Prime Minister Justin Trudeau speaks at a press conference about COVID-19 in front of his residence at Rideau Cottage on the grounds of Rideau Hall in Ottawa, on Sunday, March 22, 2020.
Health care workers speak with patients at a drive-thru Covid-19 assessment center in London, Ontario, on March 17, 2020.
Is it time for the federal government to invoke the Emergencies Act to help thwart COVID-19’s march across Canada, public health experts say. The question is, what would the government do with it?
Nova Scotia on Sunday became the latest province to declare a public state of emergency, tightening its borders, limiting gatherings to no more than five people and handing police the power to fine individuals who breach the “stay two-metres-apart” social distancing edict $1,000.
On Saturday, the Northwest Territories shut its borders to those from outside the territory, with some exceptions, after reporting the first known case of COVID-19 in the North.
Prime Minister Justin Trudeau Sunday said the federal Emergencies Act “is a significant step that can and should be taken when we’ve exhausted all other steps.”
Some say the country is reaching a tipping point and the pressure on the government to declare a federal emergency will only mount. “I don’t see how they can avoid this,” said Pierre-Gerlier Forest, director of the School of Public Policy at the University of Calgary and a former director of the Institute for Health and Social Policy at Johns Hopkins University.
On Sunday, Rona Ambrose called on Trudeau to declare a state of emergency. “Tell us to shelter in place, except for essential workers. We will not view it as an assault on our civil liberties, we will see it as (an) assault on COVID-19,” the former interim Tory party leader said in a tweet, prompting several to respond that such a declaration would only further spook Canadians and the markets and would indeed be an assault on civil liberties.
The law would usually come into play when a provincial system is overwhelmed and no other law can achieve the same end, said Dr. Ross Upshur, a University of Toronto academic physician and bioethicist. “There is nothing to suggest that any province is anywhere close to overwhelmed or cannot act within their own emergency and public health laws,” Upshur said in an email.
Previously known as the War Measures Act, the Emergencies Act gives the government exceptional powers, including the ability to restrict travel to, from or within any specified area within the country, acquire private property and impose fines for any one who contravenes any order or regulation made under the act.
It would also provide for more sweeping quarantine powers than those granted under the federal Quarantine Act, which applies only to international travellers or other people at an “entry or departure point” who might have an infectious disease.
But Forest said invoking the Emergencies Act could also allow for more extensive data sharing, including tracing data using smartphone location data. The Washington Post reported last week that the U.S. government is in talks with Facebook, Google and other tech companies about using location data gleaned from mobile phones, including whether people are keeping a safe distance, raising serious questions around privacy. Israel’s government has already approved emergency measures to track people suspected, or confirmed to be infected by monitoring their cellphones, and a mobile-phone based “electronic fence” to keep people quarantined in their homes is one of the measures behind Taiwan’s lauded success in controlling the novel coronavirus.
“There is a lot of pressure on the ground at this moment for tracing purposes if we were able to access the data that not only the carrier but some of the private sector owns,” said Forest, who said he is hearing that some provinces and public health authorities are already trying to negotiate separate deals. “It will be so much better if it was done at a national level.”
“If I were able to have access to your cellphone I will be able to know who you have seen,” he said. “So, if you’re on the isolation list I could know if you had continued meeting people. Or if you’re a confirmed case I could trace by your GPS history where you have been and who you have seen.”
A friend sent him a tweet this morning from a man in isolation in Taiwan. The battery in his cellphone died. The police were knocking on his door within minutes. “They are geo-localizing people that are in isolation and therefore they know if it’s being respected,” Forest said.
“If we need to move there, we will need the capacity to do it.” The emergency act, he said, would likely supersede privacy acts.
Invoking a federal emergency would also lead to more cohesion and consistency in messaging, Forest said. Nova Scotia is limiting gatherings to no more than five people; Quebec initially banned gatherings of more than 250. Germany announced Sunday that is banning gatherings of more than two. Ontario is warning people they could face fines of $750 if they defy “expert advice” to limit gatherings to 50 or less.
“It can’t be 10 in Calgary and 50 in Saskatoon and five in Montreal. If this is based on evidence the evidence is the same, everywhere,” Forest said.
He’s also concerned about interprovincial travel. The Emergencies Act on this one is absolutely transparent; it would give the federal government the power to govern interprovincial travel and trade. “It shouldn’t be the provinces doing it on their terms,” Forest said. “We should have uniform rules that say if there are restrictions they are the same, from coast to coast to coast. And if there are no restrictions, the provinces cannot be allowed” to impose their own, he said.
Anxiety seems to be increasing. More than 280,000 people used a federal government COVID-19 self-assessment tool in the first 12 hours after it was launched this weekend.
Federal Health Minister Patty Hajdu warned there could be criminal penalties coming for travellers, including people coming back from March break or snowbirds returning home, who refuse to self isolate.
“When we say you must stay at home for 14 days that means you stay at home for 14 days. You do not stop for groceries. You do not go visit your neighbours or friends, you rest in your house for 14 day, no exceptions.”
Hajdu suggested the government could invoke emergency powers depending how well Canadian are obeying guidance from public health officials. Under its earlier iteration, the War Measures Act was invoked during both world wars and the October Crisis in 1970.
“There is absolutely no threshold for the severity of an emergency, there is no bright line between what’s an emergency and what’s a nuisance, as it were,” said Amir Attaran, a professor of law and medicine at the University of Ottawa. “Cabinet has the authority to invoke it. All it needs is to consult the provinces. It’s easy, it’s quick.”
It’s also obviously politically weighty, he added. “I’m not trying to say it doesn’t have a political dimension that’s complicated, of course it does,” he said.
But the federal Quarantine Act is “incredibly limited,” Attaran said. “Obviously we are faced with an international emergency. The provinces have some quarantine powers, will they use them in the way that is optimal? If you let 10 provinces run free on this you run the risk of one or two or three of them doing it badly. And that probably is reason enough to invoke federal powers.”
Copyright Postmedia Network Inc., 2020