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Legal Framework Amid Covid-19 Fears, Part 2

As we enter phase 2 of the British Columbia government’s announced “restart plan,” to gradually re-open businesses and ease restrictions, it is interesting to think about what legal authority is being used to make temporary emergency based legal changes amid COVID 19.

Last week, we looked at B.C.’s Emergency Program Act  (EPA).  This week, we look at the B.C. the Public Health Act (PHA).

On March 17, 2020, before the state of emergency was declared under the EPA, Dr. Bonnie Henry, the Provincial Health Officer, declared a public health emergency under Part 5 of the PHA. 

During such an emergency, the PHA allows the Minister of Health, public health officials and others to take certain actions, including gathering information, conducting inspections and issuing certain orders.

The powers under Part 5 of the PHA arise in relation to an event that poses “an immediate and significant risk to public health”, either in a localized area or “throughout” a region or the province.

Section 52(2) prohibits the emergency powers from being exercised throughout the province unless the Provincial Health Officer provides notice that she reasonably believes at least two of the following conditions exist: 

  1. the event could have a serious impact on public health;
  2. the event is unusual or unexpected;
  3. there is a significant risk of the spread of an infectious agent or a hazardous agent;
  4. there is a significant risk of travel or trade restrictions as a result of the regional event.

Once a public health emergency is declared, the Provincial Health Officer may issue orders orally that are immediately effective.

Since then, the Provincial Health Officer has made numerous oral declarations. The Ministry of Health did not respond to questions about the oral orders.  

In the case of an immediate and significant risk to public health throughout a region or the province, the authority to act under Part 5 of the PHA ends when the provincial health officer provides notice that the emergency has passed. 

A declaration of an emergency, or a public health emergency, does not automatically suspend the Canadian Charter of Rights and Freedoms.  People’s rights under the Charter remain intact.

Even during a pandemic – and some may say especially during times of fear - governments across Canada, including ministers, public health officers and their staff must comply with the Charter. A government that infringes a Charter right may attempt to justify that infringement under section 1 of the Charter.

Section 1 allows our rights to be infringed where to do so is "demonstrably justified in a free and democratic society."  The onus to establish this rests on the government.  This includes demonstrating that the measure taken was carefully tailored to its objectives and impaired the right no more than was reasonably necessary.  

If you are interested in reading about actions taken by various governments across Canada in response to covid-19, the law firm of McCarthy Tetrault’s website is a treasure trove of information. 

Many believe that the Provincial Health Officer’s prompt response to corona virus concerns was appropriate and has resulted in a positive outcome. Some question the response.  In most of the province, very few active cases remain and restrictions are being lifted.  Whether skeptical or not, most B.C. residents have fortunately followed the government’s advice and are now looking forward to returning to a more normal lifestyle, at least for now.

This is a slightly modified version of an article that appeared in the Kelowna Capital News and other online publications on or about May 23, 2020. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances.  We may be reached through our website at inspirelaw.ca