohibition on entry into Canada from any country other than the United States remains in effect until July 31, 2020.

  • On March 25, 2020, Canada ordered all persons entering Canada by air, sea or land 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 to self-isolate for 14 days. On April 14, 2020, Canada issued Mandatory Isolation Order No. 2, effective for travellers arriving on or after April 15, 2020, which continued and expanded upon the original mandatory isolation order. This order was amended on June 19, 2020 and remained in effect until June 30, 2020. On June 29, 2020, Canada issued Mandatory Isolation Order No. 3, which remains in effect until August 31, 2020.

  • As of March 30, 2020, all travellers within Canada will be subject to a health check prior to boarding a flight. Travellers exhibiting symptoms of COVID-19 will not be allowed to board any flight until 14 days have passed or they present a medical certificate confirming the symptoms are unrelated to COVID-19. As of April 20, 2020, all air travellers, with some exceptions, are required to wear a non-medical mask or face covering while travelling.

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)).

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

  • 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)).

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

Mandatory Isolation Orders under the Quarantine Act

On June 29, 2020, the federal Cabinet issued Mandatory Isolation Order No. 3 pursuant to its powers under the Quarantine Act. Mandatory Isolation Order No. 3, effective June 30, 2020, is the latest iteration of two previous orders: Mandatory Isolation Order No. 1 and Mandatory Isolation Order No. 2. Mandatory Isolation Order No. 3 will remain in effect until August 31, 2020.

Mandatory Isolation Order No. 3 provides that 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 and is in compliance with any conditions imposed on them by the relevant Minister (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 a person to visit or be taken into a health care facility (ss. 7(1) and 12(1));

  • if a person becomes subject to a provincial or local public health order that is inconsistent with the 14-day quarantine/isolation requirement (s.12 (2)((a)));

  • if the quarantine/isolation requirement is inconsistent with another requirement imposed under the Quarantine Act (s. 12(2)(b));

  • if the Chief Public Health Officer determines that the person does not pose a risk of significant harm to public health (s. 12(2)(c)); or

  • if the person departs Canada, provided they continue to quarantine or isolate themselves until they depart (ss. 8 and 13).

Under Mandatory Isolation Order No. 3, any person (subject to some exceptions) who entered Canada after June 30, 2020 must:

  • answer any relevant questions and provide any information or record reasonably requested by a screening officer, quarantine officer or public health officer during the 14-day period upon entry to Canada and any extension (s. 2(a) and (b));

  • while entering Canada or in transit to a place of isolation, a health care facility or place of departure from Canada, isolate themselves or wear a non-medical mask or face covering that a screening officer or quarantine officer considers suitable to minimize the risk of COVID-19 (s. 2.2(1)(a) and (b));

  • persons who are unable to isolate in a suitable place for the 14-day period (as defined in ss. 4(1)(a)(b) and (c)), 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. 4(2));

  • with the authorization of a quarantine officer, may leave a quarantine facility before the 14-day period to quarantine in a suitable place (s. 4(3)); and

  • 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. 5 and 11). The 14-day quarantine period begins anew if the person develops, or is exposed to another person who exhibits, signs and symptoms of COVID-19 (ss. 3(2) and 4(4).

Overview of the prohibitions of entry into Canada under the Quarantine Act

On March 20, 2020, the federal Cabinet issued two Orders in Council under the Quarantine Act prohibiting entry into Canada by foreign nationals. One set of Orders concerns entry into Canada from the United States, while the other concerns any country other than the United States. Foreign nationals are defined for the purposes of the orders as persons who are not Canadian citizens or permanent residents. The orders were first revised on March 26, 2020 and last revised in June 2020.

Prohibition of entry into Canada from any country other than the United States

On June 29, 2020, the federal Cabinet issued Order in Council 2020-0523, effective until July 31, 2020. This Order is the latest of three previous Orders prohibiting foreign nationals from entering into Canada from any country other than the United States. 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 (s. 3(1)(i)), or

    • will provide an essential service while in Canada (s. 3(1)(j));

  • a person whose presence in Canada is in the national interest (s. 3(1)(k)); or

  • a person who is transiting to another country and remains in a sterile transit area (s. 3(1)(w)).

Despite these exceptions, a foreign national is prohibited from entering Canada if they exhibit symptoms of COVID-19 (s. 3(2)). These exceptions 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)), unless they are an immediate family member of a Canadian citizen or a permanent resident (s. 3(4)).

This Order does not apply to a person registered as an Indian under the Indian Act; a protected person as defined within subsection 95(2) of the Immigration and Refugee Protection Act; or a person proceeding directly to another place outside Canada (s. 4).

Prohibition of entry into Canada from the United States

On June 19, 2020, the federal Cabinet issued Order in Council 2020-0469, replacing five previous orders to the same effect. Order in Council 2020-0469 is effective until July 21, 2020 and 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)), unless they are seeking entry to make a claim for refugee protection (subject to certain exceptions) (s. 2(2));

  • if they seek to enter Canada for an “optional or discretionary purpose,” such as tourism, recreation or entertainment (s. 3(1)), unless they are an immediate family member of Canadian citizen or permanent resident (s. 3(2)); or

  • if, based on the purpose of entry and the length of their stay, they are unable to meet the quarantine requirement under Mandatory Isolation Order No. 3, unless they are seeking entry to make a claim for refugee protection (subject to certain exceptions) (s. 4(2)).

This Order does not apply to a person registered as an Indian under the Indian Act; a person who the Chief Public Health Officer determines does not pose a risk of significant harm to public health; a protected person as defined within subsection 95(2) of the Immigration and Refugee Protection Act; or a person who enters Canadian waters to proceed directly to another place outside Canada (s. 6).

Preventing Certain Persons from Boarding Flights to Canada under the Aeronautics Act

Between March 18, 2020 and July 13, 2020, the Minister of Transport issued several Interim Orders Respecting Certain Requirements for Civil Aviation Due to COVID-19 under the Aeronautics Act (the “Interim Orders”), preventing certain persons from boarding flights to Canada.

The July 13, 2020 Interim Order requires an air carrier or private operator to:

  • notify every person flying within Canada or to Canada from any other country that they may be subject to a measure to prevent the spread of COVID-19 taken by the relevant provincial or territorial government, or federal government (s. 2(1));

  • notify every foreign national flying to Canada that they may be prohibited from entering Canada and refuse boarding to foreign nationals flying to Canada from any country other than the United States unless they are permitted to do so pursuant to Order in Council 2020-0523 (ss. 5 and 6);

  • conduct a health check and ask additional screening questions to every boarding passenger (ss. 8(1) and (2)) and refuse boarding to those who do not pass the health check or screening questions (ss. 9(a) and (c));

  • during the boarding process, observe whether any person boarding the aircraft is exhibiting symptoms of COVID-19 (s. 8(7)) and refuse boarding to those exhibiting symptoms (s. 9(b));

  • conduct a temperature screening of every boarding passenger flying to Canada from any other country (s. 12(1)) and refuse boarding to those with an elevated temperature (s. 14(1));

  • require a person to wear a face mask at all times during the boarding process and flight (s. 22(1)), subject to certain exceptions (ss. 22(2), (3) and (4)), and refuse boarding to those who do not comply (s. 24); and

  • keep a record of a passenger who is not complying with face mask requirements, including their contact information, date and flight number, and inform the Minister as soon as feasible (s. 25).

Passengers who are refused boarding because they do not pass the health check or because they exhibit an elevated temperature are not permitted to board another flight to Canada for a 14-day period unless a medical certificate shows their symptoms are unrelated to COVID-19 (ss. 10 and 15). Certain persons (including infants and people with breathing difficulties unrelated to COVID-19) are exempt from the face mask provisions, and certain exceptions apply to all persons (including when a person is drinking, eating or taking oral medications) (ss. 19 and 22(2), (3) and (4)). Air passengers may be liable to a monetary penalty if they provide a false or misleading confirmation (s. 2(4)). Maximum penalties payable for contraventions are $5,000 for individuals and $25,000 for Corporations.

Conclusion

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

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