“There’s a new kid in town. (…) But after awhile you’re lookin’ the other way.”
-New Kid in Town, The Eagles (1976)
Since March 2020, there has been “a new player in town.” Its shifting shades and styles, myths and origins, prevalence and consequences, led it to become the unavoidable figure of our recent time: COVID-19. As uncertain months loom ahead, we may wish to reflect on the legal landscape irremediably shaped for and by it.
Two provincial laws may be of assistance whenever the Quebec Government considers that its population is facing a serious threat to its safety or health: the Public Health Act (PHA) and the Civil Security Act (CSA). Both Acts contain provisions that are to be implemented under very special circumstances.
When the National Assembly adopted the PHA in 2001, it was considered a turning point in public health policy in Quebec. The purpose of the law was to protect the health of the province’s inhabitants, and to create conditions conducive to maintaining and improving the health and well-being of the general population. The mandates of the National and Regional Directors of Public Health derive from this Act. It governs the work of public authorities while enacting under certain measures the right to have health watch undergone, or intervention conducted, even via coercive powers. These were used in 2009, for example, to order a mass vaccination campaign during the H1N1 pandemic.
On the other hand, the CSA, also adopted in 2001, gives broader powers to the Government of Quebec as far as security threats are concerned: it can lead up to a declaration of a national state of emergency. This state of emergency was never declared in Quebec, not even under the current pandemic situation. Under such, all authorities would be vested into the hand of the Prime Minister and other ministers, in accordance with the powers specified in the Act.
On March 13, 2020, the Quebec Government adopted an Order in Council under section 118 of the PHA, that declares a health emergency throughout Quebec’s territory. This exceptional measure empowers the government to implement an array of measures to protect the health of the population.
From the onset, the National Director of Public Health in Quebec used the powers conferred by the Act to prohibit gatherings according to certain maximum capacity, or to order the closure of public spaces, such as schools, gymnasiums, karaoke, bars, cinemas, etc. As the situation evolved over minutes, weeks, and months, orders were adjusted, removed, or reinstated, throughout under March’s declaration.
Even without a declaration of a health emergency, Quebec’s public health authorities and the Directors of public health may exercise broad powers under the PHA. These powers also remain available after a health emergency has been declared. Specifically, where Director(s) of Public Health are of the opinion that there is a real threat to the health of the population, section 106 of the PHA provides authority for, among other things:
– Order the closure of a place (s. 106 (1));
– Order the disinfection, decontamination or cleaning of a place or certain things, and give specific instructions thereon (s. 106(3));
– Order the cessation of an activity or the taking of special security measures if the activity is a source of a threat to the health of the population (s. 106(5));
– Order a person not attend an educational institution, workplace, or other gathering place, if not immunized against a communicable disease that has been found to be outbreak in that environment (s. 106(6));
– Direct a person to follow specific instructions to avoid contagion or contamination (s. 106(8));
– Order any other action that the Minister considers necessary
to prevent, reduce or eliminate a threat to the health of the population (s. 106(9)).
Once a health emergency has been declared under section 118 of the PHA, the provincial government can exercise a wide range of powers to respond to it. Under different sections of the PHA, the government or its health minister may, without delay and further formality:
– Order the compulsory vaccination of the whole or certain part of the population (s. 123(1));
– Order the closure of educational institutions or other gathering places (s. 123(2));
– Prohibit access to all or part of the territory concerned or allow access only to certain persons and only under certain conditions (s. 123(4));
– Or order the evacuation of persons from all or part of the territory or their confinement and, if the persons affected do not have other resources, their accommodation, their provisions and clothing, and their safety (s. 123(4));
– Order the construction of any work or the installation of facilities for the purpose of sanitation or the provision of health and social services (s. 123(5));
– Order any other measures necessary to protect the health of the population” (s. 123(8)).
Declarations of health emergency expire after 10 days, but they may be renewed indefinitely thereafter. They can be extended by the Cabinet, for 10 days at a time, or with the National Assembly’s consent, by 30 days at a time (s. 119).
Directors of Public Health are appointed for each of the Quebec’s 18 health regions and are responsible, in their respective region, for identifying situations that could endanger the health of the population and for ensuring that measures are in place to protect it. Health Region RSS-17 encompasses the Nunavik territory. Since March 2020, its Regional Director of Public Health has responded to the pandemic alongside the Nunavik Regional Emergency Preparedness Advisory Committee (N-REPAC), and dedicated sub-committees overseeing set portfolios such as transport, tourism, food security, etc. In accordance with section 106 of the PHA, the Regional Director of Public Health enacted travel or activities restrictions, and other public measures so to reduce the reduce the risk of spreading COVID-19 amongst the Nunavik region and communities.
The provincial, territorial, and federal governments, in deploying their public health emergency measures have to consider various international instruments of application, such as the International Health Regulations (2005) which is binding on the World Health Organization and 196 countries, including Canada, and Quebec.
The fact that protective measures were taken by the Government of Quebec and the Directors of Public Health for the benefit of the group raised certain objections on the part of a minority. In some cases, these objections have been transcribed into judicial resources, which will be briefly discussed here.
In November 2021, Justice Nancy Bonsaint of the Quebec Superior Court dismissed a karaoke-loving notary and his lawyer who challenged the validity of the vaccination passport requirement. They were asking that the passport application be suspended on the grounds of an infringement of their fundamental rights and freedom. Soon after, Justice Michel Yergeau from the same court refused the request presented by more than 100 health care workers who were challenging the government order requiring them to be vaccinated to maintain their employment. Although Quebec has since then postponed the mandatory vaccination requirement for workers employed in its health care system, the ruling remains of interest as far as fundamental rights are concerned. While Justice Yergeau did not have to rule on the merits of the case – does the government have the right to require immunization of health care workers? – he had to decide at that stage whether the order could be suspended as a matter of urgency. Yet, the decision states that, “there is no simple right not to be vaccinated,” revoking the argument that such is a fundamental right. This is the context a of “mandatory,” and not a “forced,” vaccination order, an important nuance in the circumstances.
In these legal proceedings, as in the other few dozen which were contesting the public health measures enacted by governments since the March 2020 declaration of health emergency, the job of the judges has not been to question the pertinence of each of these measures, but to check if they were in fact legal. Courts steadily stated that they are not there to rewrite public health orders – a prerogative of the relevant health and governmental authorities – unless there be threat of irreparable abuses which in these cases were not prevalent. That is why these court challenges resulted insofar in zero court victories for the antivax or the anti-health measures, to the exclusion of the case of the curfew for the homeless, a very important recourse which shall be differentiated here considering the distinctive arguments which were under consideration.
Whenever health emergencies are declared, Public Health Directors and governmental authorities enjoy broad discretionary powers so to combat the threats at play. While making the orders deemed necessary to deal with each crisis, these must be proportionate and limited to the risks to public health posed by said threats. While the progression of the contamination to the COVID-19 and its new variants continues to pose a serious public health risk across the province, restrictions and other public measures are to be expected now and again. Until we could all be, safe and sound, and “lookin’ the other way.” We take this opportunity to salute the efforts and dedication of the Nunavik Public Health agents and NRBHSS network workers – nakurmiikmarialuk.