Legally Speaking: By what right can ‘The Government’ do that?

by Daniel Romano, BCL, LL.B., MA, Leila Sadeg, LL.B.,

“To isolate the sick is ‘quarantine’, to isolate the healthy is ‘tyranny’!” This is a refrain that we hear with increasing frequency, especially south of our border. The counterbalance is the claim that the government has not done enough and should do even more to stem the spread of the COVID-19.

Where you stand on this spectrum is a question of opinion. Asking by what right the government can dictate restrictions is a question of law. Can the government order businesses to close and stipulate when they shall re-open, possibly exposing them to bankruptcy in the process?

Can they forbid you from visiting your elderly relatives or for those so unfortunate – attending your own mother’s funeral? Whether the government ‘should’ or ‘should not’ dictate such rules without the oversight of legislature is not the question here. What we are asking is simply whether it can legally do so.

At the municipal level, people across Canada have been receiving fines of $1,500 and over for formerly innocuous activities such as walking in the park, having friends over for a BBQ, playing soccer, or just standing “too close” to someone. In and around Montreal, some mayors have adopted the chilling tactic of encouraging their constituents to ‘rat-out’ their neighbours if they see anyone breaking the lockdown order. But no legislature passed these restrictive laws. How can the municipality authorize such extreme policing?

In Quebec, the answer lies in the Civil Protection Act of 2001. Therein, the Province empowered its municipal authorities to act in compliance with the provincial authorities to protect persons and property against disasters, such as earthquakes, floods, or even a pandemic. The local municipalities can declare a state of emergency in all or part of its territory for a period of up to five days. With the authorization of the province, this period of five days can be extended as often as necessary.

Once a disaster is declared, municipal authorities can stipulate pretty much any rules they wish without formality or any kind of legislative process. Essentially, the municipalities can do this because the province gave them the power to do so back in 2001.

If the municipality was empowered by the province, then who empowered the province to act in such a manner? The province empowered itself through that same Act, and through the Public Health Act, also of 2001. By these two acts the provincial government gave itself and its municipalities the powers to write de facto laws and create new penalties without the approval nor oversight of a legislature. The province can dictate new rules, restrictions or fines as it sees fit.

This is similar to how ancient Rome would react to a military threat.

A magistrate would be nominated as the “Dictator” and could rule more efficiently for a specified period of time in order to address the danger. The belief is that in the case of a war, disaster, or health emergency, a quick response is necessary, so the government can order any measure without formality. In Quebec, only the declaration of the emergency requires a formal vote.

The Government of Quebec declared a provincial public health emergency March 13 and has been renewing this declaration every ten days since. This declaration and the two laws cited above give the government the power to act without immediate oversight, to rule by dictate – for our health and protection, of course. Interestingly, when these two laws were passed in 2001, they were accepted without objection and little or no debate. It seems to have been a given that government can adopt drastic measures when the public health is concerned.

At the federal level, the government has some strong but strictly defined powers provided under the Quarantine Act of 2005. These allow the federal authorities to issue fines and stipulate that travellers can be screened, examined, and assessed medically so as to prevent the introduction and spread of disease. Things got more interesting at the end of March when the Liberal government convinced all the other federal parties to allow it to rule by decree (dictate) until the end of September. Only one parliamentarian, Conservative Scott Reid, against the orders of his own party, stood up and fought against this. He referred to the legislation as a “Henry VIII Bill” for allowing the executive to function without the approval of Parliament.

Where do the courts stand in all this? We do not know. This is an unprecedented situation and there is no jurisprudence to guide us in how to interpret these benchmarks during a pandemic. The constitutional test provided to us many years ago by the Supreme Court of Canada asks: “Is the measure necessary and proportional?” This test, however, is applied after the fact, and only if a Plaintiff challenges an action on the part of the government. This takes time and money.

In summary: Can our government act as a dictatorship? For now, the answer is ‘yes’. Why can they? Because they have given themselves the power to do so. Should they be able to do so? That is for each of you to decide, and we would be interested in your thoughts on this.

Daniel Romano and Leila Sadeg are attorneys with KALMAN SAMUELS, a family law firm. We invite you to follow us in the next issue of the Senior Times.

Dear Reader, these articles are published in order to provide you with some general information about interesting legal topics and not as a legal opinion. Please do not try to hold the author, KALMAN SAMUELS – Attorneys, or The Senior Times liable for any consequences arising from any attempts to rely on this material. If you need a legal opinion for a specific matter, we recommend that you consult with a qualified attorney.


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