Extraordinary times can call for extraordinary measures.
Public officials in Alberta and beyond are reaching deep into their toolboxes to find ways to stop the rapid spread of coronavirus during the global pandemic of deadly COVID-19.
Among the tools at their disposal is declaring a state of emergency. Pushing the large, red emergency button gives governments, public health officials and doctors temporary powers they wouldn’t usually have to help prevent a crisis from escalating.
Some of those powers also infringe on individual liberties.
“It’s important that the government have these sweeping public health powers in place so that when a situation unfolds quickly as is happening right now, the government has the ability to take aggressive and decisive steps to stop that public health emergency from becoming worse,” said Lorian Hardcastle, a Calgary health law and policy expert.
However, society expects the government to exercise power with restraint and based on evidence, said Hardcastle, an assistant professor in University of Calgary’s faculty of law.
The Alberta government has two pieces of legislation that give them extra powers during a health crisis, one of which cabinet has used so far.
Public health emergency
On March 17, cabinet declared a public health emergency in the province. It’s the first time anyone with Alberta Health can recall the government declaring a public health emergency under the Public Health Act, spokesperson Tom McMillan said on Thursday.
Cabinet has already used that power to prohibit gatherings of more than 15 people and require people returning from outside the country remain isolated at home for 14 days.
Upon the advice of chief medical officer of health Dr. Deena Hinshaw, the government has also ordered school and post-secondary classes cancelled indefinitely and most child-care centres closed.
With advice from Hinshaw, the Public Health Act gives special, temporary powers to the government and the health minister for 90 days, and possibly longer. They include:
- Cabinet ministers can suspend part or all of any provincial legislation that’s not in the public interest
- The health minister can acquire or use any property he needs to respond to the emergency
- The health minister can conscript people into service to respond to the emergency — for instance, telling retired health-care workers to come back on the job
- The minister can authorize entry into any building or land necessary
The government is responsible for covering the cost of any damage they do to property seized to respond to the pandemic.
Employers can’t fire or discriminate against any workers required to stay in isolation during an outbreak or conscripted into duty by the government.
Health-care workers volunteer to return to front lines
Alberta Health Services spokesperson Kerry Williamson said Friday the health authority has cancelled “a few” staff vacations so health-care workers could fill in for their colleagues who had to isolate at home.
About 400 retired nurses, licensed practical nurses and respiratory therapists have contacted AHS volunteering to return to work to help with the crisis, Williamson said. None have been conscripted into action.
The College of Physicians and Surgeons of Alberta also contacted nearly 300 doctors who have retired within the past two years to see if any will voluntarily return to service, said college spokesperson Jessica McPhee on Friday.
During an epidemic, the government can also:
- Order a hospital to provide quarantine facilities
- Order owners of other buildings (such as a hotel, or a recreation centre) to provide accommodations for people in isolation or quarantine
- Order any public place to close
- Postpone a provincial or senate election for up to three months
- Order people to be immunized against the disease
For “recalcitrant patients,” a medical health officer can also order a peace officer to apprehend a person believed to be ill for testing, treatment or isolation. A patient can appeal their detention to the Court of Queen’s Bench.
Alberta Health Services (AHS) can also declare a public health emergency, but it hasn’t, to date. If it did, AHS medical health officers have the power to take whatever steps are “necessary in order to lessen the impact” of the crisis.
The health region’s medical health officer can enter places without a warrant to investigate the outbreak and force a person into isolation or quarantine.
People can also face penalties of up to $5,000 for failing to comply with any part of the Public Health Act.
Powers during a provincial state of emergency
On Wednesday, Premier Jason Kenney said he saw no need at that point to declare a general provincial state of emergency.
The Emergency Management Act gives cabinet the power to declare a state of emergency in part or all of the province for up to 90 days in the case of a pandemic.
Pulling the trigger would give the minister of municipal affairs the authority to:
- Acquire or use any property needed to respond to the emergency
- Control or prohibit travel to or from any part of Alberta
- Require qualified people to render aid where needed
- Distribute essential supplies across the province where needed
- Order evacuation of people or livestock
- Authorize entry into any building
- Fix prices for food, clothing, fuel equipment, medical supplies or other essential items
- Conscript workers needed to respond to an emergency
The government must also pay for any property it damages.
The Alberta government has twice declared a provincial state of emergency using the act — in the 2013 floods in southern Alberta and during the 2016 Fort McMurray wildfire.
Those who violate the act could be fined up to $10,000, sentenced to jail for up to a year, or both.
B.C., Saskatchewan, Ontario, Manitoba, Nova Scotia and New Brunswick have all declared provincial states of emergency in response to COVID-19.
Kara Smyth, a Calgary lawyer and partner with national firm McCarthy Tetrault, said Friday that emergency legislation differs between provinces. Alberta’s Public Health Act gives cabinet and the chief medical officer of health broad powers to take whatever steps are necessary to halt epidemics.
Hardcastle said the Alberta government may yet declare a general state of emergency to control movement into and out of the province should infection rates rise rapidly in Alberta or in neighbouring provinces.
Should the pandemic prompt disruptions to the supply chain of food and other goods, the government may also consider invoking an emergency so sellers can’t price gouge consumers for essential products, Hardcastle said.
If the government needs to conscript skilled people other than health-care workers into service, that may also prompt an emergency declaration, she said.
Although far-reaching, these emergency powers aren’t absolute.
Restricting people’s freedom of movement could violate Canadian charter rights, as could conscripting workers into service, said Myrna Tuttle, a research associate at the Alberta Civil Liberties Research Centre at the University of Calgary.
“We should ask ourselves if the restriction is justified on any of the permissible grounds, for example to protect national security, public order, [or] public health,” she said in a Friday email.