COVID-19: Can They Do That? Part IX: Enforcement Of Emergency Measures

This update is part of a continuing series. We are providing a brief overview of the current state of federal and provincial emergency legislation, how our governments are using (and could eventually use) their statutory powers to confront COVID-19. We are also canvassing some of the constitutional constraints on government action and police's limits on carrying out enforcement actions.

Violations of orders issued under provincial public health or emergency legislation can entail significant penalties, including substantial fines for individuals and corporations and incarceration for individuals. However, police may not interfere with individual liberties more than what is reasonably required to fulfill their duties.

In this update, we canvass some of the specific enforcement powers available to the provinces in relation to their public health and emergency orders. Click below to jump to a specific province or territory:

Alberta British Columbia Manitoba New Brunswick Newfoundland and Labrador Northwest Territories Nova Scotia Nunavut Ontario Prince Edward Island Québec Saskatchewan Yukon For our past updates, and for up-to-date information on COVID-19 and McCarthy Tétrault's perspective on the legal issues it presents, please visit our dedicated hub here.

The information in this update is current as of April 7, 2020.

Principles regarding police powers

Most duties of police officers are defined by legislation. Some police duties exist at common law. Police may interfere with individual liberty where doing so is "reasonably necessary for the fulfilment" of one of their statutory or common law duties (R. v. Fleming, 2019 SCC 45, at para. 47; see also R. v. Waterfield, [1963] 3 All E.R. 659). This principle is known as the "ancillary powers doctrine".

For a police action to constitute a lawful exercise of an ancillary power, the police action must: (1) "fall within the general scope of a statutory or common law police duty"; and (2) "involve a justifiable exercise of police powers associated with that duty" (Fleming, supra, at para. 46).

Whether police action is justifiable depends on its necessity, the reasonableness of the interference with an individual's liberty, and the importance of the public purpose served by the interference (see Dedman v. The Queen, [1985] 2 S.C.R. 2, at p. 35). For example, the ancillary powers doctrine is what gives police their authority to undertake the following acts:

stop vehicles and ask for an individual's licence and registration, because the infringement on individual liberty is relatively minor and highway safety is of significant public importance (see Dedman, supra); enter a home in response to a 9-1-1 call which was dropped before an emergency, in light of the importance of protecting human life and safety (see v. Godoy, [1999] 1 S.C.R. 311); and conduct searches on arrest, where the police have reasonable suspicion that the search may reveal a threat to the safety of the police or the public (see Cloutier v. Langlois, [1990] 1 S.C.R. 158). Conversely, the ancillary powers doctrine does not authorize police to arrest someone who is acting lawfully in order to prevent an anticipated breach of the peace (see Fleming, supra).

In all cases, police authority is limited to actions that are reasonably necessary to fulfill the duties prescribed by provincial, territorial, or federal legislation (including orders made under their respective emergency and public health acts) or falling within the general scope of common law police duties to preserve the peace, prevent crime, and protect life and property.

Given the paramount importance of protecting human health, life, and safety during the COVID-19 pandemic, and the breadth of provincial and territorial public health and emergency powers now in use across the country, it is likely that police have authority to take significant enforcement actions ranging from dispersing gatherings to the right of arrest.

However, when carrying out enforcement actions, police cannot interfere with individual liberty more than is "reasonably required" (Fleming, supra). For example, if a police officer can ensure that public health is protected by breaking up a gathering in excess of provincial or territorial requirements, then the police officer is not reasonably required to arrest persons attending that gathering. What is reasonably required is a question of fact and will depend on the specific legislative or common law duty, the particular factual circumstances, and the police action taken in each case.

Furthermore, the standard of justification for the use of ancillary powers is particularly stringent and the state bears a heavy burden if they are to establish that the power is "reasonably required". Indeed, it will be more difficult for the state to justify invasive police powers that are preventative in nature than those exercised in responding to a past or ongoing crime (see Fleming, supra).

Enforcement of Emergency COVID-19 Measures

Across Canada, provincial and territorial governments have enacted emergency measures in order to combat the spread of COVID-19. Depending on the statutory powers used to implement these emergency measures, provincial and territorial governments have various enforcement powers available to them. In this section, we provide an overview of the enforcement powers available to each province and territory to enforce emergency measures enacted in response to COVID-19.

Alberta

The Government of Alberta has implemented new enforcement measures for public health orders under the Public Health Act, RSA 2000 C. P-37 (the "ABPHA"), including increased penalties for contravention and enhanced police and community peace officer authority to issue fines, carry out investigations, and enforce orders issued by medical officers. For example:

community peace officers and police officers can issue court summons and tickets of up to $1,000 for each violation of a public health order; police officers can assist medical officers in the investigation of violations of the ABPHA and public health orders and in enforcing orders made by medical officers; penalties for contravention of public health orders are increased and may range from $100 to $5,000 for each day or part of a day the contravention continues; and courts may administer increased penalties for breach of the ABPHA of up to $100,000 for a first offence and $500,000 for a subsequent offence or more egregious offence. Public health orders that are subject to these new enforcement measures include those requiring mandatory self-isolation, restrictions on gatherings of more than 15 persons, and required closures of non-essential businesses. See our previous discussion of Alberta's emergency powers, here.

Section 73(1) of the ABPHA makes it an offence to contravene the ABPHA, the regulations, or a public health order. Under section 73(4) of the ABPHA, a judge is empowered to impose monetary penalties for offences under the ABPHA and to order a person to comply with the Act, regulations or any public health order.

On April 2, 2020, Bill 10, the Public Health (Emergency Powers) Amendment Act received Royal Assent. The Act amends the ABPHA and the Alberta Peace Officer Act (the "ABPOA") and gives police and peace officers additional authority during a public health emergency. For example:

police are permitted to accompany a medical officer into a public or private residence in order to investigate suspected violations of the ABPHA or a public health order under the new section 60.1 of the ABPHA; if an order given by a medical officer is not carried out, police have the authority to enforce the order under the new section 62.1 of the ABPHA; a person contravening a public health order is liable to pay a penalty of "not less than $100 and not more than $5000 for each day or part of a day during which the contravention continues" under the amended section 73(2) of the ABPHA; penalties for contravention of the ABPHA and regulations are increased to up to $100,000 for a first offence and $500,000 for a subsequent offence under the amended section 72(2) of the ABPHA. Note that this increase was previously enacted by way of Ministerial Order; that Order has now been rescinded; and during a public health emergency or provincial state of emergency, the Minister may give peace officers jurisdiction in Alberta over any duties specified by the Minister without first obtaining peace officer consent under the amended section 13 of the In addition, police and peace officers may now issue court summons and tickets for violations of public health orders and for violations of the ABPHA and regulations. This is because of Order in Council 100/200, issued by the provincial Cabinet on March 25, 2020. The Order in Council amended the Procedures Regulation. It provides that:

violation of the ABPHA is an offence subject to enforcement under the Provincial Offences Procedures Act; and the specified penalty payable by an individual in respect of a contravention of an order of a medical officer of health under Part 3 of the ABPHA is $1,000. On March 30, 2020, the Government of Alberta issued a bulletin to Alberta Peace Officers, including those in the Fish and Wildlife Enforcement Branch, Parks Enforcement Branch, and Sheriffs Branch, to begin...