COVID-19: Can they do that? Part VII: Québec’s Public Health Act and Civil Protection 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 consider Québec’s Public Health Act and Civil Protection 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 14, 2020, pursuant to the Public Health Act (the “PHA”), the government of Québec promulgated an Order in Council that declared a “public health emergency” throughout Québec in response to the COVID-19 pandemic.
  • Now that the provincial government has declared a public health emergency under the PHA, it may exercise significant powers to protect the population and to mitigate the impact of the pandemic. Among other things, the government can now restrict the movement of people within the province, close schools and other places where groups of people gather, require the disclosure of personal or confidential information, and even force the entire population to be vaccinated.
  • Québec has not yet declared a provincial state of emergency under the province’s Civil Protection Act (the “CPA”). The government’s powers are thus limited to what is provided for by the PHA. 

The Public Health Act

When the National Assembly enacted the PHA in 2001, it was considered to be a turning point in public health policy in Québec. The legislation gives public health authorities coercive powers that they may exercise when they consider that the health of the population is threatened. The province’s powers under the PHA were used, for example, to order a mass vaccination campaign during the H1N1 pandemic in 2009.

On March 14, 2020, pursuant to the PHA, the Government of Québec declared a public health emergency throughout the province in response COVID-19. Specifically, Québec authorities declared a national state of emergency under section 118 of the PHA. Section 118 provides that:

The Government may declare a public health emergency in all or part of the territory of Québec where a serious threat to the health of the population, whether real or imminent, requires the immediate application of certain measures … to protect the health of the population.

Dr. Horacio Arruda, Québec’s director of public health, has used the powers conferred on him by the PHA to proscribe any gathering of more than 250 people and to order the closure of public areas such as schools, gyms, bars, and movie theaters. Dr. Arruda could yet use his powers under the PHA to impose a complete or partial lockdown on Québec residents. This would be a first in the province.

Even without a declaration of a public health emergency, Québec’s public health authorities and the province’s public health director may exercise extensive powers under the PHA. These powers remain available following the declaration of a public health emergency.

Specifically, when a public health director is of the opinion that there exists “a real threat to the health of the population”, section 106 of the PHA grants the director the power to, among other things:

  • “order the closing of premises” (s. 106(1));
  • “order the disinfection, decontamination or cleaning of premises or of certain things and give clear instructions to that effect” (s. 106(3));
  • “order the cessation of an activity or the taking of special security measures if the activity presents a threat for the health of the population” (s. 106(5));
  • “order a person to refrain from being present … in an educational institution, work environment or other place of assembly if the person has not been immunized against a contagious disease an outbreak of which has been detected in that place” (s. 106(6));
  • “order a person to comply with specific directives to prevent contagion or contamination” (s. 106(8)); and
  • order any other measure the public health director considers necessary to prevent a threat to the health of the population from worsening or to decrease the effects of or eliminate such a threat” (s. 106(9), emphasis added).

Once a public health emergency has been declared pursuant to section 118 of the PHA, the provincial government may exercise a wide array of powers to respond to the emergency. Under section 123 of the PHA, the government or the Minister of Health may, without delay and without further formality:

  • “order compulsory vaccination of the entire population or any part of it against … any … contagious disease seriously threatening the health of the population” (s. 123(1));
  • “order the closing of educational institutions or of any other place of assembly” (s. 123(2));
  • “order any person … to communicate or give to the Government or the Minister immediate access to any document or information held, even personal or confidential information or a confidential document” (s. 123(3));
  • “prohibit entry into all or part of the area concerned or allow access to an area only to certain persons and subject to certain conditions, or order … the evacuation of persons from all or any part of the area or their confinement and, if the persons affected have no other resources, provide for their lodging, feeding, clothing and security needs” (s. 123(4));
  • “order the construction of any work, the installation of sanitary facilities or the provision of health and social services” (s. 123(5));
  • “incur such expenses and enter into such contracts as are considered necessary” (s. 123(7)); and
  • “order any other measure necessary to protect the health of the population” (s. 123(8), emphasis added).

The declaration of a public health emergency expires after 10 days, but may be renewed indefinitely thereafter. The Cabinet, acting alone, may extend the declaration by 10 days at a time. With the consent of the National Assembly, however, the Cabinet can extend the declaration by 30 days at a time (s. 119).

The Civil Protection Act

A state of public health emergency differs from a provincial state of emergency (referred to as a “national state of emergency” in the CPA). While other provinces – namely British Columbia, Saskatchewan, Ontario, and New Brunswick – have each declared a provincial state of emergency, Québec has yet to do so. If a provincial state of emergency were to be declared, the Québec government would be able to exercise powers under the CPA that are far more sweeping and wide-ranging than the powers currently available to it under the PHA.

The CPA came into force in 2001. Québec has never declared a provincial emergency under the CPA.

The CPA allows the provincial government to declare a national state of emergency protect human life, health, or physical integrity. Section 88 of the CPA provides that:

The Government may declare a national state of emergency in all or part of the territory of Québec where, in an actual or imminent major disaster situation or other event that interferes with the life of the community to the point of compromising human safety, immediate action is required to protect human life, health or physical integrity which, in the Government’s opinion, cannot be taken within the scope of the normal operating rules of the civil protection authorities or government departments and government bodies concerned or within the scope of Québec’s national civil protection plan.

Once a state of emergency is declared, the CPA empowers the Premier and other ministers to exercise the powers specified in the legislation. While the state of emergency is in effect, the government, or any minister empowered to act upon the declaration of the state of emergency, may, among other things, without delay and without formality:

  • “order the closure of establishments in the territory concerned” (s. 93(2));
  • “control access to or enforce special rules on or within roads or the territory concerned” (s. 93(3));
  • “require the assistance of any person capable of assisting the personnel deployed” (s. 93(8));
  • “ration essential goods and services and establish supply priorities” (s. 93(11));
  • “have access to any premises for the carrying out of an order under this section” (s. 93(12));
  • “make any expenditure or contract it considers necessary” (s. 93(13)); and
  • “decide to implement, in respect of the territory concerned, the financial assistance programs established under section 100” (s. 93(14)).

In addition to these and other specified powers, s. 93 of the CPA includes a “basket clause” that empowers the Government to “make any other decision as is necessary” (s. 93(2)).

Significant penalties are associated with non-compliance with the CPA. Natural and legal persons that contravene the CPA are guilty of an offence and liable to fines of $1,000 to $5,000 and $3,000 to $15,000, respectively (s. 128).

Limits on the government’s powers

In addition to the domestic constitutional constraints on emergency powers that we have discussed in previous updates – see, e.g., our update on Ontario’s emergency legislation and our update on the federal Emergencies Act – Canada and the provinces are limited by their international law obligations. For example, Canada and 195 other countries have signed the World Health Organization’s International Health Regulations (2005) (the “IHR”). This is a binding instrument of international law that came into force on June 15, 2007. It would bear on Canada’s (and Québec’s) exercise of emergency powers under applicable legislation in response to COVID-19.

The purpose and scope of the IHR are “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade”. The IHR provides that any action taken in the face of an international health threat must be proportional and limited to the risks that the threat presents for public health, and must avoid creating unnecessary obstacles to international traffic and trade.

Measures such as ordering the quarantine of travellers and of those presenting flu-like symptoms – steps that the Government of Canada has taken in response to COVID-19 under the federal Quarantine Act – infringe individual rights and freedoms. As a matter of international law, these and similar measures can only be ordered, under federal law, the PHA, the CPA, or any other domestic legislation, if there are reasonable grounds to believe that the person targeted by the measures has been in contact with a communicable disease (such as COVID-19) that is medically recognized as capable of seriously endangering the health of the population, or has recently been in contact with someone who may have such communicable disease.

Québec courts will not enforce these international law obligations directly. They may do so indirectly, however, by presuming that the legislature intended to comply with international law in enacting emergency legislation. On this basis, Québec courts may limit the application of governments’ emergency powers by interpreting the scope of those powers in light of Canada’s international obligations.

Conclusion

Having declared a public health emergency in Québec, the Québec government now has broad discretionary powers that it can use to combat the spread of COVID-19. While the government has latitude to make orders that it deems necessary to address the crisis, the orders must be proportional and limited to the risks that the threat presents for public health.

Even without declaring a provincial state of emergency under the CPA, the Québec government has already imposed draconian measures with the stated goal of protecting its population and to minimizing the spread of COVID-19. If the government were to declare a provincial state of emergency under the CPA, it would accrue additional powers and be able to implement additional measures.

As other provinces declare provincial states of emergency – in some cases, in addition to declaring a provincial public health emergency – now is the time to consider how the Québec government’s exercise of extraordinary powers under the PHA and, potentially, under the CPA may affect your organization.

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 Caroline-Ariane Bernier or one of the authors.

Authors