When 'asks' become 'orders': What does it mean to live in a state of emergency?
Civil libertarians say it's important to guard against overreach when using extraordinary powers
The past week has seen Canadians volunteer to radically alter their lives in a mass effort to contain the spread of COVID-19.
But as B.C. provincial health officer Dr. Bonnie Henry noted in a public briefing this week — compliance is not "optional."
And with the declaration of both a provincial state of emergency and a public health emergency, Henry's "asks" have turned into "orders."
She now has the legal bite to match her bark. But what does that mean in terms of enforcing orders for self-distancing, self-isolation and self-quarantine? And what rights will British Columbians retain as they struggle to comply with unprecedented restrictions of their civil liberties?
"I think what we're seeing right now is a whole range of incredibly important and necessary government measures to ensure public health and so we are completely supportive of all measures to ensure that public health is prioritized at this time," says B.C. Civil Liberties Association executive director Harsha Walia.
"Within that, we're vigilant and want to ensure that any kind of extraordinary government measures and powers do not unreasonably or unjustifiably limit civil liberties and human rights and to ensure that these are reviewed."
'You actually did need more powers'
B.C.'s Public Health Act contains a series of checks and balances against overreach in normal times.
Those include the ability of people who are the subject of orders to request a review and the necessity for medical health officers to make their orders in writing.
An emergency declaration narrows those avenues of appeal. It allows Henry to make oral orders. It allows her to conduct inspections, "at any time, with or without a warrant," of any place, including private dwellings. And where people refuse to comply, the emergency powers give her the ability to go to a provincial court judge to order someone's detention.
The Public Health Act replaced the B.C. Health Act in 2008.
Henry's predecessor, Dr. Perry Kendall, says the previous legislation didn't contain the same types of emergency powers.
He was among the medical health professionals who called for the changes — largely because they feared the possibility of a pandemic like COVID-19.
"We actually rewrote the act from the beginning," he says.
"And one of the things that we felt was necessary was in the normal course of things to be less authoritarian and paternalistic, and to recognize more civil rights and people's abilities to make choices, but also recognizing that when you had a public health emergency you actually did need more powers than the old act gave you."
'They were very happy to comply'
The COVID-19 situation is actually the second public health emergency B.C. has declared. Kendall was the province's top doctor when he called on his emergency powers to manage the opioid crisis.
He says the expanded powers enabled him to order information and records like the emergency call logs for ambulances without having to go through lengthy applications related to privacy and freedom of information.
"What I was hearing from my colleagues was that there was information that they would like to have that would help them respond more rapidly and effectively to the overdose," he says.
"They were very happy to comply. We were able to get call times, call volumes, the geo-location to which the calls went."
The information gave Kendall the ability to deploy scarce resources to specific locations: "so you didn't have to guess where to put an overdose prevention site or an outreach team."
The provincial state of emergency also gives Health Minister Adrian Dix a set of powers that appear particularly relevant as people grapple with the meaning of social distancing and complain about their neighbours hoarding toilet paper.
The minister has the ability to prohibit travel to or from anywhere in B.C. and the Emergency Program Act also give him the right to "procure, fix prices for or ration food, clothing, fuel, equipment, medical supplies or other essential supplies and the use of any property, services, resources or equipment."
Guarding against overreach
This week, the B.C. courts suspended all but the most urgent operations, but in his directions, B.C. Supreme Court Chief Justice Christopher Hinkson noted that the court would be prepared to deal with matters under both the Public Health Act and the Quarantine Act.
Like many in the legal community, Walia is boning up on both provincial and federal emergency powers at the moment.
Ottawa has not declared a national emergency, and if it did, it would be the first time the federal government has done so under legislation that replaced the old War Measures Act.
That act was used three times, during the First World War, the Second World War and the October Crisis in 1970.
And it was the excesses of government measures during those periods that causes civil libertarians concern today: the forcible removal of Japanese-Canadians from their homes in the 1940s and the detention and arrest of thousand of people in Quebec in a bid to catch members of the FLQ.
Walia stresses the importance of everyone taking their civic responsibilities to act as one to protect the most vulnerable in society during a pandemic.
But she says it's important to guard against overreach — raising the possibility of Canadians being stranded and barred from returning home as one possible example for consideration.
"In this case, it's measuring whether there are state enforcement actions, state powers that are infringing on civil liberties in an unreasonable and unjustifiable way," she says.
"We haven't identified any as such but we will continue to monitor the situation."
Kendall says pondering the possibility of having to curtail individual rights is one of the toughest parts of training for people entering into the public health field.
He also believes that no matter what powers Henry has, the most powerful weapon in her arsenal is the ability to muster and direct social disapproval.
"That works very strongly," he says.
"People disapprove of you and you know it. You feel it."
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