Emergency Act not needed, at least not yet

In parts of the country, Canadians have been leaning out their windows, staring out at groups of people drinking, partying and carrying on; throwing social distancing entirely to the wind.

Images of the revellers, blindly unaware or indifferent to the risk they are posing amidst the COVID-19 pandemic, have been shared widely on social media. Lots of folks have been asking: why is nobody stopping this?

On Sunday, as Prime Minister Justin Trudeau continued to implore Canadians to stay inside, a reporter asked a question that has been on many lips: “Why not invoke something stricter, like the Emergencies Act? Why not restrict people’s civil liberties to protect their health?”

That is an absurd trade-off in regular times. That act is the successor to the much-reviled War Measures Act, which allowed for the internment of Japanese-Canadians at the outset of the Second World War and for the suspension of all civil liberties during the October Crisis. It would give Ottawa authority over the free movement of the whole country, and the power to send in the military if we don’t comply.

The push to invoke the federal act falls under a maxim recently made famous by an Irish health official, encouraging the world to “be fast, have no regrets.” But Trudeau has resisted the call, telling the reporter he wouldn’t invoke the act until “we’ve exhausted all other steps.”

But that could change on a dime. Trudeau could invoke the Emergency Act as early as today and, indeed, have no regrets. Why would he?

To start with, Ottawa already has pretty wide latitude to impose self-isolation and quarantine on those at risk. Most COVID-19 cases in Canada are still linked to travel. Thanks to the federal Quarantine Act, officers at ports of entry can stop and screen travellers, and Ottawa has already used the act to order returnees to self-isolate. It can also order those breaking those orders to be arrested and detained, though it hasn’t used that power yet.

As of this past weekend, all provinces had declared health emergencies, giving them a raft of powers to stop the virus’s spread.

Ontario can shut any building or business, regulate travel in the province, or implement price controls. British Columbia can press civilians into service or allow officers to enter buildings without a warrant. Quebec’s law is open-ended enough to allow for just about any action deemed “necessary to prevent a threat to the health of the population.”

Many of these powers are found, with some variations, in acts across the country. They are not without safeguards. A primer prepared by lawyers at McCarthy Tetrault noted that B.C.’s law (which is similar to other laws across the country) is subject to legal and constitutional challenge, “but it has enormous latitude to make orders that it deems necessary to address the crisis.”

Police in Quebec have already arrested one woman, who had tested positive for

COVID-19, for breaking her quarantine. They have also broken up dozens of parties and social gatherings, based on complaints from neighbours. The governments of Saskatchewan, Alberta and Nova Scotia have issued pointed warnings to citizens that police won’t hesitate to issue fines or make arrests if need be.

Not all the provinces have been so clear. Ontario police have warned of fines, but the government has been circumspect. In British Columbia, Health Minister Adrian Dix said social distancing orders “have to be enforced,” but his government has been vague as to how they should ensure that.

So if the provinces have the power to do virtually anything to stop this pandemic, and have only begun exercising that authority, why invoke the Emergencies Act?

The big benefit is consistency. Orders have varied by province, including which businesses must be closed, how stringent the restrictions on social gatherings are, and whether self-isolation orders are required or merely encouraged.

The Emergencies Act gives Ottawa power to regulate all domestic travel, and allows for wide power to arrest and detain, for up to five years, those ignoring emergency orders. That would apply uniformly across the country. It could allow for the Canadian Forces to ensure those orders are followed.

The federal act has checks and balances, too, as it is reviewable by Parliament, the courts, and is subject to the Charter of Rights and Freedoms.

But the big caveat in the act is that it requires that the crisis “exceed the capacity or authority of a province to deal with it.”

For the time being, it does seem that the provincial emergency declarations are enough — at least insofar as the provinces are not yet using all of the powers legally available to them. Any lag in action appears to be less a question of resources or manpower than a hope that citizens will, with enough goading, follow the rules. They appear to be hoping police enforcement is a measure of last resort. To that end, having Ottawa manage that response may stymie local action, not improve it, even if you could make the case that provincial capacity has been exceeded.

But this calculus, as the prime minister pointed out, may change. If social isolation measures need to continue for weeks to come, and people begin ignoring public health orders, the strain may exceed what the provinces can handle. Draconian measures may be necessary for the public good.

We shouldn’t clamour for this kind of measure. Government actions that tread on our civil liberties are so often ineffective, excessive or so rife with unintended consequences that they often worsen the problem they seek to fix.

But what happens next really depends on how the quarantine spring breakers act.

“When people are playing fast and loose with the rules,” Hajdu warned Saturday, “it actually does put our civil liberties in jeopardy.” We should listen.