Quarantine and the constitution: Are Newfoundland and Labrador's public health measures legal?
Many people have questioned whether the Newfoundland and Labrador government's public health measures are consistent with the Charter of Rights and Freedoms. But I have not heard anyone pose the more basic constitutional question: does the province have jurisdiction over matters of quarantine in the first place?
The Charter is not the only relevant part of the Canadian Constitution.
Equally relevant is the Constitution Act 1867, which defines the division of powers between the federal Parliament and the provincial legislatures. Section 92 gives the provinces exclusive authority over the "establishment, maintenance, and management of hospitals, asylums, charities, and eleemosynary institutions in and for the province, other than marine hospitals." This section has been interpreted broadly to give provinces authority over most health-related matters.
The Constitution reserves one crucial health-related power for the federal government: Section 91 gives Parliament "the exclusive legislative authority" over "quarantine and the establishment and maintenance of marine hospitals." This section is the basis for the federal Quarantine Act 2005.
If we are not careful, our 'new normal' will be a society that is much less free and much more divided.
On the face of it, the provincial government does not have any authority over matters of quarantine. The Constitution assigns this authority exclusively to the federal government.
How much power does the federal government have? The boundaries of the federal quarantine power have never been tested in court.
Surprisingly, the Supreme Court of Canada has never heard a case about that subsection of the Constitution, but it is just a matter of time. There will be dozens of legal challenges to provincial public health measures — and one major point of contention will be how broad and how exclusive the federal quarantine power is.
In a 2007 article in the McGill Law Journal, Amir Attaran and Kumanan Wilson argue that the federal power is far-reaching: "Subsection 91(11) quarantine power confers on the federal government the jurisdiction to legislate in respect of all necessary measures of epidemic preparedness and response."
The purpose of this subsection was to give the federal government authority over infectious disease control.
In 1867, when the division of powers was drawn up, viruses had not yet been discovered. Isolating ships and sailors was the primary method of controlling the spread of infectious diseases — hence the archaic part about marine hospitals.
'Constitutional interpretation not cut and dried'
The quarantine power has to be interpreted in light of 150 years of technological change.
In the era of aviation, it does not make sense to limit quarantine to ships and sailors. Nor does it make sense to limit quarantine to international ports, because people and pathogens can now travel across the country in a few hours.
And, in the era of modern medicine, isolating people is only one among many methods of controlling the spread of infectious diseases.
If Attaran and Wilson are right about the scope of the federal quarantine power, then some parts of the provincial Public Health Protection and Promotion Act are "ultra vires," which is legalese for "beyond the powers" of the province. Charter issues aside, it is doubtful that any province has the authority to restrict interprovincial travel or to issue self-isolation orders.
If anyone has the authority to take these actions, it is the federal government. However, the issues of constitutional interpretation here are not cut and dried. The courts could interpret the federal quarantine power narrowly to leave more room for provincial action.
For instance, the courts could distinguish quarantine from isolation, as the Public Health Protection and Promotion Act does: "(p) 'isolate' and 'isolation' mean the separation of a person who has or is suspected of having a communicable disease from contact with persons who are not infected. [...] (cc) 'quarantine' means the separation of a person who has been or may have been exposed to an infectious agent from contact with other persons to determine if he or she is infected."
'Self-isolation is a misnomer'
In other words, isolation is based on the presence (or suspected presence) of infection, whereas quarantine is based on the possibility or risk of infection.
This means "self-isolation" is a misnomer.
Since the provincial order for travellers to "self-isolate" is based on the possibility of infection, not the presence of infection, it is actually a form of quarantine. Even by its own definition of quarantine, the provincial Public Health Protection and Promotion Act encroaches on an area of exclusive federal authority.
I am not the only one who sees a legal problem here.
Professor Steven Hoffman, an expert in public health law at York University, recently told the New York Times that provinces do not have the authority to quarantine: "In Canada only the federal government can order quarantine, Professor Hoffman said. Provinces are limited to isolating infected patients."
Contempt for the constitution
The provincial government has been dismissive of legal concerns about the Public Health Protection and Promotion Act.
Health Minister John Haggie says people who object to the law are free to challenge it in court, as though that immunizes the law from criticism in the meantime. Would a new law that suspends our voting rights be just fine until the courts get around to striking it down?
The government has an obligation to ensure its legislation is consistent with the Constitution in the first place. Since the government claims the authority to quarantine, it should explain the constitutional basis for this authority. It is not enough to say, as the government does, that its public health measures are temporary. The fact that a measure is temporary does not make it legal.
"Temporary" in this context means "indefinite": this public health emergency will remain in effect for months or longer.
The government could use the threat of a second (or third or fourth) wave to justify keeping this emergency in effect for years.
The danger of emergency measures
In times of crisis, it is tempting to set aside constitutional constraints on the power of government. Abstract ideas about rights and authority are easily displaced by concrete concerns about health and safety.
We should recall why we have a Constitution in the first place. The Charter of Rights and Freedoms protects us from arbitrary and discriminatory uses of power, and the division of powers keeps the federal and provincial governments within their bounds.
These constitutional constraints are especially important during crises, when governments — driven largely by our fear— tend to go too far. Well-intentioned emergency measures are among the greatest threats to a free society.
Provincial emergency measures, many of dubious legality, also threaten national unity. Some of the new borders between provinces (and municipalities) will not be easy to take down, especially because the threat of further "waves" provides an indefinite excuse for keeping these borders up.
If we are not careful, our "new normal" will be a society that is much less free and much more divided.