1.  Canada is a parliamentary democracy with powers divided between the executive, the legislature, and the judiciary. The powers of each branch are established in the Constitution, which is comprised of the Constitution Act 1867¹ and the Constitution Act 1982.² The Constitution formally vests executive authority in the Crown, exercised in name by the Governor General, on the advice of the Prime Minister and Cabinet. In practice, executive authority is carried out by the Prime Minister and the Cabinet. The Cabinet is comprised of members of the legislature who are appointed by the Prime Minister, who then become Ministers and members of the executive branch.³ The federal legislature is bicameral, dominated by the lower house.

2.  Canada is a federal state with 10 provincial and 3 territorial governments. The Constitution Act 1867 outlines the division of powers between the federal and provincial governments. This report focuses on Ontario and British Columbia (BC) as exemplars, as these two populous provinces have responded differently to the pandemic, to differing effect: at time of writing, Ontario reports 380 cases per 100,000, as compared to British Columbia’s relative success story of 194 cases per 100,000.⁴

3.  The Constitution Act 1867 does not cleanly allocate responsibility for health to either level of government. Depending on the context, health-related rule-making, enforcement, and resource allocation can be addressed by valid legislation at either level of government.⁵ In general, health-related rule-making and enforcement go hand in hand.

4.  Provincial and territorial public health statutes separately establish the powers and responsibilities of public health officials, departments of health, and public health agencies. The provincial governments also have the authority to delegate responsibility to municipal governments to enact by-laws ‘to protect and promote health and safety of persons and property’.⁶ In particular, municipal governments are primarily responsible for responding to public health emergencies that arise in their jurisdictions.⁷ Across Canada, municipalities have established public health agencies, referred to as ‘Public Health Units’ in Ontario and ‘Health Service Delivery Areas’ in British Columbia, to provide efficient healthcare to communities.⁸ In Ontario, there are 35 Public Health Units,⁹ while in British Columbia there are 16 Health Service Delivery Areas.¹⁰ Municipalities have some rule-making authority, though enforcement is bounded by resource limitations.

5.  The federal government asserts jurisdiction over a number of health-related matters. In terms of pandemic and public health planning, the federal Public Health Agency of Canada Act 2006 establishes its namesake as a ‘national’ public health agency.¹¹ Under the federal Quarantine Act 2005,¹² the federal government is empowered to establish quarantine facilities across the county and to regulate and limit entry into Canada, to prevent the spread of communicable diseases at the national border.¹³ The Emergencies Act 1985 empowers the federal government to respond to a public health emergency if a provincial government cannot adequately respond, risking the health of those in the province and beyond.¹⁴

6.  The Covid-19 pandemic did not change the basic constitutional division of powers in Canada.

7.  Canada has not declared a national state of emergency due to Covid-19, and no constitutional provisions have been suspended. Triggering the federal emergency powers might have had some advantages, eg, by allowing cohesive standards and making use of the federal government’s spending powers. However, the downside includes operational challenges stemming from the disparate impact Covid-19 has had across the country, the fact that provinces are more experienced in the delivery of health care, and opposition by provincial governments.¹⁵

8.  In general, no international conventions to which Canada is a party have been relevant to its response to the pandemic and Canada did not legally derogate from any of the provisions of the international conventions it is a party to. For example, despite the pandemic the new Canada-United States-Mexico Agreement (CUSMA) came into force on 1 July 2020. While this agreement was not altered in substance or delayed by Covid-19, the economic fallout from the pandemic deepened some parties’ concerns that the Agreement was being implemented at a time of great instability, putting businesses at greater financial risk.¹⁶

9.  National authorities do not directly quote standards developed by the World Health Organization (WHO) in the legal instruments or official guidance promulgated to address Covid-19, however, the WHO’s standards are referenced in national guidelines related to Covid-19 prevention and patient care.¹⁷

10.  To date, the federal government has not declared a national emergency under the Emergencies Act 1985.¹⁸ Such declarations must address temporary situations that ‘seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it’.¹⁹ The federal Quarantine Act has been relied on to ensure that travelers returning to Canada from abroad are legally required to quarantine for 14 days.²⁰ Further, regulatory amendments under the Contraventions Act allowed the Royal Canadian Mounted Police, as well as local and provincial police forces, to issue tickets for noncompliance with orders issued under Quarantine Act, streamlining enforcement.²¹

11.  All provinces and territories have declared states of emergency under their respective emergency powers legislation. On 18 March, pursuant to Ontario’s Emergency Management and Civil Protection Act 1990, the province declared a state of emergency.²² Under the Emergency Management and Civil Protection Act, Lieutenant Governor in Council (acting on the advice of Cabinet) or the Premier can declare a state of emergency throughout Ontario. Further, the head of council of a municipality can declare a state of emergency in their municipality or in part of it.²³ That same day, British Columbia declared a state of emergency under the Emergency Program Act 1996. Under the Emergency Program Act, an emergency can be declared in all or part of the province by the minister or the Lieutenant Governor in Council; a local emergency can be declared by a local authority or the head of the local authority.²⁴

12.  Ontario has used the Emergency Management and Civil Protection Act to declare a state of emergency and thereby close non-essential businesses, enforce physical distancing measures, limit social gatherings, and prohibit price gouging.²⁵ Under the Health Protection and Promotion Act 1990,²⁶ public health units have the power to require individuals infected with Covid-19 to self-isolate, however, with the exception of one public health unit this power has not been used. Under the same act, the province has used its powers to regulate long-term care homes.²⁷

13.  British Columbia has used the Emergency Program Act to declare a state of emergency and to use emergency powers allowing the province to prohibit price gouging of essential goods and supplies.²⁸ Further, British Columbia used its powers under the Public Health Act to issue orders to limit gatherings, to require individuals returning to the province after traveling abroad to self-quarantine for 14 days, and to regulate long-term care homes.²⁹

14.  No new general laws were introduced to grant emergency powers to the federal government. However, the federal government did introduce new legislation to help respond to the crisis. For example, the federal government passed a series of bills, including Bill C-13, aimed at facilitating federal spending, easing the financial burden experienced by individuals and businesses by providing subsidies and payments for income lost due to Covid-19.³⁰ In March, April, and May 2020, at the peak of the crisis in Canada, these pieces of legislation were all passed within 2 days of being introduced.³¹ The federal relief package received support from all political parties, however some members of the Conservative party pushed back against some sections of Bill C-13, arguing that specific provisions gave the executive too much power. Ultimately these controversial sections were removed or amended.³²

15.  After Ontario declared a state of emergency under its Emergency Management and Civil Protection Act 1990, the province eventually introduced a new act through the passing of Bill 195, Reopening Ontario (A Flexible Response to Covid-19) Act 2020, allowing orders made under the 1990 Act to be extended for 30 day periods to manage the pandemic.³³ The Canadian Civil Liberties Association argued that the legislation frees ‘the executive branch of effective democratic oversight.³⁴ Further, the province passed a series of bills, most of which amended pre-existing acts, to enable the province to better address Covid-19.³⁵ For example, Bill 186 amended the Employment Standards Act to specify ‘when emergency leave is available to employees in case of infectious disease emergencies.’³⁶ In some cases, the legislation is intended to be temporary: eg the Hearings in Tribunal Proceedings (Temporary Measures) Act 2020 ‘empowers specified tribunals to determine how hearings before them may be held’ and will be repealed on proclamation of the Lieutenant Governor.³⁷ All Covid-19-related bills that were passed before July were generally introduced and passed on the same day.

16.  After British Columbia declared an emergency under its Emergency Program Act, the BC Government amended and introduced new legislation (see Part II C below for more information).³⁸ For example, the Covid-19 Related Measures Act 2020, inter alia, empowers the government, during a declared emergency, to alter legislation through the issuance of regulations.³⁹ The legislation has been critiqued by the British Columbia Civil Liberties Association for giving the government sweeping and unchecked powers.⁴⁰ Parts of the legislation are set to be repealed in one year, however the controversial measures allowing the alteration of legislation during an emergency are permanent. After being introduced, British Columbia’s Covid-19-related bills took between one day and four weeks to pass. Apart from the issue just mentioned, there has not been a significant critique of the bills passed by the province to address Covid-19.

17.  At the federal and provincial levels, executive rule-making powers played a dominant role in providing the rules for dealing with the crisis. Federally, legislation enacted by Parliament can delegate power to other authorities to make and apply subordinate legislation. Pursuant to the Statutory Instruments Act,⁴¹ Parliament’s Standing Joint Committee for the Scrutiny of Regulations is responsible for reviewing delegated legislation. The House of Commons has the power to ‘adopt or reject a report presented by the Committee that advocates the revocation of a statutory instrument because it is not keeping with the intentions of the Act from which it is derived.’⁴² The federal government relied on Orders in Council, pursuant to diverse federal legislation to address the Covid-19 pandemic in Canada.⁴³ Orders in Council are not debated by Parliament, rather they are ‘drafted by cabinet and formally approved by the Governor General’, ‘acting on the advice and consent of the Queen’s Privy Council’.⁴⁴ Due to the federal government’s limited jurisdiction over creating laws and rules relating to Covid-19, its primary responsibility has been to mandate and enforce a mandatory 14 day quarantine of travelers arriving in Canada from abroad.

18.  In Ontario, regulations played a major role in the province’s response to Covid-19. A regulation is ‘a law that is made by a person or body whose authority to make the law is set out in a statute. Usually, the authority is given to the Lieutenant Governor in Council. Sometimes the authority is given to a Minister of the Government or to another person or body.’⁴⁵ Regulations made pursuant to the Emergency Management and Civil Protection Act are revoked after 14 days or sooner, however they can be extended before they are revoked for periods no longer than 14 days.⁴⁶ They are subject to judicial review under both administrative and constitutional law. The Reopening Ontario Act was passed to extend specific legislation that has been crucial to how Ontario has addressed Covid-19.⁴⁷ This Act allows for Orders made under the Emergency Management and Civil Protection Act to be extended for 30 days and these Orders can be further extended by 30 days.⁴⁸ The Premier or responsible Minister must regularly report to the legislature (every 30 days at minimum) on the usage of this extension power and their rationale.

19.  In British Columbia, Orders in Council have played a predominant role in the province’s approach to addressing Covid-19. Pursuant to the Emergency Program Act, and the Public Health Act, Orders have been issued to: restrict the staffing in long-term care homes;⁴⁹ require that non-essential businesses close; require that the owners and operators of premises that serve food and drink ensure patrons can maintain physical distancing requirements and to collect the information of patrons to facilitate contact tracing;⁵⁰ prohibit price gouging;⁵¹ require those who return to the province after travelling internationally to self-quarantine; and to require international travelers to submit to medical tests as considered necessary to control the spread of Covid-19.⁵² The Emergency Program Act requires that a state of emergency expire after 14 days, but this period can be extended by another 14 days.⁵³ The Public Health Act does not specify when an Order must expire, however the Order must state the date or the circumstances under which it is to expire.⁵⁴

20.  Any of the measures implemented by the federal or provincial governments can be challenged in court. To date, several legal cases have begun, challenging the legal measures taken by the federal and provincial governments, as well as governments’ failure to take protective measures, in addressing Covid-19.

21.  The federal Public Health Agency has made multiple recommendations regarding self-isolation after possible exposure to Covid-19, and while such recommendations may have cultural and persuasive force, they are not enforceable.⁵⁵ The federal government issued advice to Canadians traveling within and outside of Canada,⁵⁶ recommendations on reducing the spread of Covid-19,⁵⁷ as well as to public health care professionals on diagnosing, caring for, and reporting on cases of Covid-19. Guidance documents were issued to provide ethical and technical guidance on Covid-19 for various audiences, including child and youth settings, post-secondary institutions, businesses, indigenous communities, and faith community leaders.⁵⁸

22.  At the provincial level, non-statutory guidance has played a key role in the implementation of Covid-19 responsive measures. The Government of Ontario developed ‘A Framework for Reopening our Province’ that serves as a guide for the province’s approach to slowly reopening as the cases of Covid-19 diminish.⁵⁹ The Province has also produced guidance documents for health and other sectors, as well as for the general public.⁶⁰ Ontario’s Chief Medical Officer of Health recommended that long-term care homes, retirement homes, and other congregate care settings prohibit non-essential visitors and the province developed a Covid-19 Action Plan for long-term care homes.⁶¹ Moreover, as discussed further in Part IV below, in response to Covid-19 outbreaks among migrant workers on Ontario farms, the provincial government developed an action plan to help contain the outbreak and reduce further spread.⁶² Some municipalities have issued recommendations for business owners and operators.⁶³

23.  Similarly, British Columbia has also made use of non-statutory guidance in its approach to limiting the spread of Covid-19. For example, the government developed a Restart Plan to guide the province’s gradual reopening.⁶⁴ Further, the province issued a series of recommendations and guidance documents for the general public, businesses, and employers from various sectors, indigenous communities, and a variety of community settings.⁶⁵

24.  BC also issued guidance to direct long-term care and assisted living homes in an effort to limit the spread of Covid-19 among residents.⁶⁶

25.  At both the federal and provincial levels, the non-statutory guidance issued by the government recommends much more extensive restrictions on individuals and businesses than what is required by law. For example, while the federal Public Health Agency states that individuals should self-quarantine if they have been exposed to someone who has been or who is likely infected with Covid-19, the federal government cannot legally enforce this. Rather, the federal government can only legally require an individual to self-quarantine if they are returning to Canada from international travel.

26.  At the federal level, the House of Commons does have an oversight role over the decree and regulation-making powers of the executive, exercised primarily by addressing questions to the Prime Minster and other Ministers. However, Parliament adjourned on 13 March 2020, after having ‘expedited the passage of legislation authorizing the executive to spend without prior parliamentary approval for a period of three and a half months.’⁶⁷ While Parliament has not played a significant oversight role, ‘the Senate and the House of Commons have variously authorized or mandated committees to provide ongoing oversight of the government’s response to Covid-19.’⁶⁸ For example, on 20 April a motion was passed establishing the Special Committee on the Covid-19 Pandemic, whose mandate is to oversee the government’s response, including by ‘questioning ministers of the Crown, including the Prime Minister, in respect of the Covid-19 pandemic.’⁶⁹ On 18 August, Prime Minister Justin Trudeau prorogued Parliament, ostensibly to allow the government to adjust its strategy to account for the Covid-19 pandemic.⁷⁰ This has been criticized because it negatively impacts the ability of the opposition to critique government action.

27.  In Ontario, pursuant to the Emergency Management and Civil Protection Act, the provincial legislature has no authority to cancel a declaration of state of emergency.⁷¹ An emergency order made pursuant to the Act is revoked after 14 days unless it is revoked sooner. An extension of the emergency order does not come before the provincial legislature, but instead is renewed by the Lieutenant Governor in Council or Minister for an additional 14 days.⁷² As mentioned, the Reopening Ontario (A Flexible Response to Covid-19) Act 2020 (ROA), passed on 21 July 2020, allows emergency measures to be extended for 30 days at a time by the Lieutenant Governor,⁷³ but requires regular reporting to the legislature by the Premier or responsible Minister.

28.  In Ontario, there were no committee meetings held between mid-March and early June 2020. As such, there was no committee oversight of executive decision making throughout the early months of the pandemic. To-date, no special committees have been created to oversee executive decision making related to Covid-19.⁷⁴ Further, question period was suspended at the start of the pandemic until mid-May.⁷⁵ This meant that there was little opportunity for the opposition parties to scrutinize the provincial Conservative government’s decisions, including emergency decisions made in response to Covid-19.

29.  In British Columbia, after a declaration of a state of emergency pursuant to the Emergency Program Act, the minister is empowered to ‘do all acts and implement all procedures that the minister considers necessary to prevent, respond to or alleviate the effects of an emergency or a disaster’.⁷⁶ While the Act does list some examples of measures the minister can take, this list is explicitly non-exhaustive. An emergency declaration made pursuant to the Emergency Program Act expires after 14 days and the Lieutenant Governor in Council can extend a declaration for periods of up to 14 days at a time. An extension of the emergency order does not come up before the provincial legislature.⁷⁷ No special committees were created to oversee executive decision making related to Covid-19.⁷⁸ When the legislature resumed sitting on 22 June 2020, it was equipped to hold question period, despite many of the Members of the National Assembly participating through video conference.⁷⁹

30.  On 13 March 2020, Canada’s Parliament adjourned and all scheduled sittings were cancelled. Parliament was recalled on 17 occasions between its adjournment and 18 July. It then met on 20 and 22 July, and 12 August. Members of Parliament were able to participate in-person or by video conference.⁸⁰ While Parliament was scheduled to meet on 26 August and then adjourn until 31 September,⁸¹ on 18 August the Prime Minister prorogued Parliament until 23 September 2020.⁸² Since the House of Commons adjourned, it ‘used the unanimous consent procedure to fast-track the adoption’ of Covid-19 related legislation.⁸³ The unanimous consent procedure allows limited opportunity for debate.⁸⁴ Further, in July and August limits were imposed on Members of Parliament to restrict questioning Ministers on matters relating to Covid-19 to 95 minutes, and debate related to Covid-19-related measures being taken by the government could not exceed two hours and 20 minutes.⁸⁵

31.  Ontario’s legislature continued to meet during the first wave of the Covid-19 pandemic in Canada. Since it reconvened in February it was able to pass 18 pieces of legislation before it adjourned on 22 July 2020. The legislature met for extended emergency sittings in response to Covid-19. Public health guidance was implemented ‘to allow the full participation of all MPPs’,⁸⁶ including physical distancing measures and allowing virtual meetings. The legislature reconvened on 14 September.⁸⁷

32.  British Columbia’s legislature went on a two-week constituency break on 13 March 2020, and sat on 23 March to pass emergency Covid-19 legislation.⁸⁸ After this break, the legislature did not sit again until the week of 22 June. The legislature then sat the weeks of 6 July, 13, 20, 27, and 10 August.⁸⁹ When sitting the majority of the Members of the National Assembly (MLA) participated through videoconference, with only up to 24 MLAs physically present.⁹⁰ The Public Gallery is now open to those who register in advance. Further, the province released a safety plan specific to reducing the spread of Covid-19 at the Legislative Assembly.⁹¹ The Legislative Assembly was dissolved on 1 September in anticipation of the provincial general election on 24 October.⁹²

33.  At the federal level, there have been complaints in the press and by opposition parties due to the political constraints imposed on Parliament during the pandemic. Specifically, the media has drawn attention to how Parliament’s use of closed-door negotiations for emergency lawmaking has significantly reduced government transparency, in favour of expediency.⁹³ Another issue brought to light by the media is that when Parliament passed Bill C-12 on 13 March,⁹⁴ which was emergency legislation, only ‘a small number of senior MPs’ were present, and a disproportionate number were from Ontario and Quebec. This is problematic as the views expressed during negotiations would not have represented the regional diversity across Canada.⁹⁵ The Conservative Party critiqued the Liberal government’s plan to hold one in-person sitting in the House of Commons per week, with only a small number of Members of Parliament present, stating that this was not a sufficient number of in-person sittings.⁹⁶

34.  Federal Parliamentary committee meetings continued during the pandemic, with the House of Commons and Senate having ‘authorized or mandated committees to provide ongoing oversight of the government’s response to Covid-19.’⁹⁷ These meetings occurred online for the most part.⁹⁸

35.  In Ontario, no committee meetings were held between mid-March and early June 2020.⁹⁹ Now that committee meetings have resumed, meetings are held with some Members of Provincial Parliament physically present, and some participating through video conference. The committee meeting Chair is responsible for recognizing participants before speaking and for moderating discussion.¹⁰⁰

36.  Committee meetings of the BC Legislative Assembly occurred virtually throughout the pandemic.¹⁰¹

37.  The Supreme Court of Canada adjourned cases to be heard during March, April, and May 2020 and rescheduled the cases to be heard in June by videoconference and closed the court to all persons except those necessary to the proceedings before the Court.¹⁰² Further, the Federal Court and Federal Court of Appeal of Canada temporarily stopped hearing non-urgent matters and transitioned to holding select hearings by telephone or videoconference.¹⁰³

38.  In Ontario, Superior Court of Justice courts remained open to hear ‘urgent matters’ virtually and postponed all other cases until a later date. While very few cases were deemed to be urgent at first, slowly the Court has expanded this list to include cases related to public safety and health and Covid-19, select family and child protection matters, limited civil and commercial list matters, as well as ‘any other matter that the Court deems necessary and appropriate to hear on an urgent basis.’¹⁰⁴ Limited in-person hearings did not resume until 6 July.

39.  Similarly, the Supreme Court of British Columbia ceased ‘all regular operations’ and all regular hearings scheduled after 18 March 2020 were adjourned indefinitely.¹⁰⁵ ‘Urgent and essential matters’ continued to be heard in-person and the Court continued to ‘receive and process filed documents for all of its cases.¹⁰⁶ Beginning on 20 April, the Court implemented procedures to allow non-urgent or non-essential matters to be heard, including allowing civil and family matters to be held by Telephone Conference Hearing. On 4 May, pre-trial conference for criminal trials began to be held by telephone. Beginning 8 May, the court expanded the scope of applications that can proceed by way of written submission to allow more family and civil matters to proceed. As of 19 May, the Court released a Notice detailing changes to its operations, including that ‘summary conviction and traffic ticket appeals will be scheduled by telephone where possible and appropriate.’ On 1 June, judicial case conferences, trial conferences, and chambers matters resumed by telephone. Some in-person trials resumed at select courthouses on 8 June.¹⁰⁷

40.  To date there has not been significant discussion of the digital divide between users accessing court proceedings through video links. Nor has there been any perceptible concern that taking legal action presents a risk to health. This is likely due to a combination of factors, including the postponement of many proceedings, and the availability of teleconferencing as an alternative to digital communications.

41.  To reduce the spread of Covid-19, civil procedure requirements have been altered at the federal as well as provincial levels and public health measures have been implemented for in-person court proceedings. For example, the Supreme Court of Canada extended deadlines for filing and serving documents, and allowed for electronically commissioned affidavits. Further, the Federal Court waived certain filing fees, changed the process to file documents, and allowed for affidavits to be commissioned remotely, and suspended the requirement to gown.¹⁰⁸ Both the Supreme Court and the Federal Court have resumed some in-person hearings with physical distancing measures in place.

42.  In Canada, courts play a significant role in terms of reviewing government decisions. In this sense, courts do have the power to review emergency declarations made by the federal government under the Emergencies Act, by Ontario under its Emergency Management and Civil Protection Act, or by British Columbia under its Emergency Program Act. Judicial review of an emergency declaration would generally be based on the declaration either being inconsistent with the legislation or inconsistent with the Constitution.¹⁰⁹ For example, in April 2020 the Ontario government issued an order, under the Emergency Management and Civil Protection Act, that allowed police to obtain the names, addresses, and birthdates of Ontarians who had tested positive for Covid-19.¹¹⁰ A group of human rights organizations filed a legal challenge, alleging that the order violated Charter¹¹¹ rights to privacy and equality—prompting the Ontario government to revoke the order.¹¹² In British Colombia, a religious group tried unsuccessfully to overturn the province’s restrictions on public gatherings as violating Charter rights to freedom of assembly, ‘life, liberty and security of the person’, freedom of religion and conscience, and the right to equality under the law.¹¹³

43.  No elections or referendums have been suspended due to Covid-19. Additionally, no elections or referendums have taken place during the Covid-19 pandemic. Canada’s Chief Electoral Officer has approved a number of measures for Elections Canada to implement to maintain the ‘safety and integrity of the electoral process’ in the context of the Covid-19 pandemic. These measures include: implementing physical distancing at polling stations, ‘changing the agency’s model of operation’ to allow less workers to be present, and ‘increasing the capacity of the existing vote-by-mail system’. While extremely unlikely, in the event that the pandemic makes it impossible to administer the election in one or several districts, the Chief Electoral Officer could ‘recommend to the governor-in-council that the election writ be withdrawn’.¹¹⁴ Elections Ontario staff worked remotely during Covid-19.¹¹⁵ In anticipation of BC’s next provincial election in October 2020 and in recognition that many Covid-19-related health measures might still be necessary, Elections BC has been preparing by planning to increase advance voting opportunities and remote voting options for at-risk voters, as well as implementing public health measures at in-person voting locations.¹¹⁶

44.  At the federal and provincial levels there is no legally protected or provided for role for scientific advice. The chief executive officer of the Public Health Agency of Canada is not independent from the federal government, and as such, the Agency’s CEO reports to the Minister of Health. The Chief Public Health Officer (CPHO) of Canada, currently a role filled by Theresa Tam, is the ‘lead health professional of the Government of Canada in relation to public health.’¹¹⁷ The CPHO ‘provides advice to the Minister of Health, supports and provides advice to the President of the Public Health Agency of Canada, and works in collaboration with the President in the leadership and management of the Agency.’¹¹⁸ The CPHO is empowered by the Public Health Agency of Canada Act. While the agency employing the CPHO is not independent from the federal government, the CPHO is able to communicate with the public, as well as voluntary or public sector public health organizations, to provide information or opinions on public health.¹¹⁹

45.  In 2017, Prime Minister Justin Trudeau created the post of Canada’s Chief Science Advisor, who reports to and provides advice to the Prime Minister and to the Minister of Science.¹²⁰ While this post is not independent from the federal government, it does nonetheless contribute to transparency and the independence of federal scientists. Among other things, the Chief Science Advisor is responsible for advising ‘on guidelines to ensure that government science is fully available to the public and that federal scientists are able to speak freely about their work’ and on ‘creating and implementing processes to ensure that scientific analyses are considered when the Government makes decisions.’¹²¹

46.  Ontario’s Chief Medical Officer of Health, empowered by the Health Protection and Promotion Act, is responsible for ensuring that ‘appropriate actions are taken to respond to urgent and emergency situations’ and reports to the Deputy Minister of Health.¹²² However, the Chief Medical Officer of Health does have the power to issue health directives related to healthcare precautions and procedures to health care providers and other health care entities. Further, the Chief Medical Officer of Health can issue directives to boards of health or medical officers of health requiring the adoption or implementation of measures or policies concerning infectious diseases, health hazards, public health emergency preparedness, or a matter described in regulations made by the Minister. The Chief Medical Officer of Health can make any reports relating to public health that they consider appropriate and these reports can be presented to the public or any person they consider appropriate. ¹²³

47.  In British Columbia, the provincial Health Officer is the senior public health official in the province. The Public Health Act outlines their responsibilities, including: providing ‘independent advice to the Ministers and public officials on public health issues’ and on ‘the health of the population of British Columbia’. The provincial Health Official also ‘advises, in an independent manner, the ministers and public officials on public health issues and on the need for public health related legislation, policies and practices’.¹²⁴ The Provincial Health Officer can make reports to the public on matters such as: public health issues, the need for legislation to address public health issues, and ‘on any matter arising from the exercise of the provincial health officer’s powers or performance of his or her duties under this or any other enactment.’¹²⁵

48.  Reporting on Covid-19 by the media has not been constrained or obstructed in any way by the government. However, in April 2020 there were reports that the federal government was discussing the possibility of introducing new legislation that would ‘make it an offence to knowingly spread misinformation that could harm people.’ To date, no legislation of this nature has been introduced.¹²⁶ While not aimed at constraining media reporting on the pandemic, the federal government’s Digital Citizen Contribution Program is providing additional funding to organizations ‘supporting citizens to think critically about the health information they find online, to identify mis- and disinformation, and limit the impact of racist and/or misleading social media posts relating to the Covid-19 pandemic.’¹²⁷

49.  Further, while the fulfilment of access to information requests has been delayed in many cases due to Covid-19, the laws relating to access to information have not been suspended or modified.¹²⁸

50.  At the federal level, the Office of the Correctional Investigator, the ombudsman for federal prisons, released a report in April 2020 detailing how the confinement practices in correctional institutions experiencing Covid-19 outbreaks were clear violations of universal human rights standards.¹²⁹

51.  The Ontario Ombudsman has worked to address complaints against the Ministry of Health and Long-Term Care related to Covid-19 by directing complainants to relevant officials and/or sources of information. For example, on 1 June 2020 ‘the Ombudsman launched a systemic investigation into the province’s oversight of long-term care homes during the pandemic.’¹³⁰ Ontario’s Patient Ombudsman announced on 2 June that it is conducting a separate investigation ‘specific to the resident and caregiver experience at long-term care homes with outbreaks of Covid-19’ after receiving over 150 complaints about long-term care homes.¹³¹

52.  In British Columbia, an Ombudsman investigation found that two Orders made by BC’s Minister of Public Safety and Solicitor General ‘went beyond the authority assigned to him under the Emergency Program Act and thus are contrary to law.’¹³² To address these issues, the Ombudsman made five recommendations to government, including to introduce ‘legislation as soon as possible to validate the orders and to not make any further orders amending statutes unless the legislature passes legislation authorizing such orders.’¹³³

53.  Given the country’s division of powers over health, and regional differences in the timing and level of outbreaks, Canada’s response to the pandemic has not moved in lockstep. After the WHO declared a pandemic on 11 March 2020, provincial and territorial governments all began issuing recommendations and, eventually, issuing Orders pursuant to pre-existing legislation. Depending on the region, these recommendations and Orders resulted in ‘lockdowns’ involving the closure of schools, non-essential businesses, and many public spaces. They also created restrictions on gatherings and travel. Quebec has restricted non-residents’ travel into the province, and travel between regions within the province. Quebec has also implemented region-specific curfews. Canada’s Atlantic provinces created an ‘Atlantic bubble’, which at times disallowed non-residents from entering the bubbled provinces and always required a two-week quarantine upon entering the bubble. Public health measures such as physical distancing and the use of face coverings in public spaces have been used widely across the country. At the federal level, restrictions have been imposed on non-essential travel into the country, and visitors have been ordered to quarantine.

54.  As indicated, the provinces have taken the lead in Canada’s response. After the WHO declared a pandemic on 11 March 2020, Ontario almost immediately began issuing recommendations and eventually followed with Orders pursuant to pre-existing legislation: closing schools,¹³⁴ and recommending that long-term care homes, retirement homes and other congregate care settings prohibit non-essential visitors.¹³⁵ On 18 March 2020, the province declared a state of emergency¹³⁶ and issued the first of many limits on social gatherings.¹³⁷ On 23 March 2020, all non-essential businesses were ordered to close.¹³⁸

55.  On 27 April 2020, Ontario announced a three-phase approach for reopening the province, moving from one phase to another according to four criteria: virus spread and containment; health system capacity; public health system capacity; and incidence tracking capacity.¹³⁹ Through Phase 1, most public spaces and businesses remained closed, and while there was no formal ‘lockdown’, there was little reason to leave one’s home.¹⁴⁰ The transition to Phase 2 on 19 May 2020 began the loosening of emergency measures, allowing more businesses to open and expanding the limit on social gatherings on a regional basis, in three stages. By 17 July 2020, 24 of Ontario’s 35 public health units entered Stage 3 of Phase 2,¹⁴¹ wherein all workplaces and public spaces were allowed to open and the limit on social gatherings grew significantly.¹⁴² Phase 3 will allow for a transition to Ontario’s ‘new normal’ with a heightened focus on economic recovery, but details have yet to be announced.

56.  On 17 March 2020, BC’s provincial health officer declared a public health emergency under the Public Health Act and closed all schools.¹⁴³ On 18 March, the province’s Minister of Health and Safety and Solicitor General declared a provincial state of emergency under the Emergency Program Act. British Columbia followed a four-phase approach in response to Covid-19, moving from one phase to another on the basis of low or declining transmission rates and, to initiate the final phase, at least one of the following: widespread vaccination; community immunity; or the development of broad successful treatments.¹⁴⁴ During Phase 1, many non-essential businesses were closed, and those kept open had to develop safe operation plans. Mass gatherings of more than 50 people were prohibited, physical distancing was mandated, and parks were closed.¹⁴⁵ During Phase 2, which began on 19 May, people were encouraged to remain close to their homes and avoid travel outside their community. Subject to safety restrictions, more businesses were allowed to reopen on the condition that they created a Covid-19 Safety Plan and enforced physical distancing measures.¹⁴⁶ Phase 3, which began on 24 June 2020, allowed for people to travel within BC. More businesses were allowed to open, subject to similar safety precautions as seen in Phase 2. Finally, Phase 4 will allow for large group gatherings and international tourists will be able to enter the province. Conventions, live audience professional sports, and concerts will be able to resume. For this phase to begin, the provincial government is waiting for at least one of the following: widespread vaccination against the virus; community immunity; or broad successful treatment.¹⁴⁷

57.  There was no strict ‘lockdown’ in Ontario, BC, or, indeed, in other provinces; though a number of provinces closed their borders to non-residents. However, in an effort to reduce the spread of Covid-19 amongst long-term care residents and staff, there was an effective ‘lockdown’ of Ontario long-term care homes—residents were not able to leave and the province strongly recommended that homes prohibit non-essential visitors between 13 March and 18 June 2020.¹⁴⁸

58.  Beginning on 18 March 2020, the federal government banned all foreign nationals from entering Canada with some exceptions, excluding for those coming from the United States, sun destinations (such as Mexico), and those flying through Canada en route to a third country.¹⁴⁹ Canadian citizens and their immediate family members, permanent residents, diplomats, and air crews continued to be permitted to return from other international destinations. Those returning from international flights were required to land at the airports in Vancouver, Calgary, Toronto, or Montreal.¹⁵⁰ On 20 March 2020, a further Order was issued, prohibiting foreign nationals from entering Canada from the United States, subject to some exceptions including if they were entering Canada for essential, non-discretionary purposes—for example, travel for employment on a valid work permit, or visiting immediate family—and if during the last 14 days they have only been in either Canada or the United States.¹⁵¹ On 26 March, the federal government issued another Order, closing its borders to foreign nationals seeking to enter Canada through the United States for essential purposes if they have been outside Canada or the United States in the last 14 days. That same day, another Order was issued barring travelers from all other foreign countries from entering Canada for non-essential purposes, subject to some exceptions.¹⁵² All airlines must conduct health checks of those boarding the flight by asking them questions to determine if they have Covid-19 symptoms, and temperature screenings must be done on all passengers on flights to Canada. Further, all air travelers are required to wear a face mask or covering, with some exceptions.¹⁵³

59.  As of 24 March 2020, under an Order pursuant to the federal Quarantine Act, all travellers arriving in Canada from a foreign country must self-quarantine for 14 days, whether or not they have any signs or symptoms.¹⁵⁴ Violating the mandatory quarantine can lead to a fine of up to $750,000 CAD and/or 6 months in prison. An individual can face an additional fine of up to $1,000,000 CAD and/or imprisonment of up to 3 years if they are found guilty of causing ‘a risk of imminent death or seriously bodily harm to another person while willfully or recklessly contravening this act or the regulations.’¹⁵⁵

60.  Beginning on 30 March 2020, under an Order issued by the federal government pursuant to Railway Safety Act,¹⁵⁶ passengers with Covid-19 symptoms are not allowed to travel by railway in the country. A health check is conducted on each passenger by asking them if they have a fever, cough, and/ or breathing difficulties. Further, passengers must be asked whether they have been refused boarding by other transportation services ‘in the past 14 days due to a medical reason related to Covid-19’, and if they are currently ‘subject of a provincial or local health order’.¹⁵⁷ Individuals providing false or misleading answers may be subject to fines of up to $50,000 CAD.

61.  Turning to the provinces, Ontario has not implemented travel restrictions beyond those issued at the federal level.¹⁵⁸ However, in BC, pursuant to the Public Health Act, the provincial government issued an Order requiring those who return to the province after travelling internationally to self-quarantine for 14 days. Essential workers are exempt from this provincial Order requiring self-isolation upon returning from international travel.¹⁵⁹ Some provinces in Canada have limited travel into their province.¹⁶⁰ For example, Quebec prohibited travel to specific regions within the province¹⁶¹ and closed its borders to Ontario residents between 1 April and 15 May 2020.¹⁶² Newfoundland and Labrador, Nova Scotia, New Brunswick, and Prince Edward Island all closed their borders to outside travelers. On 3 July, these provinces eased restrictions to allow inter-provincial travel for residents of these eastern provinces, creating what has been called an ‘Atlantic bubble’. Visitors traveling to these provinces from another Canadian province or territory are required to self-quarantine for 14 days before being able to move freely throughout these provinces.¹⁶³

62.  On 18 March 2020, Ontario issued a regulation prohibiting public social gatherings of more than 50 people.¹⁶⁴ On 28 March, Ontario issued a regulation limiting all social gatherings to a maximum of five people. An exception to this regulation was allowed for funeral services, which could be attended by no more than 10 people.¹⁶⁵

63.  During Stage 1 of Ontario’s second phase of reopening, which began 18 May 2020, social gatherings in public and private spaces continued to be limited to five people, even if the gathering occurred in a private dwelling. This rule did not apply to gatherings of those living in the same household; gatherings for funeral services, which were limited to 10 people; and gatherings for religious a religious services, rites, or ceremonies if the participants stayed in their motor vehicles and followed specific safety protocols. ¹⁶⁶

64.  Stage 2, which began for 24 of Ontario’s 35 public health units on 12 June 2020, allowed for social gatherings of up to 10 people with the same conditions and exceptions as required in Stage 1. In addition, an exception was allowed on the prohibition on gatherings of more than 10 people for those seeking goods and services from a business, or those attending an event organized by a business that was allowed to open during Stage 2. For example, this exception applied to businesses that primarily sell food, and services including pharmacies and gas stations.¹⁶⁷ Further, gatherings for a weddings, funerals, services, rites, or ceremonies could exceed the 10-person limit if the room the event was being held in was only at 30 per cent capacity, physical distancing requirements were followed, and provincial cleaning and sanitation recommendations were adhered to. A final exception was made for outdoor weddings where the province instituted a 50-person limit with physical distancing as well as cleaning and sanitation requirements.¹⁶⁸

65.  Stage 3, which began for 24 of Ontario’s 35 public health units on 17 July 2020, allowed for social gatherings of up to 50 people indoors and 100 people outdoors. There are exceptions to these limits: for events that adhere to a capacity limit of 30 per cent and physical distancing requirements; for day camps for children that comply with the Covid-19 guidelines produced by the Office of the Chief Medical Officer of Health; and for drive-in events.¹⁶⁹

66.  On 12 March 2020, BC issued an Order pursuant to the Public Health Act prohibiting indoor and outdoor events larger than 250 people, including conferences, meetings, and religious gatherings. This limit was then lowered to 50 people on 16 March.¹⁷⁰ Presently, an Order remains in place limiting gatherings to 50 people. The province has also encouraged individuals to avoid indoor gatherings of people who do not live in the same household.¹⁷¹ Further, social gatherings and events in vacation homes or accommodation are limited to five individuals.¹⁷²

67.  On 19 March 2020 the federal government closed all national parks, historic sites, historic waterways, and marine conservation areas. The process of closing these spaces began on 19 March when Parks Canada closed all visitor services,¹⁷³ and on 25 March when Parks Canada prohibited motor vehicles access by visitors to all national parks, historic sites, historic waterways, and marine conservation areas.¹⁷⁴ On 15 April, Parks Canada announced that all ‘camping, group activities and events at all national parks, national historic sites, heritage canals and national marine conservation areas’ were suspended.¹⁷⁵ On 1 June, some national parks, historic sites, historic waterways, and marine conservation areas were reopened if physical distancing was possible in the spaces.¹⁷⁶ Beginning on 22 June, camping resumed in some areas.¹⁷⁷

68.  On 24 March, under a regulation pursuant to the Emergency Management and Civil Protection Act, Ontario ordered that all businesses close except for those essential to supply chains and those that sell or supply ‘essential’ consumer products and services.¹⁷⁸

69.  As mentioned, reopening under Phase 2 has moved in three stages and varied regionally with those areas with low Covid-19 rates opening first. Beginning on 12 June 2020, pursuant to a regulation under the Reopening Ontario (A Flexible Response to Covid-19) Act, many businesses and facilities were allowed to open in 24 of Ontario’s 35 public health units.¹⁷⁹ Reopening was allowed on the condition that the businesses enforce physical distancing guidelines of at least two metres between those in different households and that they meet cleaning requirements.¹⁸⁰ These businesses and facilities included: restaurants, bars, and food trucks; day camps for children; golf courses and outdoor driving ranges; campgrounds; and churches.¹⁸¹ With the commencement of Stage 3 of Phase 2 on 17 July, more businesses in the 24 health units were allowed to reopen, on the condition that they enforce physical distancing and provincial health and safety recommendations. These businesses included: casinos, bingo halls, and gaming establishments; performing arts venues; cinemas; indoor sports and recreational facilities; food courts; and racing venues.¹⁸²

70.  In terms of outdoor activities, on 30 March 2020 all recreational outdoor amenities were closed by the province.¹⁸³ This included outdoor playgrounds, play structures, and equipment; outdoor sports facilities and multi-use fields; off-leash dog areas; all sections of parks and recreational areas with outdoor fitness equipment; all outdoor allotment and community gardens; and all outdoor picnic sites, benches, and sheltered areas in parks and recreational areas. As the number of Covid-19 cases lessened, these original orders were amended to gradually allow other businesses and outdoor recreational spaces to open, subject to compliance with physical distancing. Specifically, when the province’s health units entered Stage 1 on 19 May, outdoor recreational amenities reopened with the exception of outdoor playgrounds, play structures, and equipment; outdoor pools and splash pads; communal facilities intended to be used by those playing sports; and the areas in parks and recreational areas containing outdoor fitness equipment.¹⁸⁴ On 12 June, health units that entered Stage 2 of reopening were allowed to reopen pools and splashpads.¹⁸⁵ The order requiring outdoor recreational amenities to close was officially revoked on 17 July.¹⁸⁶

71.  On 12 March, Ontario issued an Order pursuant to the Education Act¹⁸⁷ that formally required that all schools across the province close.¹⁸⁸ New Orders were issued to extend the closure of schools in Ontario until the end of the 2019–2020 academic year.¹⁸⁹ Remote learning replaced in-person classes for some students. However, many students received little to no remote learning options at all. While helping to stop the spread of Covid-19, remote learning immediately presented many challenges. Specifically, there has been widespread concern about the rise of mental health issues among children who have been isolated from their peers, about a loss of access to support for children with special needs, and about the lack of accessibility and equity this solution offers to children without reliable internet.¹⁹⁰

72.  When the province of British Columbia issued an Order prohibiting gatherings of more than 50 people on 16 March 2020, most public spaces closed.¹⁹¹ On 17 March, pursuant to the Public Health Act, many non-essential businesses were ordered to close, including pubs, nightclubs, and restaurants and cafes that could not abide by public health distancing orders.¹⁹² The province released a list of essential services on 26 March, and all services not on the list, and those that were ‘unable to meet public health distancing orders were ordered to close’.¹⁹³ Essential businesses and services that remained open and operating included: health services, law enforcement, public safety, first responders, emergency response personnel, vulnerable population service providers, critical infrastructure, food and agriculture service providers, transportation, industry and manufacturing, sanitation, communication and information technology, financial institutions, and other non-health essential service providers. All provincial parks were closed.¹⁹⁴ On 20 March, BC closed all dine-in food services, and on 21 March, all personal-service establishments were ordered to close.¹⁹⁵ On 8 April, ‘all Provincial Parks, Conservancies, Recreation Areas and Ecological Reserves established or continued under the Parks Act, the Protected Areas of British Columbia Act, or protected areas established under provisions of the Environment and Land Use Act’ were ordered to close.¹⁹⁶

73.  On 14 May 2020, parks that could allow physical distancing were allowed to reopen.¹⁹⁷ When Phase 2 began on 19 May, businesses and facilities that were allowed to reopen included: the retail sector, beauty sector, in-person counselling, restaurants and cafes, museums and art galleries, office-based worksites, outdoor spaces, and childcare. These businesses and facilities were required to follow public health protocols. ¹⁹⁸ Provincial parks reopened on 1 June.¹⁹⁹

74.  When Phase 3 began on 24 June, businesses and facilities that reopened included: hotels and resorts, parks and overnight camping, the film industry, movie theaters, and symphonies.²⁰⁰

75.  On 17 March 2020, the Minister of Education directed all schools in the province to close in response to the direction of the Provincial Health Officer.²⁰¹ British Columbia then released a five-stage approach to reopening schools and resuming in-person teaching. Stage 5 was no in-person instruction and all learning happening online. Stage 4 allowed in-person instruction for the children of essential service workers, students with disabilities, and children requiring additional support. On 1 June, the reopening of elementary and secondary schools transitioned to Stage 3 where all children were allowed to voluntarily return to in-person learning on alternating days. To reopen, schools needed to create and submit health and safety plans to the province. In addition, students and staff were required to wash their hands upon arrival to school, they were required to conduct a daily health assessment to determine if they feel unwell, and they have the option of wearing personal protective equipment while in class.²⁰² At Stage 2, in-person earning would recommence, albeit with limited group sizes. Stage 1, set to coincide with Phase 4 of reopening, would see a return to normal classes, with no limits on group size.

76.  Beginning 4 April 2020, under a regulation issued pursuant to Ontario’s Emergency Management and Civil Protection Act, those responsible for a business/facility that is allowed to be open must ensure that their business/facility complies with the provincial physical distancing recommendation. To do this they must make it possible for those inside the business/facility to stay at least two metres apart from those not in their household.²⁰³

77.  On 7 March 2020, British Columbia’s provincial government recommended to the public to practice physical distancing and to avoid in-person gatherings if possible.²⁰⁴ Under an Order pursuant to British Columbia’s Public Health Act, the owners and operations of premises in which food and drink are served are responsible for ensuring patrons can maintain a distance of two metres from those not in their household, unless they are separated by a physical barrier.²⁰⁵ Further, the managers of vending markets (also known as Farmer’s Markets) are required to encourage patrons to maintain two metres of distance with those not in their households and to post signs reminding patrons to physically distance from one another.²⁰⁶

78.  To date, many regions in Ontario require the use of face coverings in public spaces. This issue has largely been left to municipalities, however in at least once instance a public health unit took responsibility. The public health unit responsible for Kingston issued an Order, pursuant to the Ontario Health Protection and Promotion Act, requiring that individuals on public transit must wear a face covering and indoor commercial establishments open to the public are required to prohibit persons without face coverings from entering their establishment, as of 27 June 2020. Businesses can be fined up to $5,000 CAD per day for failing to enforce this order.²⁰⁷ In Toronto a temporary bylaw came into force on 7 July, pursuant to the City of Toronto Act,²⁰⁸ making businesses liable up to a $1,000 CAD fine per day for failing to enforce the face covering requirement.²⁰⁹ On 15 July Ottawa also passed a temporary bylaw, ²¹⁰ pursuant to the Municipal Act 2001.²¹¹ This bylaw requires the use of face masks in enclosed public spaces, including in businesses and on public transit. A person or business who fails to abide by this requirement are liable to a fine of $500–$100,000 CAD each day the offence occurs or continues.²¹² Further, on 20 July a temporary bylaw came into effect in Hamilton,²¹³ requiring face coverings to be worn while in an establishment. A person or business who fails to abide by this requirement can be fined between $10,000–$50,000 CAD.²¹⁴ Kingston, Toronto, Ottawa, and Hamilton’s face covering and face mask requirements are subject to exceptions, including exemptions for young children and individuals with specific medical conditions. Those with medical conditions that make it unsafe for them to wear a mask do not need to provide proof of their medical condition.

79.  In British Columbia it is not mandatory to wear a face covering or face mask. However, the provincial government recommends wearing a face covering or face mask regardless of if you are healthy or sick, and especially if you are caring for someone with Covid-19.²¹⁵

80.  Canada’s division of powers between the federal government and the provinces/ territories means that issuing recommendations, regulations, and orders relating to Covid-19 is a shared responsibility between the federal and provincial governments. The federal government has jurisdiction over quarantine—quarantining requires that the individual stays home and monitors themselves for symptoms, that they avoid all contact with other people, and that they practice physical distancing from others in their home²¹⁶—at its international borders, but it is not clear, even with the use of emergency powers, whether it can issue orders with respect to quarantine within provincial borders.²¹⁷ Upon entry to Canada, the federal government requires individuals to quarantine for two weeks. If found guilty, the penalty for non-compliance is a fine of up to $750,000 CAD and/or imprisonment up to six months. Further, ‘a person who causes a risk of imminent death or serious bodily harm to another person while wilfully or recklessly contravening this Act or the regulations could be liable for a fine of up to $1,000,000 [CAD] or to imprisonment of up to three years, or to both.’²¹⁸ Unlike countries like New Zealand or Australia where quarantine occurs in government-run facilities, returning Canadians or visitors can quarantine in their home or wherever they choose, providing a lot of opportunity for quarantine rules to be broken.

81.  The Public Health Agency, a federal organization, has made multiple recommendations regarding quarantine for individuals exposed to Covid-19, yet these have cultural and persuasive force and no legal teeth.

82.  At the provincial level, under Ontario’s Health Protection and Promotion Act, a medical health officer can order a person with a communicable disease to isolate themselves and remain in isolation from other persons. A person guilty of an offence under this Act is liable of a fine up to $5,000 CAD for every day the offence occurs or continues.²¹⁹ Public health units have discretion in deciding whether or not to instruct their medical health officers to enforce self-isolation and quarantine for those who test positive for Covid-19, those who have symptoms of Covid-19 and who are waiting for test results, or those who have come in close contact with a positive case of Covid-19 or an individual with symptoms. For example, on 23 July 2020 the health unit covering Oxford County, Elgin County, and the City of St. Thomas issued an Order authorizing the health unit to ‘enforce individual compliance with public health instructions’ to, among other things, self-isolate or quarantine in specific situations.²²⁰

83.  In addition, pursuant to British Columbia’s Public Health Act, the provincial government issued an Order requiring those who return to the province after travelling internationally to self-isolate and remain in their home or a hotel except to undertake essential errands, such as to get food and medication, if it is not possible for someone to deliver them to you. If those undertaking essential errands develop Covid-19 symptoms while in public, it is required for them to wear a face mask or use a face covering and they must immediately return to their home and hotel. The Order also required returning international travelers to submit to medical tests as considered necessary to control the spread of Covid-19. Essential workers are exempt from this provincial Order requiring self-isolation upon returning from international travel. However, essential workers must abide by other requirements including self-monitoring for symptoms, avoiding contact with others when traveling to and from work, avoiding unnecessary visits to public spaces, self-isolating at home when they are not required at work, self-isolating for 14 days if they develop symptoms, and submitting to medical tests as needed.²²¹

84.  The overall sufficiency of testing has varied by province. In the early months of the pandemic, Ontario ranked near the bottom of the provinces in testing per 100,000—despite having the country’s second highest case rate.²²² Throughout the pandemic, various factors have been cited for shortcomings in testing: a lack of lab capacity, a shortage of key supplies (eg reagents), and tightened criteria for testing as case numbers rose, ie targeting testing at individuals with symptoms or exposure to the disease.

85.  Mandatory testing has been ordered only in limited contexts. Effective from 15 March 2021, pursuant to Ontario’s Long-Term Care Homes Act 2007 long-term care homes are required to perform rapid antigen tests on staff, student placements, volunteers, caregivers, support workers, and visitors;²²³ those entering occasionally must be tested on the day, while those visiting more regularly can be tested every other day.²²⁴ On 29 January 2021, in response to new variants, Ontario also announced and ordered, under the Health Protection and Promotion Act, that international travellers arriving by air must undergo mandatory testing, or face a $750 CAD fine. This requirement was introduced to fill a gap as the federal government implemented its own requirements that all travellers entering Canada (regardless of citizenship) provide a negative test result taken within 72 hours of entry. Visitors are then required to take another test before leaving the airport, and then perform a home test on day 10 of mandatory quarantine.²²⁵

86.  Canada lacks a domestic capacity for vaccine production and has faced challenges in securing an adequate and timely supply of vaccines from abroad. As of 29 March 2021, Canada had administered only 14 doses per 100 people, giving the country a ranking of 45^th internationally.²²⁶ Available doses have been prioritized for workers and residents in long-term care facilities, older Canadians (starting at age 80+ and decreasing the age requirement over time in five year increments), health care workers, and adults in Indigenous communities where infection can have disproportionate consequences.²²⁷ Vaccination has not been made mandatory in any settings to date.

87.  The Federal government has funded the development of a notification app called ‘COVID Alert’. In addition to various branches of the federal government, the app was developed in collaboration with Google, Apple, Shopify, and Blackberry.²²⁸ The Government has also appointed a Covid-19 Exposure Notification App Advisory Council ‘that will ensure the app meets the highest standards in public health outcomes, technology, and privacy.’²²⁹

88.  This app can be downloaded by Canadians and will allow those ‘who test positive for Covid-19 the option of anonymously alerting all other app users who have been close contacts in the last 14 days’.²³⁰ This app is being piloted in Ontario and then released nationwide.²³¹ Its use is purely voluntary and data is anonymized. As of 28 March 2021, the app has 6,422,021 downloads.²³²

89.  At the provincial level, Ontario issued guidance to public health units to ensure consistent and effective contact tracing. Within 24 hours after a positive case is identified, the public health unit is responsible for contacting all individuals who came in close contact with the positive case. The public health unit is required to direct the individuals who came in contact with the positive case to self-isolate for 14 days. During this period, the public health unit will follow up with these individuals and when appropriate, it will also strongly recommend the individuals get tested for Covid-19.²³³

90.  In British Columbia, when a positive case of Covid-19 is identified they are interviewed by a public health nurse to determine who they have been in contact with. A member of BC’s public health team then gets in touch with the individuals who have come in contact with the confirmed Covid-19 case. If the contact has symptoms, they will be sent for testing and if they have no symptoms, they will be asked to self-isolate for 14 days after their last contact with the case.²³⁴ In addition, under an Order pursuant to British Columbia’s Public Health Act, the owners and operations of premises in which food and drink are served are required to collect the name and telephone numbers or email addresses of patrons and keep this information for 30 days in the event of a need for contact tracing.²³⁵

91.  Ontario has been critiqued for its slow response to Covid-19 in that it failed to test a sufficient portion of its population for the virus in the early days.²³⁶ For example, by 1 April 2020 Ontario had completed 57,874 tests (0.4% of its population) and British Columbia had done 44,639 tests (1.75% of its population). ²³⁷ By 1 May, Ontario had tested 294,054 people, while British Columbia had tested 88,670 people, amounting to 2.02% and 1.75% of their populations respectively.²³⁸ While Ontario eventually augmented its testing rates, the province’s initial insufficient level of testing meant that not all of those with the virus in the early stages of the pandemic were identified and contact tracing was not nearly as effective as it could have been.²³⁹

92.  On 13 March 2020, Ontario’s Chief Medical Officer of Health recommended that long-term care homes, retirement homes, and other congregate care settings prohibit non-essential visitors.²⁴⁰ On 8 April, pursuant to the Long-Term Care Homes Act and the Health Protection and Promotion Act, Ontario’s Chief Medical Officer of Health issued a directive for long-term care homes to begin screening staff, essential visitors, and residents twice daily for Covid-19 symptoms. Further, the directive states that staff and essential visitors must wear surgical/ procedure masks for the duration of their time in the long-term care home.²⁴¹ On 10 June, pursuant to the Long-Term Care Homes Act and the Health Protection and Promotion Act, Ontario issued a directive requiring that all staff, visitors, and those entering long-term care homes in Ontario need to be screened for Covid-19 symptoms and temperature checks.²⁴² Still only essential visitors were allowed in homes with a Covid-19 outbreak or in homes with a resident that is self-isolating or symptomatic. ‘Essential visitors include those visiting a very ill or palliative resident or performing essential health or support care services for the resident (eg deliveries, laboratory and therapy).’²⁴³ As of 18 June, non-essential visitors were formally permitted to resume visits to long-term care homes.²⁴⁴ Long-term care homes are required to set policies concerning non-essential visitors that align with Ontario’s guidance, including that non-essential visitors must be provided with PPE.²⁴⁵ Visitors are allowed to visit on the condition that they pass the symptom screening test, that they can attest they tested negative for Covid-19 within the previous 2 weeks and they received no subsequent positive test result, and that they follow proper protocols while visiting, including wearing a face covering.²⁴⁶

93.  On 26 March 2020, pursuant to British Columbia’s Public Health Act, the province issued an Order requiring that the operations of long-term care facilities, private hospitals, assisted living residences, and designated hospitals provide the Provincial Health Officer with the names, contact information, and Social Insurance Numbers of staff. Contractors and sub-contractors who provide staffing for these facilities must provide the same information. This information was requested to support the Provincial Health Officer in making decisions about the allocation of staff in these facilities to limit the spread of Covid-19.²⁴⁷ Physicians, resident physicians, nurse practitioners, paramedics, delivery persons, trades people, visitors, and others are exempt.²⁴⁸ On 10 April, the Minister of Public Safety and Solicitor General issued an Order, pursuant to the Emergency Program Act, allowing health officers to make a single site order of a specified health care employer and its staff. This allows a health officer, under the Public Health Act, to require a health care employer to restrict staff so that they only work at one health care facility, or to require a health care employer to direct staff to work at a specific facility, as assigned to by a health officer, or to not permit staff to work at a facility they have not been assigned to. The health officer can also require staff to comply with a direction to work at an assigned facility.²⁴⁹

94.  Before 30 June 2020, only essential visitors were allowed in long-term care homes in British Columbia—this includes compassionate care and visits that are vital the resident’s wellbeing.²⁵⁰ On 30 June, British Columbia announced that it would allow one family or social visitor per long-term care resident for the month of July, with a reassessment of visitor restrictions coming in August. Furthermore, residents are allowed one essential visitor at a time. The Health Authority or Facility staff have the discretion to determine if a visit is essential. Visitors are screened for Covid-19 symptoms prior to visiting by answering a series of questions concerning whether they have Covid-19 symptoms and when visiting they are required to wear a face mask and practice physical distancing.²⁵¹

95.  The enforcement of Canada’s Covid-19 response involves cooperation by various levels of government. For example, under the federal Contraventions Act,²⁵² the Royal Canadian Mounted Police, as well as local and provincial police forces, were given the power to enforce the Quarantine Act and can issue tickets ranging from $275 to $1000 CAD to those who do not comply.²⁵³ In the event that a border agent believes the returning traveler might fail to comply with the mandatory isolation, the agent can alert the Public Health Agency of Canada (PHAC), which will ask police to follow-up with the traveler. As of 9 July 2020, the PHAC has sent 21,422 referrals for follow-ups, the vast majority of which did not require physical checks by police, with phone, text, or email checks by the PHAC sufficing. Across Canada, as of 15 July, there have been no arrests that have stemmed from physical checks, but nine tickets with fines ranging from $400 to $1000 CAD²⁵⁴ have been issued for failure to comply with the mandatory quarantine.²⁵⁵ Further, as mentioned in Part IV.A.2 above, if found guilty for violating a mandatory quarantine, an individual can be fined of up to CAD $750,000 and/or receive six months in prison. An individual can face an additional fine of up to $1,000,000 and/or imprisonment of up to three years if they are found guilty of causing ‘a risk of imminent death or seriously bodily harm to another person while willfully or recklessly contravening this act or the regulations.’²⁵⁶

96.  As previously mentioned, Ontario businesses and some individuals can be fined for failing to enforce or wear a face covering in indoor public spaces. However, media reports have highlighted how municipalities have failed to offer sufficient guidance to businesses to help their effectively enforcement of face covering bylaws and the Premier of Ontario has stated that the ‘province lacks the capacity to enforce mask bylaws’.²⁵⁷

97.  Finally, individuals and businesses can be fined and can face imprisonment if they are convicted for charging an unconscionable price (ie that ‘grossly exceeds’ standard pricing) for an essential good. Specifically, on 27 March 2020, under a regulation pursuant to Ontario’s Emergency Management and Civil Protection Act, the province prohibited retail businesses from charging unconscionable prices for the sale of necessary goods. Necessary goods include: masks and gloves that are used as personal protective equipment, non-prescriptive medications being used to treat symptoms of the coronavirus, disinfecting agents, and personal hygiene products.²⁵⁸ If an individual fails to comply with this regulation and is convicted, they could face a fine of up to $100,000 CAD and up to one year in prison; if the convicted person is a director or officer of a corporation, they could face a fine of up to $500,000 CAD and up to one year in prison. If a corporation is convicted, it can be fined up to $10,000,000 CAD.²⁵⁹

98.  In British Columbia, failure to adhere to the 50-person limit on social gatherings is an offence under the Public Health Act, and can result in a fine of up to $25,000 CAD or imprisonment up to six months, or both. The owner or operator of a place is also liable under the Public Health Act if they host an event and there is insufficient space for patrons to maintain a distance of two metres from one another.²⁶⁰ On 21 August 2020, pursuant to the Emergency Program Act, the Minister of Public Safety and Solicitor General enacted measures through which ‘police and other provincial enforcement officers are being given the ability to issue $2,000 violation tickets for owners or organizers contravening the provincial health officer’s (PHO) order on gatherings and events.’²⁶¹ As of 12 September, 14 tickets for violating Orders relating to events and gatherings have been issued by officers.²⁶²

99.  Under an Order pursuant to British Columbia’s Emergency Program Act, the province prohibited retail businesses from charging unconscionable prices for the sale of essential goods. Essential goods include: food, water, and other beverages; fuel and gasoline; health care goods, pharmaceuticals, and medical supplies; as well as personal hygiene, sanitation, and cleaning goods.²⁶³ A person who contravenes the Act is liable to a fine of up to $10,000 CAD, imprisonment of up to one year, or both.²⁶⁴ On 20 April 2020, pursuant to the Emergency Program Act, the Minister of Public Safety and Solicitor General enacted measures giving ‘police and other enforcement officers the ability to issue $2,000 CAD violation tickets for price gouging and the reselling of medical supplies and other essential goods during the ongoing Covid-19 pandemic.’²⁶⁵

100.  On 15 April 2020, the military’s (Canadian Armed Forces) assistance was requested in long-term care homes in Ontario and Quebec. In Ontario, approximately 500 members of the Canadian military were deployed starting on 28 April. They assisted at seven of the long-term care homes that experienced the most severe Covid-19 outbreaks, all in the Greater Toronto Area.²⁶⁶ The military assisted with day-to-day operations in the facilities, as well as infection control and prevention. Their deployment to long-term care homes in the province was followed-up by a report on the conditions they witnessed in these facilities. In Quebec, the military assisted in 47 long-term care homes and they also wrote a report.²⁶⁷ The report, published in May 2020, details many ‘medical professional and technical issues’ present in the homes, including medical supplies being reused after their sterility has been compromised, the use of expired medication, a massive lack of medical supplies, overworked and untrained staff, aggressive and abusive staff behaviour towards patients, forceful feeding of patients, and patients being left soiled and/or without a bath for extended periods of time.²⁶⁸

101.  Further, the Canadian Armed Forces have been assisting the Public Health Agency of Canada with warehouse management of personal protection equipment. From 16 April–26 June 2020 they also assisted Public Health Ontario by conducting contact tracing phone calls and reporting.²⁶⁹

102.  Little data is available concerning Canadian compliance with Covid-19 restrictions. However, according to public opinion data collected by a national research organization in August 2020, 18% of Canadians were classified as ‘cyclical spreaders’ meaning that they disregard most or all Covid-19 safety precautions. Some 36% of Canadians were ‘inconsistent’, strictly adhering to hygiene and social distancing recommendations, however only loosely following recommendations concerning not traveling and restricting social circles. In contrast, 47% of Canadians were classified as ‘infection fighters’ who strictly adhered to Covid-19 safety protocols and recommendations.²⁷⁰

Prof. Colleen M. Flood, University of Ottawa, University Research Chair in Health Law & Policy

Bryan Thomas, Research Associate and Adjunct Professor, Center for Health Law, Policy & Ethics, University of Ottawa