Sunday, 24 April 2022

Suggested Changes to the New Brunswick Public Health Act & Regulations to improve New Brunswick's response to COVID-19 & future pandemics.

With the State of Emergency in New Brunswick ending on March 14, 2022, New Brunswickers find themselves in a situation similar to when the prior State of Emergency terminated on July 30, 2021. The legal source of authority for the New Brunswick Government to manage the Covid-19  pandemic reverts largely back to the Public Health Act. There are sufficient tools within the Department of Public Health to manage localized outbreaks of COVID-19 without requiring a new State of Emergency to be declared. However, the Legislative Assembly should consider amendments to the Public Health Act to provide stronger legal authority to manage instances of larger outbreaks of COVID-19. Using the Emergencies Measures Act as the legal basis for pandemic management would be inappropriate due to its impact on the rule of law. Should the Public Health situation require additional tools, unless amendments to the Public Health Act occur, it is probable that New Brunswick would be the only Province using its State of Emergency powers in a subsequent wave of COVID-19.

List of suggested Legislative Changes to the Public Health Act and Regulations.

  1. Clarify the powers of Regional Medical Officers of Health and the Chief Medical Officer of Health respecting Notifiable Diseases: Presently the Public Health Act does not distinguish between the powers of a Regional Medical Officer of Health and the Chief Medical Officer of Health. This can lead to institutional confusion when a Regional or Chief Medical Officer of Health should use their powers.
  2. Class Orders: Amend the Public Health Act to clarify that the Chief Medical Officer of Health can issue Class Orders under s.33(1) related to notifiable diseases. Consideration should be given on whether Regional Medical Officers of Health can issue class orders. This would ease the current practice of Medical Officers of Health issuing a separate order for each individual person respecting a notifiable disease.
  3. Reporting Obligations of Principals and Childcare Operators: Amend s.29 of the Public Health Act to clarify in law that Principals and Early Learning and Childcare Facility operators must report all notifiable disease to correct an inconsistency in the Act. Cabinet can also issue a regulation to achieve this task.
  4. Clarify Closure Order powers of Medical Officers of Health: Either amend s.6(12) of the Public Health Act to allow for the closure of a premise due to a notifiable disease in a human or indicate in s.33(4) that a medical officer of health can order the closure of a premise if there is a notifiable disease in a human. Presently, Public Health has more institutional practice in closing premises related to Health Hazards which do not include human diseases. The Chief Medical Officer of Health should be given the power to issue a class order to close certain categories of premises.
  5. Mask Wearing: All Medical Officers of Health currently have the legal authority to issue mask wearing under s.33(1) of the Public Health Act. For interpretative clarity, adding an additional subsection under s.33(4) to clarify Medical Officers of Health can issue orders related to prophylactic measures intended to prevent the transmission of notifiable diseases.
  6. Assign additional Public Health duties and Powers to the Chief Medical Officer of Health: Similar to the Manitoba Public Health Act, provide the Chief Medical Officer of Health the power, on reasonable grounds, to revoke, or amend orders, or issue directives to subordinates on how to carry out their duties under the Act.  
  7. Enhance the powers of the Minister of Health to respond to pandemics: Restore powers under the original 1918 Public Health Act to authorize the Minister of Health to “take such steps as the Minister deems necessary related to the prevention and suppression of a notifiable disease or condition, or communicable disease”  The Minister currently has substantive powers respecting health hazards but not notifiable diseases. This helps ensure a better linkage to Cabinet and the Legislative Assembly respecting Ministerial accountability.
  8. Increase fines for non compliance with Public Health Orders: Presently a failure to comply with an Order of a Medical Officer of Health is a Category E offence with a fine range of $240 and $5,200 plus fees. Under the Provincial Offences Procedure Act a ticket issued by peace officers must be $240. The Legislature may wish to increase the amount of the fines to ensure compliance.
  9. Authorize Peace Officers , at the direction of a Medical Officer of Health to stop individuals at checkpoints or at place of residence for the purpose of Quarantine or Isolation verification: Unless authorized by statute, Peace Officers do not have the authority to stop individuals without reasonable grounds to demand identification and travel registration documentation. To prepare for a future travel registration scheme, the Public Health Act should be amended to authorize peace officers a limited power stop and request identification at designated checkpoints for the purposes of quarantine or isolation requirements. In the case of Class Order isolation or Quarantine Enforcement, Peace Officers should also be authorized to demand identification at a person’s place of residence or declared place of quarantine or isolation.
  10. Clarify when Peace Officers can enter premises and a private residence without being accompanied by or assisting a Medical Officer of Health or Health Inspector: The Public Health Act provides Medical Officers of Health or Health Inspectors the authority of warrantless enter any premises at reasonable times to ensure compliance with the Act. Peace officers can provide assistance if requested. Entry into a private residence requires a warrant unless in an emergency situation. Consideration as to when peace officers have the authority to enter independently or a delegated right of entry to enforce s.33(1) orders should be given with the intent to balance Charter Rights.

  1. A Declaration of a Public Health Emergency: To avoid future use of the Emergency Measures Act to deal with a public health matter,  the Public Health Act should be amended to allow for the declaration of a Public Health Emergency. Powers under the Act would be restricted to enumerated powers such as civil immunity, certain timelines, procurement of medical supplies, provincial intraprovincial travel restrictions or province wide entry quarantine or isolation orders. The power to declare a Public Health Emergency should be given to the Minister of Health based on the recommendation of the Chief Medical of Health. This declaration aligns with the existing power of the Minister of Health or Chief Medical Officer of Health to declare a disease as a notifiable disease in a Public Health Emergency. The Minister also has a separate power to expropriate property during a Public Health Emergency. Unlike the Emergency Measures Act, use of the Public Health Act ensures that all orders under Act must be confined to addressing a public health matter. This interpretive restriction increases the compliance with the rule of law. Consideration should be given to legislative oversight for extensions of this power and subsequent legislative review. If there are incidental matters related to non Public Health statutory timelines then it is for the Legislature to be summoned to make adjustments on a case by case basis.
  2. Amendment to ensure that any Public Health Order or Public Health Emergency does not unduly restrict the rights and freedoms of Canadians: This would mirror  Manitoba’s Public Health Act which places a legal obligation on the exercise of emergency powers which impact rights or freedoms must be no greater than is reasonably necessary to respond to a threat to Public Health. This ensures that the Government cannot use a Public Health Order for a non Public Health purpose and also prevents an overbroad application of  a Public Health Power.
  3. Add a new subsection 59(d) to clarify the independent and impartial roles of Medical Officers of Health: The Public Health Act should be amended to require, similar to Newfoundland & Labrador that “A Medical Officer of Health shall exercise their powers and perform their duties impartially and independently in order to best protect and promote the health of the people in the province.” This would provide clarity that Medical Officers of Health are required to exercise their powers and duties solely from the lens of a Public Health perspective. This ensures that the Minister or Cabinet as required is responsible for deciding larger policy considerations as they are responsible to the Legislative Assembly.

Amendments to Public Health Regulations

  1. Mandatory Information Sharing with the federal government. Cabinet should amend the Reporting and Disease Regulation to mirror Prince Edward Island’s requirement that contains a mandatory reporting requirement to the federal government for the purposes of national disease surveillance. This would also help formalize a request to the federal government that there is automatic sharing of information of individuals subject to the federal Quarantine Act. This would ensure that provinces receive information of individuals arriving at Ports of Entry in an expeditious manner.
  2. Clarify that principals or early childcare operators must report COVID-19 as a notifiable disease. Section 29 of the Public Health Act requires the principal of a school or the operator of an early childhood learning facility to report certain diseases to Public Health. Presently, COVID-19 is not specified as a reportable condition under this section which may impact COVID-19 surveillance. Department of Education and Early Childcare Development material suggest that this may already be occurring without the clear legal authority to do so. Cabinet can amend the Reporting and Diseases Regulation to specify that COVID-19 is a reportable disease by a principal or early childcare operator.
  3. Allow for substituted online service for class orders using Cabinet powers: Cabinet via regulation 69(ss) has the authority to  prescribe  the manner in which an order, notice or document may be given or served.  In practice this means that Cabinet could state that a class order may be posted online.

Legal Source of Power of Government to respond to notifiable diseases

Division III of the Public Health Act governs notifiable diseases which are diseases that are prescribed by regulation or order to be disease of a certain severity to impact public health. Within this framework, are Group I notifiable diseases which are either defined in statute or regulation as being highly infectious with a considerable impact on a population. This provides the government with additional powers to detain an individual to seek medical treatment in order to prevent community spread or issue orders to regulate the behaviour of New Brunswickers. COVID-19 is classified as a Group I notifiable disease under the Reporting and Diseases Regulation, NB Reg 2009-136.

These specific powers afforded to Medical Officers of Health and plenary powers granted to Cabinet provide sufficient legislative authority to manage COVID-19with respect to isolation orders, mask mandates, quarantine, and vaccination passports. On July 29, 2021 in an interview with CBC, the Chief Medical Officer of Health viewed that her department did not have the legal authority to impose orders affecting groups of people in an area or for example require mask wearing.[1] This is a very narrow interpretation of Public Health powers which will be discussed in greater detail.

The New Brunswick Cabinet has plenary regulatory powers delegated by the Legislature to make regulations in relation to the control of notifiable diseases and respecting the vaccination of residents in the province.  These powers were first used to enact the COVID-19 Preventative Measures Regulation – Public Health Act on September 17, 2021.

Public Health Act Powers

Medical Officers of Health

The Public Health Act provides Medical Officers of Health (including the Chief Medical Officer of Health) considerable powers to prevent and mitigate community transmission of a notifiable disease. These powers are not exhaustively defined and provide a general power for Medical Officers of Health to take any action that is necessary to “prevent, decrease, or eliminate the risk to health presented by the notifiable disease.”[2] The conditions for this power to be triggered is that a notifiable disease exists or may exist in a health region and that the notifiable disease presents a risk to the health of persons in the health region.[3] 

Section 33(4) outlines 4 examples of the types of powers including:

  • isolation;
  • report to a medical practitioner for an examination to determine if an individual is infected;
  • be placed under the care of a medical practitioner, or
  • generally take any action as to not expose another person to an infection.

Section 33(8) creates an obligation for individuals specified under the order to comply with its directions.  Failure to comply can result in the Medical Officer of Health seeking judicial enforcement.

Absent an order being issued, there is no legal requirement for an individual to isolate nor is there any enforcement mechanism by government to impose isolation. For example, on September 19, 2021, the information on the New Brunswick Coronavirus website stated that one must isolate if instructed by a doctor, which may make excellent public health policy, but it has no legal foundation.[4]  Unlike Medical Officers of Health, Public Health Inspectors do not have the authority to order individuals to self isolate as an isolation order respecting a Health Hazard is limited to a “a substance, thing or plant or animal other than a human”.

Further all Medical Officers of Health have a remedial power under s.61.2(1) to “take any reasonable action that is necessary to protect the health and well-being of the population of New Brunswick, including issuing public health advisories and bulletins” with the requirement that the Minister be notified of any action.


Administration

An order issued by a Medical Officer of Health is only effective if it outlines the reasons for the order. Except for emergency situations, there is a requirement for the order to be issued in writing to individuals which the order is directed at. Since New Brunswick has not had significant pandemics in recent memory, these forms of isolation orders have usually been issued to individuals rather than a group of individuals. In the context of COVID-19, issuing individual isolation orders is impractical from simply an administrative basis. However, nothing prevents a Medical Officer of Health from issuing an order to a class of individuals.

This is because the Interpretation Act under section 22 (h) states that “a word in the singular includes the plural, and a word in the plural includes the singular;”. Therefore an order issued to a person can also be issued to persons creating a class order. This also makes sense from a practical point of view given that the intent of an order is to prevent infections to persons in a health region. Being required to issue only individual orders frustrates the purpose of the act to protect public health in a timely manner.

There may be concerns regarding whether individuals who are directed by the order are appropriately informed of the order. This can be addressed by Cabinet via regulation 69(ss) which prescribes the manner in which an order, notice or document may be given or served.  In practice this means that Cabinet could state that a class order could be posted online.

What does this mean in practice?

My points outline that in theory, any Medical Officer of Health has significant powers to protect New Brunswicker including the imposition of mask wearing; however, there are practical considerations on whether a regional Medical Officer of Health or the Chief Medical Officer of Health should exercise public health powers on the general population absent clear legislative authority. This highlights that the Public Health Act requires amendments to provide clearer powers that can be imposed by the Chief Medical Officer of Health to apply across the Province.

Information Sharing: There are several sections of the Public Health Act which should be updated to provide better policy alignment with COVID-19. Information sharing is an important part of pandemic preparedness. Cabinet should amend the Reporting and Disease Regulation to mirror Prince Edward Island’s requirement that contains a mandatory reporting requirement to the federal government for the purposes of national disease surveillance. This would also help formalize a request to the federal government that there is automatic sharing of information of individuals subject to the federal Quarantine Act. This would ensure that provinces receive information of individuals arriving at Ports of Entry in an expeditious manner.


7.      Reports

        A person directed by the Chief Public Health Officer shall submit reports of notifiable diseases or conditions, with any further information as may be required, as directed by the Chief Public Health Officer and to the appropriate agencies of the Government of Canada for purposes of national disease surveillance. (EC560/13; 22/14) (NOTIFIABLE DISEASES AND CONDITIONS AND COMMUNICABLE DISEASES REGULATIONS

Information Sharing in Schools:

Section 29 of the Public Health Act requires the principal of a school or the operator of an early childhood learning facility to report certain diseases to Public Health. Presently, COVID-19 is not specified as a reportable condition under this section which may impact COVID-19 surveillance. Department of Education and Early Childcare Development material suggest that this may already be occurring without the clear legal authority to do so.[5] The Assembly may wish to include COVID-19 as a disease under this section.  Alternatively, Cabinet can amend the Reporting and Diseases Regulation to specify that COVID-19 is a reportable disease by a principal or operator. Whether it is included in statute or in the regulations would depend on the purpose of section 29 for the inclusion. Given this is still early days with the removal of most Public Health measures, having enhanced reporting would be a prudent measure. Some provinces have also imposed a reporting obligation on teachers in addition to principals.

Report by a principal or an operator

2017, c.42, s.30

29The principal of a school or the operator of an early learning and childcare facility who believes on reasonable grounds that a pupil in the school or a child in the facility, as the case may be, has or may have measles, meningitis, mumps, pertussis, rubella, an Escherichia coli infection or other diseases or conditions specified by the regulations shall report, in accordance with the regulations, to a Medical Officer of Health or a person designated by the Minister.

This would also be complementary to section 20 of the Education Act which allows a principal to exclude a student who has or may have COVID-19. Further clarity from the Department on how Principals are being instructed to use this power with respect to COVID-19 is warranted.


Acute communicable disease or acute communicable infestation

20(1)A principal may exclude from school property a pupil who is or is suspected to be affected with an acute communicable disease or an acute communicable infestation.

20(2)Where a pupil has been excluded from school property under this section, the principal may require the pupil to produce a medical certificate of freedom from contagion or infestation before allowing the pupil to return to school.

Closure Orders:

A health hazard by its definition cannot involve a human infected with a notifiable disease. Under s.6(4) of the Public Health Act, Medical Officers of Health and Inspectors are given wide authority to mitigate a health hazard including the closure of a premise where a health hazard may exist  There is an inconsistency under authority of a Medical Officer of Health when issuing an order respecting a notifiable disease whether it is more limited than a  order respecting a health hazard. For example a section 6(12) closure order could be effected on a premise that may be infected with a notifiable disease but not on persons within a premise who have a notifiable disease:

6(12)Nothing in Part III prevents the making of an order under this section in relation to a premises, substance, thing, plant or animal other than a human, a solid, liquid, gas or any combination of them, that is or may be infected with a notifiable disease or that is or may be contaminated with an agent of a notifiable disease, as the case may be.

It would be advisable to amend s.33(4) to include a reference that a Medical Officer of Health can order a particular premise to close to prevent the spread of a notifiable disease. A separate power could be conferred to the Chief Medical Officer of Health to impose closures on a class of premises. If there are either isolated or specific types of premises that warrant closure due to the risk of the transmission of COVID-19, Medical Officers of Health should be given that power.

Class Orders:

Although all Medical Officers of Health currently have the legal authority to issue orders to a class or group of individuals respecting a notifiable disease, they may not see themselves as having the legitimate legal authority to do so. As stated this does make sense when viewing the role of a Regional Medical Officer of Health normally relates to isolated or specific cases of a notifiable disease. The premise that the department must individually sign off on all isolation orders affecting a larger group of persons is an administrative inefficiency which poses a significant impact on New Brunswick’s response to a future large-scale outbreak.

In this manner, to provide legal clarity, it would be appropriate to amend the Public Health Act to confer a specific power to the Chief Medical Officer of Health or their designate to issue class orders to protect New Brunswickers. This is an appropriate power to assign to the Chief Medical Officer of Health given their elevated status and responsibility. This would mean that a Chief Medical Officer of Health would be able to issue isolation or other directives to individuals across the province who have COVID-19 or any other notifiable disease. Separately, this would also allow a Chief Medical Officer of Health to issue a class premise order if the prior recommendation were adopted. Cabinet should not be concerned with the use of this power as it is not a reduction of political oversight.The Chief Medical Officer of Health already has this power in theory and in practice, it merely reduces inefficiencies imposed by requiring individual signoff for isolation orders or other directectives.

Nova Scotia (s.33(3)) and Prince Edward Island (s.39(7.1) which have very similar Public Health laws have listed sections to allow for class orders. In the case of Prince Edward Island this power rests with the Chief Medical Officer of Health.

Mask Wearing:

All Medical Officers of Health presently have the authority to require individuals to wear masks. This power is premised on ss.33(4)(d) of the Public Health Act which authorizes an order “that the person conduct himself or herself in such a manner as not to expose another person to infection.” Mask wearing in a public setting is a measure premised that it is a basic measure designed to reduce the transmission of an airborne communicable disease. The requirement to wear masks in a given setting is a reasonable public health measure and not different than the authority under the Public Health Act to wear masks to limit risks to a health hazard or mask wearing under Occupational Health and Safety law. Using ss.33(4)(d) of the Public Health Act constrains the legal requirement to wear masks to only notifiable diseases rather than any communicable disease.  The Legislature could amend ss.33(4) to include a specific reference to medical officers of health issuing orders related  prophylactic measures designed to prevent the transmission of notifiable diseases

Mask wearing in schools

In a public school setting, the Education Act under s.6(b.2)(ii) confers upon the Minister of Education the power to make policies and guidelines related to the health and well-being of pupils and school personnel. Absent a Departmental policy to the contrary, there would be no legal impediment to require students and staff to continue to wear masks until otherwise determined by the Department. The absence of a specific Department of Public Health advisory or recommendation to wear masks in schools in general does not relieve School Districts or Schools from separate legal obligations to require masks if a risk assessment warrants. For example, New Brunswick’s Occupational Health and Safety Act imposes a legal obligation for an employer to take “every reasonable precaution to ensure the health and safety of his employees”.[6] Depending on a specific risk assessment, this may also include a requirement for employees in schools to wear masks which exceeds more general recommendations by Public Health.

Separately, Schools owe a Duty of Care to students to prevent injuries.[7] Whether the imposition of mask wearing for students in school reaches a standard of care required by law is beyond my current capacity to comment. From a strictly policy perspective,  it is awkward for schools to only require the masking of employees and not students who are under the care and supervision of the department.

Declaration of a Public Health Emergency

Multiple provinces have Public Health legislation to allow for a more targeted response to a pandemic. As previously discussed, the New Brunswick Government, without any legal basis  under the principles of statutory interpretation to support this view, has chosen to interpret the Emergency Measures Act as a Henry VIII enabling act which allows it to amend or dispense with any other provincial law. This has resulted in considerable distortions to both the rule of law and also has considerably weakened the authority of the Legislative Assembly, which should have been summoned to authorize new laws and to hold the Government to account.

The inclusion of a Public Health Emergency power with enumerated powers would ensure that all emergency orders authorized under the Act must be confined to addressing a public health matter. The dividing line between normal powers under the Public Health Act addressing a communicable or notifiable disease and the exercise of emergency powers must be linked to the scale of the emergency. Generally powers related to the quarantining or isolation of all persons entering New Brunswick would be an example of a power attributed to a Public Health Emergency declaration. Other examples could be to override normal laws or policies in place regarding the transfer of patients to long term care facilities without their consent. Other examples could be to confer civil immunity on specific classes of persons for the purpose of responding to the public health emergency, or to allow for emergency procurement of medical supplies.

Quebec or Newfoundland and Labrador have models which could be adopted by New Brunswick. In the case of Quebec, s.119 and s.122 of their Public Health Act provides for a role of the National Assembly to authorize and also revoke a Public Health Emergency. In the case of Newfoundland and Labrador, there are a series of enumerated powers under s.28 which grant the Chief Medical Officer of Health the ability to take action to protect the health of the public.

Political oversight and accountability vary in different provinces on the exercise of emergency powers. Quebec confers the general power to Cabinet or the Minister. This in a way mirrors the existing legislation in New Brunswick where Cabinet uses its regulation making powers. By contrast Saskatchewan confers this power exclusively to the Minister of Health. By contrast Newfoundland and Labrador and Nova Scotia give the power to the Chief Medical Officer of Health to recommend to the Minister of Health that a Public Health Emergency be declared subject to Ministerial approval. In the case of Newfoundland and Labrador, the Chief Medical Officer of Health can advice termination of the emergency or the Minister can simply allow an emergency to lapse after a period of 14 days. With Nova Scotia, the Minister can only terminate a public health emergency per s.53(3) on the recommendation of the Chief Medical Officer of Health.

Newfoundland and Labrador’s legislative structure represents an ideal balance between the authority of the Chief Medical Officer of Health to take increased actions to protect the population. It also ensures that the control of the state of emergency is subject to political accountability via the Minister of Health. Importantly, their Public Health and Promotion Act is subordinated in the event of a conflict to their more general Emergency Services Act if a state of emergency is declared.

For New Brunswick adopting the Newfoundland model with additional consideration for the requirement of approval of the Legislative Assembly for continual extension after a month of use would be recommended.  

Given the concerns related to the infringement of Canadians Charter Rights related to the ability to enter and remain in Canada, any Public Health Emergency power should not include the authority to restrict entry into New Brunswick but rather impose a quarantine or isolation requirement of those entering New Brunswick if circumstances warrant. Under Federalism, New Brunswick does not have the jurisdictional authority to restrict Canadians from entering Canada from the United States as international ports of entry fall under federal jurisdiction. Further, despite the Newfoundland Court case of Taylor v. Newfoundland and Labrador, it is legally tenuous for New Brunswick to contend it has the authority to ban interprovincial mobility when it does not have the authority to ban international mobility.[8] There is a logical inconsistency that non resident Canadian Citizens or other Canadians who chose to enter New Brunswick from an international Port of Entry have an elevated right to enter the province compared to Canadians who may live adjacent to New Brunswick but have significant cultural and economic ties. This would suggest that the implicit right of interprovincial mobility falls under a federal head of power on the basis of Citizenship. Effectively, the twin public health powers of quarantine and isolation are sufficient to manage future public health measures without the requirement of an outright prohibition of entry. The distinction between a right of entry at an international port of entry compared to an interprovincial point of entry was not argued in the Taylor case.


Ensuring proportionality of Public Health Orders or Public Health Emergency Orders to respect civil liberties.

 In 1998, the Public Health Act was amended to enhance Charter compliance with respect to enforcement provisions, especially in the context of isolation and detention.  To further respect the civil liberties of Canadians,  Orders which impact rights or freedoms must be no greater than is reasonably necessary to respond to a threat to Public Health. This ensures that the Government cannot use a Public Health Order for a non Public Health purpose similar to the use of the Public Health and Healthcare Emergency state of emergency to address unrelated public order matters pertaining to the Trucker convoy demonstration in Fredericton occurring in February 2022.

These enacted protections would require Government to justify the use of Public Health Emergency powers prior to their invocation. This would mirror Manitoba’s Public Health Act which places legal restrictions on the use of powers to ensure that the Government cannot use a Public Health Order for a non Public Health purpose.

S.3 If the exercise of a power under this Act restricts rights or freedoms, the restriction must be no greater than is reasonably necessary, in the circumstances, to respond to a health hazard, a communicable disease, a public health emergency or any other threat to public health.

Role of the Chief Medical Officer of Health

Under New Brunswick’s Public Health Act, the Chief Medical Officer of Health has limited defined additional authority to carry out actions in their responsibilities as the Chief Medical Officer of Health rather than simply as a Medical Officer of Health. The powers of the Chief Medical Officer of Health are enumerated under s.61 of the act and relate generally to advising the Minister about public health issues and issuing reports in their own capacity. They are free to issue any report they feel on a Public Health matter with the only restriction that they must provide a copy to the Minister of Health 30 days prior to the public release of the report.

Separately s.61.2 (1) confers a general authority of all Medical Officers of Health to undertake “any reasonable action that is necessary to protect the health and well-being of the population of New Brunswick.”  The use of this power does not dispense with any other power or duty conferred under the Public Health Act. Accordingly, I view this power as a remedial power designed to provide Medical Officers of Health legal authority to do things where there are legislative gaps in Public Health law.  In the context of notifiable diseases, Medical Officers of Health have existing legislative power under section 33(1) of the Act to “require a person to take or refrain from any action that is specified in the order in respect of a notifiable disease.” This is an entire statutory scheme that provides clear legislative authority and safeguards. Therefore section 61.2 would not be suitable to use related to notifiable diseases as there is existing authority under the Act.

As previously stated, although the law does confer powers to the Chief Medical Officer of Health to make certain directives or decisions, there is an organizational vagueness in the New Brunswick Public Health Act that does not provide guidance or administrative comfort should the Chief Medical Officer of Health exert such powers.

By contrast the Manitoba Public Health Act provides clear powers to oversee the work of other Medical Officers of health where the Chief Medical Officer of Health can revoke, or amend orders, or issue directives to subordinates on how to carry out their duties under the Act.

The Chief Medical Officer of Health is not an Officer of the Legislative Assembly. I do not see it as wise for the Chief Medical Officer of Health to have the same independence as a Legislative Officer as it would start to interfere in their role as an advisor to Government who is accountable to the Legislative Assembly through the Minister of Health.

General Obligation for Medical Officers of Health to act Independently and Impartially:

The Public Health Act should be amended to add a new subsection 59(4) to require, similar to Newfoundland & Labrador that:

 “A Medical Officer of Health shall exercise their powers and perform their duties impartially and independently in order to best protect and promote the health of the people in the province.

This would provide clarity that Medical Officers of Health are required to exercise their powers and duties solely from the lens of a Public Health perspective. This ensures that the Minister or Cabinet as required is responsible for deciding larger policy considerations as they are responsible to the Legislative Assembly.

Role of the Minister of Health

Since the enactment of the 1918 Health Act, there has been a gradual transfer of powers away from the Minister to Cabinet. The 1918 Act did authorize the Minister to make several decisions with the approval of Cabinet; however, the Minister did have specified duties that did not require Cabinet approval such as taking such steps they deem appropriate to suppress or prevent diseases.  or in the case of an epidemic take all necessary steps to prevent the recurrence of the disease.

Under the present act, the Minister has the authority under section 26.1 to declare a disease a notifiable disease which triggers various surveillance functions and confers certain powers to Medical Officers of Health.  Section 57 outlines that the Minister has the general authority to protect the health and well-being of the people of New Brunswick by any means however this power is more limited to policy setting.

Prince Edward Island for example confers an additional authority on the Minister of Health under section 3(1)(g) to:

 take such measures as the Minister considers necessary for the prevention, interception and suppression of notifiable diseases and conditions, communicable diseases and other problems affecting the health of the public.

The original 1918 Public Health Act conferred the power of the Minister of Health the power and duty to “take such steps as to the prevention and suppression of disease as he shall deem most effective and proper”. Further the Minister had the authority in the case of an actual or potential epidemic to “take control of the situation, and take all necessary steps to prevent as far as possible, the spread of the disease and its recurrence.  Cabinet had a separate authority to also manage epidemics including the restriction of movement of people between regions. It may be advisable to further clarify the Ministers powers to take steps to manage a notifiable disease.  Conferring additional authority to the Minister of Health would facilitate the Minister’s involvement in Public Health decisions if there is a need for political direction on matters that should not necessarily be elevated to matters requiring the attention of Cabinet.

For example, this could link back to the idea of a Public Health Emergency declaration under the Public Health Act where the Minister provides oversight and direction to the Chief Medical Officer of Health.

Enforcement:

Unlike the Emergency Measures Act, the Public Health Act places safeguards on when and how enforcement of Public Health Orders can occur. For example, a Medical Officer of Health has considerable powers of access and inspections; however, this power must be exercised only at reasonable times.[9] Further there are significant restrictions on when a Medical Officer of Health can enter a private residence where nonconsensual entry requires either a warrant or can only be exercised in an emergency situation. [10] Peace Officers are not assigned a lead enforcement role which is generally appropriate. However a Medical Officer of Health under s.43(5) can request the assistance of a Peace Officer to enforce the provisions of a Public Health Order. In my view it is unclear whether a Medical Officer of Health must be physically present at a location for a Peace Officer to provide assistance in this way.

Fines

A violation of an order of a Medical Officer of Health under section 52(3) is a Category E offence under the Provincial Offences Procedure Act where the fines for a first time offence is between $240 and $5,200 plus fees and surcharges. Consideration may be warranted as to whether this fine range is too low to promote compliance under the Act. To ensure compliance with the rule of law, any fine increase must occur via new legislation. If peace officers choose a ticketing procedure, they can only issue the minimum fine for the offence under section 14(5)(a) of the Provincial Offences Procedure Act.


Verification of Identification & documentation at checkpoints or place of residence to ensure compliance with quarantine or isolation orders.

Enforcement of the Public Health Act does not provide police or other peace officers under Public Safety the general authority to initiate certain verification measures. This is because section 43(1) enumerates the various powers afforded to Medical Officers of Health and Inspectors to ensure compliance with any provisions of the Act or an order made under it. This includes the authority to “b) make inspections, examinations, tests and inquiries;”. A Medical Officer of Health or inspector can under s.43(5) require the assistance of a peace officer when conducting enforcement. At Common Law public safety officers can only stop and detain individuals to request proof of travel registration or vaccination status without reasonable cause if they are assisting Public Health Officials to enforce an order by a Medical Officer of Health or Cabinet. Whether assistance should be interpreted to encompass province wide class orders likely exceeds the legislated intent under the act. Accordingly the Assembly should amend the Public Health Act to provide legislative clarity.

At Common Law, Peace Officers cannot stop individuals at random for the purposes of ensuring compliance. For example if the province were to enact a new travel registration scheme to demand identification for a peace officer, there must be reasonable grounds to do so. This is different to a situation under the Motor Vehicle Act where Peace Officers are specifically conferred a power to demand the production of a driver's license under section 15(1)(d) of the Act. Government may wish to provide a careful review of when Peace Officers should be afforded the ability to demand the production of documentation. A recommended approach may be to expressly authorize peace officers to demand identification or other requested documents at a specified checkpoint or place of residence, in the case of a class order for the purposes of Isolation or Quarantine compliance.

Order of court to detain, examine, or treat a person or an Emergency detention order by a Medical Officer of Health

These powers to allow for a court application, or in an emergency a direct order by a medical officer of health to detain an individual for violating an order respecting a Group I notifiable disease to isolate, seek medical assistance, or conduct themselves in a manner to avoid infecting another person should generally be left as is.

These are optional tools for a Public Health to ensure isolation of specified individuals who may have a disease and are generally ineffective to use in situations where a class order is utilized to ensure public health compliance.  These provisions were enacted in 1998 to provide better Charter compliance due to the specific impact on an individual’s  section 7 Charter right related to life, liberty and security of the person. Careful consideration must be given to the exercise of these powers as the rationale for their use must be premised on a public health basis compared to a law enforcement foundation for the Emergency Measures Act.

Ticketing and education are better public policy tools where these orders should be left at the discretion of a Medical Officer of Health. The authorization for a detention order is limited to the four enumerated categories  under s.36(1) by the Court or in an emergency situation, by a medical officer of health under s.41(1). This is a separate enforcement action compared to ticketing or laying a charge for non compliance related to an order of a Medical Officer of Health which has a wider application.

 


[2] 33(2)(c) of the Public Health Act

[3] 33(2)(a)(b)

[4] https://www2.gnb.ca/content/gnb/en/corporate/promo/covid-19/self_isolation.html  Individuals advised by Public Health or a physician, including confirmed cases of COVID-19, MUST isolate

[5] Guidelines for the Prevention and Control of Communicable Diseases in Early Learning and Childcare (ELC) Facilities, Department of Health, Public Health New Brunswick Department of Education and Early Childhood Development

[6] https://www.canlii.org/en/nb/laws/stat/snb-1983-c-o-0.2/latest/snb-1983-c-o-0.2.html#sec9subsec1

[7] Myers v. Peel County Board of Education, 1981 CanLII 27 (SCC), [1981] 2 SCR 21, <https://canlii.ca/t/1mjlh>, retrieved on 2022-04-04

[8] Taylor v. Newfoundland and Labrador, 2020 NLSC 125 (CanLII), <https://canlii.ca/t/j9p6v

[9] Section 43(2) Public Health Act New Brunswick.

[10] Section 43(3) Public Health Act New Brunswick

Saturday, 19 March 2022

The Legislative Assembly & Masking Wearing: The Public Galleries, Public Health & Parliamentary Privilege


A March 17 CBC New Brunswick News story reports that the Legislative Administration Committee (LAC) decided to continue restrictions on public attendance of Legislative Assembly proceedings. This is in part due to a decision to continue using the public galleries as an area to accommodate MLAs who choose to wear masks during the proceedings. Although the Legislative Administration Committee is the employer for employees who work in the Office of the Legislative Assembly and serves as the committee which oversees the administration of the Legislative Building, it does not have the legal authority to regulate or restrict access of MLAs to participate in a sitting of the legislative Assembly.]

Liberal Leader Roger Melanson said that part of the rationale in excluding the public is due to the current mask wearing rules which requires MLAs to wear masks on the floor of the Assembly but as CBC notes “ If they choose not to wear a mask, they have to sit upstairs in the public gallery, a space that's been used by some MLAs and ministers over the last two years to allow for distancing.” People’s Alliance Leader Kris Austin elaborated that the only exception for MLAs wearing masks while on the floor of the Assembly is if they are speaking during debate.


This requires a degree of clarification. Absent a decision of the Legislative Assembly, all mask wearing rules proposed by LAC for MLAs are merely voluntary guidelines and have no legal basis during a Parliamentary proceeding. As I said to the Telegraph Journal on October 26, 2021 in the context of requiring MLAs to be fully vaccinated to attend a sitting of the Legislative Assembly, Parliamentary Privilege confers the power to the Legislative Assembly to regulate their internal affairs: “MLAs have the privilege to be free from obstruction to attend a sitting of the House. And that individual right can only be overridden by the collective right of the Legislative Assembly to control its internal affairs.” Equally, a motion of the Legislative Assembly would be needed to require MLAs to wear masks in order to attend a sitting and only allow exemptions for removal when individuals are actively participating in debate.


An example I cite of MLAs imposing a restriction on who can attend and participate in legislative proceedings occurred in 1786 when the Assembly first met in Saint John. Under the Standing Rules at the time it was impermissible for MLAs to enter in the chamber or participate in debate while wearing a hat. Requiring an MLA to wear a mask to participate in a sitting is no different. LAC would not have the jurisdiction to prevent an MLA from accessing the House or participating within. Normal Public Health rules do not automatically apply to MLAs in the context of a parliamentary proceeding, it is for the Assembly to decide how to limit access to MLAs. In the absence of the Assembly itself making a decision, the exclusion of the public is an unfortunate incidental consequence to avoid infringing on the individual rights of MLAs.







This aspect of Parliamentary Privilege may be misunderstood by some resulting in confusion. The Supreme Court of Canada has recognized that Legislative Assemblies have the exclusive right to control access to the Public Galleries. This constitutional right to control their internal proceedings is not subject to the Charter as one element of the constitution cannot be used to override another. A common example is that the mandatory retirement of Senators at age 75 is exempt from s.15 Charter equality provisions related to discrimination on the basis of age. Further it is for the Speaker acting on behalf of the Assembly to determine whether the public can attend proceedings of the Assembly. Although it may seem contrary to modern democratic norms, the public has no right of access to attend a proceeding. The Assembly or LAC, via its delegated powers, can exclude public access to proceedings or the building for any reason. In this case the rationale is not necessarily in the name of public health but to ensure that the individual privileges of MLAs who choose not to wear masks in the House are not infringed.



Now there are several means to resolve this situation to protect MLAs by wearing masks and also allow for public access to the galleries that end in the same result: requiring MLAs to wear masks except for when activity participating in debate:


The motion: To require all MLAs to wear a mask while attending a proceeding of the Legislative Assembly or its committees with the exception of when speaking during debate.


Option 1: With Leave


With unanimous consent of all MLAs present, an MLA can move a mask motion without notice.

Option 2: A Government Motion


After 2 days notice, A member of the Government can move a mask wearing motion under Orders of the Day.


Option 3: An Opposition Members’ Motion


If required notice is provided an opposition can move a mask wearing motion during Opposition Members’ Business on Thursday.


Option 4: A Government Backbencher moving a motion

After the required notice, a Government Private Member can move a mask wearing motion during Orders of the Day subject to being called by the Government House Leader.


Based on the close confines of the Legislative Assembly chamber, it is understandable that despite the relaxation of Public Health Measures, that MLAs may wish to take additional temporary precautions. It would be strongly recommended that any mask wearing motion have a clear end date to prompt a reassessment. Absent a clear end date, a mask wearing motion will cease to have effect on prorogation which may occur in the Spring to accompany a new Speech from the Throne.


Presently there are no mask wearing ‘rules’ in the Assembly for MLAs participating during a Chamber proceeding, under Parliamentary law they are only voluntary. There are presently no restrictions or consequences for those MLAs who choose not to wear a mask. MLAs who wish to ensure additional steps are taken to protect themselves and employees of the Legislative Assembly should strongly pass a motion to require the wearing of masks during a sitting of the Legislative Assembly or its Committees. By doing so, it would then allow for members of the public to once again return to the ‘People’s House”.


Wednesday, 26 January 2022

The Law vs a Press Release: Are political gatherings banned under the Mandatory Order?

The Law vs a Press Release: Are political gatherings banned under the Mandatory Order?

The ticketing of a counter protester at an anti vaccination rally last weekend in Fredericton serves as an opportunity to discuss why the Mandatory Order under the Emergency Measures Act is not an ideal tool by government to respond to the covid-19 pandemic. The Mandatory Order bypasses the normal government policy development processes creating both vagueness and drafting errors. Vague laws are a friend to no one. They do not assist police officers in the enforcement of the law and they also impact citizens who are trying to understand their legal obligations. The discrepancy between the Mandatory Order and the government’s own press releases raises confusion as to whether political gatherings are banned under the level 3 winter plan. A review of the Mandatory Order clearly states that political gatherings are lawful activities. Accordingly there should be no tickets issued for merely participating at a political gathering.

Source of the Mandatory Order

Unlike the Covid-19 Regulations under the Public Health Act, the Mandatory Order is not formally approved by Cabinet. Although Cabinet may be involved in the policy implementation of a Mandatory Order, pursuant to section 12 of the Emergency Measures Act, the Minister of Public Safety has the sole legal authority to issue a Mandatory Order. Since March 2020, this unconventional policy process has resulted in a series of drafting errors or policy overreaches.[1] I have written before that the doubling of fines from $240 to $480 has no basis in law. 

Almost 2 years into the pandemic, New Brunswick remains the sole maritime province using its Emergency Measures Act as the primary source of public health rules. This is problematic as it creates a policy disconnect between guidelines outlined by Public Health and the Mandatory Order as drafted by Public Safety. Based on the current Mandatory Order, it is not reasonable to state that political gatherings are prohibited under level 3 Public Health restrictions. However, the Public Health guidelines state that all gatherings are prohibited. This ambiguity highlights that Cabinet as a whole and the Minister of Health, as the Minister responsible for the Public Health Act, should strongly consider reasserting their respective legislative authorities by transferring all public health powers to the Public Health Act and terminating the state of of emergency to ensure integrity of the rule of law.

.

The January 22, 2022 Protest

On January 20, 2022 Fredericton police issued the following statement ahead of the demonstration:

During the protest at city hall, an individual engaging in a counter protest was formally issued a ticket for “failure to comply with direction, order or requirement” under s.24(1)(b) of the Emergency Measures Act”. [2]

This is the prescribed wording as the Provincial Offences Procedure Act does not allow for increased detail on the exact offence alleged to have been committed. Separately, I note that the fine amount issued is in non compliance with the Provincial Offences Procedure Act.  However a video of the interaction between the individual and the police was posted online. The police apparently issued a ticket that the individual “is in contravention of the order to not assemble.[3] I will not discuss the factual circumstances as to why a particular individual was ticketed but rather the conflicting messaging on what is permitted by law and what is outlined in communications products on whether it is an offence to be assembled for a political gathering.

Public Health Communications

If you are basing your view on what are permitted level 3 activities on Public Health guidelines,  you can reasonably assume that political gatherings such as a demonstration are prohibited due to the following point in the January 13, 2022 news release:

  • Public gatherings are not permitted, and gyms, entertainment centres, spas and salons are not allowed to operate.[4]

Further the alert level webpage has similar information:

The legal rule under the Mandatory Order

An examination of paragraph 7 of the Mandatory Order contradicts the stated general prohibition on all gatherings outlined by Public Health.

In this situation, the drafters of the order chose to be specific in defining what is a gathering: it "implies common intent or purpose associated with dining, socializing, celebration, ceremony, entertainment or recreation".  Although a political activity may involve some socializing, it is not its common intent. By the very definition in the Order, it suggests that a political gathering is a permitted and lawful activity. This would make sense as political speech and the corresponding right to peaceful assembly under the Charter have an elevated constitutional status compared to a gathering associated with dining to enjoy maple curry chicken penne.

The point is that no matter how distasteful or controversial the views expressed by the demonstrators are, within certain limits, the mere fact that they are assembled at city hall itself does not make this outdoor gathering unlawful under the Mandatory Order.  Similarly if someone wishes to peacefully engage in a counter protest, that is their constitutionally protected right which is not affected by the Mandatory Order.

Mask Wearing: A clearly defined Public Health restriction

Some individuals who were present at the political gathering may be in violation of the Mandatory Order if they are within 2m of another person outside their household bubble under paragraph 27.

This is a reasonable limitation on an individual’s right to peaceful assembly. There is a strong nexus related to mask wearing and mitigating the impacts of transmission of COVD-19. When rephrasing the situation from one of constitutional rights to one of simply non compliance with sensible public health rules,  the lack of compliance and also enforcement of this rule can raise a certain degree of frustration by many.. Most people adhere to the public health rules as a function of civic duty. The right to peaceful assembly does not confer the right to be free from consequences. Presently, refusing to wear a mask is a form of civil disobedience which means that there must be a corresponding consequence.  In this manner, the Charter right of peaceful assembly can be easily distinguished from Public Health rules. Wearing a mask to protect public health is a minimal impairment of a right.

Discussion

This disconnect between the legal text of the Mandatory Order and the Public Health press release raises questions:

  1. Did the drafters intend to ban political gatherings and the Mandator Order contains a drafting error? or,
  2. Are Public Health and law enforcement misinterpreting the drafter’s intent regarding gathering restrictions?

Government intended to ban political gatherings?

If this is a drafting error and government wishes to prohibit all political activities, it is concerning. The right to peaceful assembly is a constitutionally protected right. There is a high bar to meet before banning all aspects of political gatherings. There may be valid pubic health reasons to ban political gatherings, it should be a measure of last resort.  If Cabinet intended to ban all forms of outdoor political gatherings, then government has an obligation to provide this clarity and to indicate why a less rights infringing measure such as mask wearing is insufficient.

Nova Scotia Precedent

Last summer, the Nova Scotia government was granted an injunction that prohibited all gatherings including political assembly in response to anti covid restriction rallys[5]. The wording of the injunction order in Nova Scotia is clearer than New Brunswick by creating a general prohibition to all gatherings and then listing exceptions to the general rule. The injunction bans all illegal public gatherings and then defines an “illegal public gathering” by linking back to the Public Health Order.

Further the definition of an illegal public gathering is as follows.[6]

The Canadian Civil Liberties Association urged the Nova Scotia government to lift the injunction as they viewed it as a demonstrably unjustifiable limit on constitutional rights.[7] On June 18, the Nova Scotia government asked the Court to withdraw the injunction, which the Court subsequently granted.[8]

Statutory Interpretation

A function of statutory interpretation is that the law speaks for itself. Words are given specific legal meaning. As a result, adding specific definitions to what is a gathering restricts the general plan meaning.

A prior example of this occurrence is when Cabinet promptly corrected a drafting error in the original September 17, 2021 COVID-19 Preventative Measures Regulation under the Public Health Act.  The original regulation contained the following description of certain businesses which require proof of vaccination or medical exemption as part of the government’s vaccination mandate.

3(2) (f) organized group recreational sports, classes and activities like pottery and art that are held or provided indoors;[9]

On September 21, the regulation was amended to delete the following:

3(2) (f) organized group recreational sports, classes and activities like pottery and art that are held or provided indoors;[10]

The reason why “like pottery and art” were deleted is because it narrowed the interpretive scope of what types of activities would be subject to a vaccination mandate. Under the narrowed scope, a group indoor activity such as cooking would not fall under the the vaccination mandate.

A historical example of a simplified ban was the October 1918 proclamation banning all public meetings during the Spanish flu outbreak in New Brunswick where “all public meetings are prohibited”:

If the Mandatory Order was drafted in a manner similar to the original 1918 Public Health order or the Nova Scotia injunction,  then it would confer the police a clear power to issue a ticket for an unlawful assembly.

Retroactive fix?

The issue through statutory interpretation is that the drafters limited the interpretative scope of the Mandatory Order. Accordingly, even if the Mandatory Order is updated to ban political gatherings, anyone presently ticketed for unlawful assembly has a strong argument to make that their tickets are invalid as they would be a breach of their s.11(g) charter right against retroactive offences. Effectively there was not a valid prohibition of political gatherings under the order, therefore there was no offence. If government decides to clarify the order, it cannot have a retroactive effect in relation to quasi criminal offences.

Public Health and Law Enforcement are misinterpreting the Order?

The alternative explanation is that there is a disconnect between the drafters in Public Safety and Public Health / Cabinet. The language of the Order suggest that government did not ban political gatherings. If this is the case, then the communication products by Public Health need to be updated or a clarification issued that political gatherings are allowed. Failure to clarify creates the impression that there is a violation of the law when in fact there is none. This also impacts the academic discussion of Charter rights if in fact the Order created an exception for political gatherings but that exception has not been communicated to the public.[11]

Further, if government is allowing political gatherings, what training is provided to peace officers on the rules created under the Mandatory Order? Individuals, regardless of their view of the government’s public health policies should not be ticketed for an unlawful assembly, if the assembly is in fact lawful.

General Points: What is the law and the rule of law?

Police officers should not be ticketing people with an offence of unlawful assembly under the Mandatory Order if the Mandatory Order itself does not prohibit political gatherings. In this manner, it is similar to the removal of tents on the lawn of the Legislative Assembly where the Speaker of the New Brunswick Legislative Assembly erroneously claimed a legal power to do so when none existed.[12]

States of Emergency represent an uncomfortable tension in the rule of law as society is no longer governed by the normal processes of passing bills or even regulations. Simply put, the Mandatory Order is a legal document and should not be written in an ambiguous manner or be in contradiction to press releases. People are tired. Confusion over what the law is rather than whether the law is appropriate creates the potential for misunderstanding.

I support the government’s efforts to mitigate the impact of Covid-19 on New Brunswickers. However it strongly needs to revise its drafting protocols for the Mandatory Order. These drafting errors create confusion over what the law is. Legal words have specific meaning which take priority over any government communication products. New Brunswick should return to using the Public Health Act as the primary mechanism to manage COVID-19. There are few measures in the Mandatory Order that cannot be enacted through the normal regulatory processes. If government needs additional tools, then it simply can ask the Legislative Assembly for them. The main thing is that this creates a series of extra checks and oversight on government decision making which is good.

If I as a constitutional lawyer cannot tell you whether the government intended to ban political gatherings but did not due to a drafting error, it is a sign that greater clarity and precision by the Public Safety drafters are needed.


[1]An example of a drafting error occurred after a draft order would have accidentally given police the power to remove people from their houses for repeated violations of the Mandatory Order as Public Safety did not include an exception for a “dwelling house” https://www.cbc.ca/news/canada/new-brunswick/covid-19-new-brunswick-mandatory-order-thanksgiving-circuit-breaker-vaccination-1.6204578