The Constitutionality of Interprovincial Boundary Closures (Part III)

This is the third and final post in a series considering the constitutionality of intraprovincial/territorial border closures. In Part I, I set out the background to the closures, with a summary of which provinces had closed their borders to travellers from other provinces/territories and those implementing other non-closure procedures. In Part II, I considered the constitutionality of the closure provisions (including the federal closure of Canadian borders) under sections 6 and 7 of the Canadian Charter of Rights and Freedoms. In this final post, I look at the enforcement provisions relating both to the closure of borders to out of province visitors and provisions that are imposed on people travelling across provincial/territorial borders.

The federal Quarantine Act illustrates the scope of authority over individuals with respect to areas of their lives that would “normally” be more or less unencumbered. I therefore consider it in some detail.

International travellers may be required to conform not only to federal requirements, but they and domestic travellers may be required to conform to provincial requirements, as well. The federal, provincial and territorial governments have established enforcement mechanisms and penalties for failing to obey these requirements, in some cases significant fines or jail terms. How do these enforcement provisions match up with constitutional requirements under sections 8, 9,10 and 12 of the Canadian Charter of Rights and Freedoms?

The requirements a traveller entering (and leaving) Canada must meet are set out in the Quarantine Act and on the Government of Canada website. A traveller entering Canada, whether a resident of Canada or someone who is resident elsewhere, is required to provide information and undergo a screening. Subsection 14(1) of the Quarantine Act provides,

Any qualified person authorized by the Minister may, to determine whether a traveller has a communicable disease or symptoms of one, use any screening technology authorized by the Minister that does not involve the entry into the traveller’s body of any instrument or other foreign body.

The Quarantine Act also provides for arrest without warrant (s.18) for failure to isolate or to “comply with any reasonable measure ordered by a screening officer or quarantine officer for the purpose of preventing the introduction and spread of a communicable disease” (ss.15(3)). (I note these provisions are not included on the Government of Canada website.) The Act also provides for arrest on the basis of a warrant for contraventions of other requirements and for detention under other circumstances (ss.28ff.); the traveller has the right to review of detention. Section 31 contains provisions for obtaining a court order to require the traveller to undertake certain actions. Travellers may be required to undergo treatment and have personal information transmitted to provincial health authorities to which a traveller is transferred.

People allowed to enter Canada will be asked about specific symptoms and to acknowledge the requirement to isolate or self-isolate; they will be given instructions about their obligations under the emergency order.

Canadian citizens and residents with symptoms may enter Canada by any means other than by air and on arrival, must isolate for 14 days. There are conditions for isolation (for example, not residing with people vulnerable to the virus and using private transportation to travel there) and during isolation. If necessary, a traveller would be required to isolate in a designated facility. Even those without symptoms must self-isolate for 14 days; however, the conditions are slightly less onerous (for example, if a person has symptoms, they must stay inside other than for medical attention, while a person without symptoms can go outside although only to a yard or balcony; persons with symptoms are to be in a separate area of a home, while those without are merely required to maintain physical distancing). (There are also provisions relating to people flying within Canada.)

Persons who violate any of the instructions they are given are subject to 6 months in prison and/or
$750,000 in fines; “a person who causes a risk of imminent death or serious bodily harm to another person while wilfully or recklessly contravening this act or the regulations could be liable for a fine of up to $1,000,000 or imprisonment of up to 3 years or both” (Quarantine Act, ss.67(2)). Other sections provide for equally significant penalties for contraventions of specific provisions of the Quarantine Act (ss.68-70).

Also see Order in Council PC Number: 2020-0260 (April 14, 2020), dealing with mandatory isolation (quarantine), which is addressed to Canada’s Chief Public Health Officer and persons entering Canada (with exceptions, although exempted people must wear masks or face coverings). The Order expires on June 30, 2020.

To sum up: the federal rules apply to anyone entering Canada, with some exceptions; they differ in the requirements imposed on travellers who have symptoms and those who do not. Both must isolate/self-isolate for 14 days. The Quarantine Act gives to peace officers and others power to impose restrictions on travellers, including warrantless arrest under certain circumstances. It provides for substantial penalties for failure to conform to requirements of the legislation and instructions of various authority figures. Section 11 of the Quarantine Act also provides that the federal government may act in conjunction with provincial (and territorial) authorities in implementing the legislation. (For a detailed statement of the provisions, see here.)

Provincial and territorial jurisdictions have their own penalties for failure to abide by their orders under emergency legislation. I make reference to examples here.

Alberta, which has not closed its borders, nevertheless has requirements for people entering Alberta. For example, CMOH order 05-2020 requires anyone with COVID-19 symptoms to be in isolation “for a minimum of 10 days from the start of their symptoms, or until symptoms resolve, whichever is longer” and, in addition to international travellers, anyone who is “a close contact of a person who is confirmed as having COVID-19” to isolate for 14 days. Penalties are “up to $100,000 for a first offence and up to $500,000 for a subsequent offence for more serious violations”.

The NWT Public Health Act contains, among other provisions, provisions that the orders of public health officials follow certain requirements (s.42), relating to service (s.43), judicial enforcement of an order (s.47) and appeals and penalties. Section 49 states that an individual who has contravened or failed to comply with an order or the Act is liable to a maximum fine of $10,000 or imprisonment of up to 6 months or both for a first offence and up to additional fines of up to $1,000 a day if the offence continues (fines increase to a maximum of $25,000 or up to 12 months imprisonment for subsequent offences or both and a maximum of $25,000 for each day the offence continues). (There are more extensive fines for corporations.)

The Yukon’s Civil Emergency Measures Act provides for fines of up to $500 and imprisonment to a maximum of 6 months (or both) (s.11); however, on the Yukon Government’s website, a different approach is emphasized: “Our approach to enforcement is to educate the public and ask for voluntary compliance before laying any charges.”

Ontario’s penalties for failing to comply with an order under the Emergency Management and Civil Protection Act are higher: for an individual, a maximum fine of $10,000 and imprisonment for a maximum of one year, with higher fines for directors of corporations (who are also subject to imprisonment) and corporations (up to $10,000,000); each day the offence continues is a separate offence (s.7.0.11).

Under Saskatchewan’s Public Health Act, 1994, a medical officer of health may order a person to take any step they consider necessary to reduce or eliminate a communicable disease, including someone who has the disease or has or might have been exposed to the disease to isolate themselves; if someone is “probably infected”, the medical officer of health may take tests and the individual must “permit[] the taking of specimens of body tissues, blood and other fluids for laboratory examination” (s.38). The individual may appeal the order. Section 45.1 of the Saskatchewan Act also permits “preventative detention” if an individuals fails to comply with an order to isolate; the individual may request court review of this order. Under section 61, penalties under the Act for individuals are up to $75,000 fine and a maximum of $100 for each day during which the offence continues; for subsequent offences, the maximum fine is $100,000 and a maximum of $200 for each day during which the offence continues.

Under the New Brunswick Public Health Act, COVID-19 has been added by regulation to the list of Group I contagious diseases (see Regulation 2009-136, as am., s.17). A New Brunswick medical officer of health may seek a court order that someone to isolate themselves where the person has not complied with an order to do so by the medical officer of health and submit to an examination by a medical or nurse practitioner (PHA, ss.36(1)). The court may order the person to be taken into custody, detained in a hospital, examined and if found to have the disease, treated for the disease (PHA, ss.36(2). An interim order may be obtained ex parte, with a hearing held within 72 hours (PHA, ss.36(3) and (4)). The peace officer apprehending the individual “shall promptly (a) inform the person of the reasons for the detention and of the person’s right to retain and instruct counsel without delay, and (b) tell the person where the person is being taken” (PHA, ss.36(8)).

Under the NB PHA, if there are “exigent circumstances”, the medical officer of health may order an individual failing to comply with an order to isolate to be detained and examined; the order is valid 24 hours. The peace officer apprehending the individual must follow the same requirements as above. The individual may be detained for up to 72 hours, within which time the medical officer of health must apply to the court. (See PHA, s.42)

Penalties for contraventions of the PHA are found in the NB Provincial Offences Procedure Act. The fine for a category A offence is $140 and for subsequent offences $350. However, it should be noted that the penalty for contraventions of the NB Emergency Measures Act is between $240 and $10,200, for subsequent offences, $15,000.

Provisions similar to those of New Brunswick relating to apprehensions are found in the Nova Scotia Health Protection Act. Section 47 of the NSHPA provides that when a medical officer of health detains a person who has failed to obey an order and they are considered to be a “significant and imminent threat to the public health”, the individual is to be informed of the right to counsel (also see para. 39(3)(a)).

I addressed the constitutionality of the actual closure of provincial/territorial borders in my last post. All jurisdictions have enacted emergency legislation that enables the government to make orders affecting significant aspects of people’s otherwise everyday lives. Officers of public health are given highly consequential powers under public health legislation, especially in a pandemic context.

(On this last point, I note, given the interest in whether the government will impose a mandatory vaccination for COVID-19, once one is found, if one is found, that medical officers of health already have the authority to order someone to be vaccinated: see, for example, the Saskatchewan Public Health Act [para. 45(2)(d)] and the BC Public Health Act [para.16(1)(a) and B.C. Reg. 52/2009/O.C. 129/2009 providing for procedures to be followed by the officer of public health when making orders, although the BCPHA permits these to be overriden in an emergency).

The powers under federal and provincial/territorial legislation applicable to the coronavirus pandemic relating to travel are intended to permit a jurisdiction to maintain control over developments in the jurisdiction without concern for how other jurisdictions are addressing the pandemic. Not all jurisdictions consider it necessary to take the steps of “closing” the border or of requiring persons seeking to enter the province or territory to undertake additional actions if they are travelling within Canada; of course, travellers entering Canada from elsewhere are required to follow the same rules promulgated under the federal Quarantine Act. It must also be recognized that all jurisdictions, federal and provincial/territorial, have exemptions that permit travellers to enter either by following requirements specific to them or without requirements if they have no symptoms.

The main requirements for travellers entering Canada or (from elsewhere in Canada) a jurisdiction that has requirements are those of self-isolation, screening and testing if they have symptoms through questioning about the state of the individual’s health and their contact with others. Alberta, for example, has requirements for travellers arriving from outside Canada and within Alberta; it does not recommend non-essential travel outside Alberta, but it does have specific requirements for people arriving from other provinces or territories. BC does not have requirements for people arriving from other provinces, although it recommends avoiding non-essential travel to Alberta; however, roads linking BC to the NWT and the Yukon remain closed because of entry restrictions implemented by those two jurisdictions. With some exemptions, Nova Scotia requires anyone entering the province to self-isolate.

Jurisdictions have been enforcing these requirements. For example, early in the pandemic (April 1st), in Nova Scotia two people were charged under the Health Protection Act with failing to self isolate after returning to Canada (and fined $1,000) and a third who may or may not have been an international traveller, but was required to self-isolate. (See CTVnews report here.) Saskatchewan has also detained people who have refused (or are unable) to self-isolate and placed them in a remand centre (see Global News story here). One might note a difference between people who are able but refuse to self-isolate when required and individuals who have nowhere to self-isolate when required. In the latter case, some jurisdictions are providing spaces to allow the homeless to self-isolate with a focus on the individual and the particular problems they face (see, for example, BC’s arrangements for community sites here).

The potential consequences of failing to self-isolate when required to do so was recently manifested in New Brunswick when a doctor returning from non-essential travel to Quebec returned to work on his return to New Brunswick. He may have then had contact with up to 150 people, at least 8 of whom have tested positive (including his own father and son). (See The Globe and Mail stories here and here.) Of course, each of these people need to be traced and if they test positive, everyone they came into contact with must be traced. The doctor might have contracted COVID-19 without leaving the province and failed to self-isolate if he did not have symptoms; however, because he left the province, he should have self-isolated immediately on his return, regardless of whether he had symptoms. (He has been suspended from practising and is being investigated by the RCMP.)

With respect to border closures generally, Michael Bryant, the executive director of the Canadian Civil Liberties Association, makes the point that restrictions shouldn’t matter whether you are “local” or entering the province from elsewhere. The CCLA also stresses the need for scientific evidence to justify border closures in its lawsuit challenging Newfoundland and Labrador’s closure and the power to remove people from the province who do not live there.

In considering quarantines, the CCLA has acknowledged in a post, “From a principled perspective, … the impact on the liberty and security of the person of the quarantined may be less onerous than criminal and quasi-criminal law detentions. It follows that the due process attaching to a quarantine may not be less than that in the penal context.” However, it also recognizes that quarantine may be stressful, that conditions must meet a certain standard and there must be a right to have an order reviewed. Furthermore, if particular groups were quarantined (here the reference is to equality-seeking groups), it would raise a section 7 or section 15 issue.

I do not intend to assess all the jurisdictions for compliance with Charter requirements or even those I have mentioned to illustrate the extent to which jurisdictions appear to be complying through legislation. In most cases, the reason a constitutional issue may arise is because of particular cases to which the provisions have been applied.

Arbitrary orders to isolate or to be tested, even during the pandemic, are likely to contravene Charter guarantees and are unlikely to be justified under section 1, at least under current circumstances. Public health legislation makes it clear that the orders are not intended to be “arbitrary”, but this does mean even if not completely arbitrary, they satisfy Charter requirements.

Assume, then, that an individual is detained under public health legislation because the person has symptoms or has been in contact with someone who is known to have or to have had COVID-19 within the time period when the individual could have contracted it and is ordered to be tested for COVID-19.

Section 9 of the Canadian Charter of Rights and Freedoms states, “Everyone has the right not to be arbitrarily detained or imprisoned.” Public health legislation provides for detention under certain circumstances. For example, if a person has been ordered to self-isolate and refuses to do so, they may be detained.

As indicated, public health legislation may provide for those apprehending someone to follow certain requirements. In R. v. Suberu, McLachlin CJ and Charron J, for the majority, said, “not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter” (Suberu, para. 3). However, there are circumstances that will usually constitute a detention:

…[I]t is clear that an individual may be detained within the meaning of the Charter without being subject to actual physical restraint. Where the subject is legally required to comply with a demand or direction that interferes with his or her liberty, detention is usually easily made out. Where there is no legal obligation to comply but a reasonable person in the subject’s position would conclude that he or she had been deprived of the liberty of choice, a detention is also established. (Suberu, para. 4)

Under section 10 of the Charter, a person must be informed of the reasons for the detention and to retain and instruct counsel and be so advised. The individual is to be advised of their section 10 right to counsel at the initial point of a detention. A police officer may begin an interaction with someone in order to obtain information, without either physical or psychological restraint, and only subsequently actually “detain” the person. In that case, the right to counsel does not begin until the point into the interaction when detention takes place. (Suberu, para. 5)

The public health legislation is explicit that in apprehending an individual for failure to self-isolate or otherwise breaching an order of the public health officer is a “detention”. This, while not necessarily occurring in a criminal context, nevertheless would attract the application of section 10(b) of the Charter. Some legislation explicitly requires the person be informed of the right to counsel, such as that in New Brunswick and Nova Scotia. However, the point at which the right to counsel actually comes into play may depend on how the person apprehending the individual initiates the apprehension. It might, for example, be necessary to ask questions to ensure that the person being apprehended is who they are thought to be or to ascertain that the conditions for apprehension have been met; for example, in Nova Scotia, the medical officer of health must be satisfied the individual poses a “significant and imminent threat to the public health”. The apprehending officer is required to advise the individual why they are being detained: when the officer does so would be a factor relevant to whether the individual would be advised of the right to counsel.

One issue that would have to be determined, though, is whether an individual under these circumstances believed themselves to be physically or psychologically under restraint a the earliest stages of the interaction. Assuming the officer satisfied the requirement to explain that they were stopping the individual or questioning the individual because of a concern that the individual had failed to isolate (when crossing the provincial border or otherwise), it would be clear that this was not a general inquiry, but one specifically directed at the individual and that it was likely the officer planned to apprehend the individual. (See Suberu, paras. 32 to 34 for the factors determining whether there was a detention.)

As I previously mentioned, some public health statutes are explicit about advising an individual being detained about the reasons for the detention and of the right to counsel; even if they are not, the circumstances would require the individual be advised of their section 10 guarantees. Section 10 of the Charter also guarantees “the right to retain and instruct counsel without delay” and this opportunity must be provided at the time of detention, unless it is not feasible to do so (Suberu, para. 42).

Following detention for failure to isolate, an individual may be required to undergo testing to determine whether they have COVID-19, bringing section 8 of the Charter into play. Section 8 contains its own limitation, although it is also subject to section 1; a search or seizure must be “unreasonable” to contravene the guarantee.

Compelled testing, an invasive procedure, to determine if someone has the coronavirus might constitute a seizure for the purposes of section 8 if the individual has an expectation of privacy. The type of test may be relevant, since a nasal swab test, considered to be more accurate than a finger prick test, may be temporarily painful or at least uncomfortable. (On testing and accuracy, see here.) It would also matter that a mandatory test be required only if there were a reason to conclude the person might have contracted COVID-19, either because of symptoms or contact with someone who is infected. Furthermore, a positive results of the nasal swab would result in a requirement to self-isolate and, if the individual refuses to isolate, to detention (an order to isolate might be made even if the result is negative if the time for symptoms to show has not passed).

Section 12 of the Charter guarantees “the right not to be subjected to any cruel and unusual treatment or punishment”. In R. v. Morrisey, in the context of a prison sentence that did not take pre-trial custody into account, Gonthier J., for the majority, described the significance of section 12:

Section 12 of the Charter provides a broad protection to Canadians against punishment which is so excessive as to outrage our society’s sense of decency: …. The court’s inquiry is focussed not only on the purpose of the punishment, but also on its effect on the individual offender. Where a punishment is merely disproportionate, no remedy can be found under s. 12. Rather, the court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. (Morrisey, para. 26; citations omitted)

Are mandatory isolation/quarantine and testing cruel and unusual forms of treatment? Many people are self-isolating and receiving tests for COVID-19: does making them mandatory (and isolation more restricted) raise these treatments to such a level as to make them grossly disproportionate, abhorrent or intolerable? While they may contravene other Charter rights, especially if not ordered in accordance with legislative protections, they likely do not contravene section 12.

The penalties imposed by the various jurisdictions, which range up to a fine of $1,000,000 and 3 years in prison, might also be challenged under section 12. The highest penalties apply to someone whose reckless conduct risked someone else’s imminent death or serious harm and most of the other fines and terms of imprisonment are considerably less, although not minor in every case. Furthermore, the wording of these penalties is that they are the “maximum” penalties and thus in the particular circumstances of the case, might be lower, not attracting consideration under section 12 or not contravening the right at the initial analysis.

Assuming violations of sections 8, 9, 10 or 12 of the Charter, would a court find them reasonably justifiable under section 1? The court would consider the relevant legislative provisions and whether the conduct at issue had been taken in conformity with those provisions; in cases in which the legislation itself permitted orders for isolation or testing to be made without the usual legislative protections, the court would have to consider whether allowing the displacement of protections for the reasons given was justifiable. (Here I note that where the legislation permits the orders to be made without following the protections, it explains why doing so is permitted: have those conditions been met?)

The court would also consider whether the contraventions are justified because the impugned actions have been taken to keep control of the pandemic: are self-isolation orders required for all travellers crossing a provincial border, noting how extensive the exemptions are? have other approaches that are less restrictive been taken into account, especially for example for homeless people who cannot easily isolate? is it necessary to require testing if someone does not consent (on this, not knowing if someone may have infected others would be detrimental to containing the virus). Underlying the section 1 analysis needs to be the recognition that these provisions are directed at protecting others from the spread of the virus. This does not mean that the actions of public health officers and peace officers apprehending people can be arbitrary, or that under other circumstances, might have difficulty under section 1, but it does suggest the government would have an easier time meeting the test under section 1.

Finally, I note that many of the actions permitted are allowed only because provinces and territories have declared states of emergency and that it will be necessary to justify not only the actions themselves but the reason for them: that there continues to be a state of emergency in the current stage of the pandemic.

Comments

  1. An Australian lawyer

    All three of your posts are very interesting. There is presently an challenge underway in the High Court of Australia to a border closure in Western Australia that is presently in force. The challenge is likely to be heard in September 2020 before a full bench. We have no equivalent of the Charter. However, the US Supreme Court held in Crandall v Nevada (1868) that Nevada could not unilaterally close its interstate borders, and therefore could not unilaterally tax interstate border crossings. That case has been followed in Australia, in R v Smithers (1912). Has it ever been followed in Canada? Also, is there case law in Canada (other than Rand J in Winner) to the effect that a non-sovereign jurisdiction (such as a province or Territory) simply cannot close its borders to humans, even to non-citizens? (There is such case law in Australia.)

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