Emergency measures and emergency management at the federal level in Canada are regulated by the Emergency Act and the Emergency Management Act. However, there is a relatively high trigger for the federal government to take the lead in a health emergency. Therefore, most health emergencies or crises are dealt with at the municipal and provincial level in coordination with the federal government. Most provinces and territories have passed various “health acts” that govern the powers and duties of health officials during a health emergency.
I. Structure of Public Health Crisis Management System
Legislative competence in relation to public health matters is shared by all levels of government in Canada. The Constitution Act, 1867, which defines much of the structure and operations of the Government of Canada, “does not explicitly include ‘health’ as a legislative power assigned either to Parliament (in section 91) or to the provincial legislatures (in section 92).”
In the 1982 case of Schneider v. The Queen, the Supreme Court of Canada stated that
“health” is not a matter which is subject to specific constitutional assignment but instead is an amorphous topic which can be addressed by valid federal or provincial legislation, depending in the circumstances of each case on the nature or scope of the health problem in question.
Under Section 91 of Canada’s Constitution Act, the federal government derives its jurisdiction to directly or indirectly regulate on public health-related issues principally from its powers to legislate on
- quarantine and the establishment and maintenance of marine hospitals;
- criminal matters;
- public debt and property;
- taxing powers;
- power to pass laws for the peace, order, and good government of Canada; and
- census and statistics matters.
Section 92 of the Act assigns responsibility to the provinces and territories for
- matters relating to the establishment, maintenance, and management of hospitals, asylums, charities, and charitable institutions;
- matters in their province of a local or private nature; and
- municipal institutions.6
As stated by the Standing Senate Committee on Social Affairs, Science, and Technology, “[d]ue to this lack of clarity in the constitutional division of powers in relation to health and public health, both levels of government may legislate in these areas.”
Canada’s public health emergency management system has been described as a “bottom up system,” where the “initial and ongoing responsibility for investigation and response to public health events, including infectious disease outbreaks, occurs at the local/municipal level.” Therefore, “depending on the severity, complexity, extent and nature of the public health issue, provincial, territorial and federal systems may be engaged to provide assistance and resources as requested and/or required by local authorities and facilities managing the situation.” All levels of government have various forms of legislation to protect and manage public health in a time of crisis.
A. Federal Laws
At the federal level, the Public Health Agency of Canada (PHAC) is primarily responsible for the promotion of health, prevention and control of chronic diseases, prevention and control of infectious diseases, and preparation and response to public health emergencies. The PHAC operates under the Minister of Health and Health Canada. It was established by the 2006 Public Health Agency of Canada Act “for the purpose of assisting the Minister of Health in exercising or performing the Minister’s powers, duties and functions in relation to public health.” This statute also established the office of the Chief Public Health Officer “and the related powers, duties and functions.”
Federal legislation also mandates public health surveillance activities under the Department of Health Act, the Public Health Agency of Canada Act, and the Statistics Act. The Department of Health Act gives the Minister of Health “the power, subject to the Statistics Act, to collect, analyze, interpret, publish and distribute information related to public health.”
The federal government’s power to act in a public health emergency is largely governed by two pieces of legislation: the Emergencies Actand the Emergency Management Act.The Emergencies Act gives the government of Canada the authority to “invoke exceptional yet incident-specific powers to deal with emergencies,” including public welfare emergencies. The Emergency Management Act “sets out the leadership role and responsibilities of the Minister of Public Safety and Emergency Preparedness, including “coordinating emergency management activities among government institutions and in cooperation with the provinces and other entities.”
The federal government works in collaboration with provinces and territories “to support communities when disasters strike.” According to the website of Public Safety Canada, “[t]o this end, An Emergency Management Framework for Canada was revised and approved by Federal/Provincial/Territorial Ministers in 2011. The Framework establishes a common approach for a range of collaborative emergency management initiatives in support of safe and resilient communities.” The Framework divides emergency management into four interdependent components, which are meant to provide greater clarity of risks “and contribute to a safer, prosperous, sustainable, disaster resilient society in Canada.” The components, as explained in the Framework, include the following:
- Prevention and Mitigation – to eliminate or reduce the risks of disasters in order to protect lives, property, the environment, and reduce economic disruption. Prevention/mitigation includes structural mitigative measures (e.g. construction of floodways and dykes) and non-structural mitigative measures (e.g. building codes, land-use planning, and insurance incentives). Prevention and mitigation may be considered independently or one may include the other.
- Preparedness – to be ready to respond to a disaster and manage its consequences through measures taken prior to an event, for example emergency response plans, mutual assistance agreements, resource inventories and training, equipment and exercise programs.
- Response – to act during or immediately before or after a disaster to manage its consequences through, for example, emergency public communication, search and rescue, emergency medical assistance and evacuation to minimize suffering and losses associated with disasters.
- Recovery – to repair or restore conditions to an acceptable level through measures taken after a disaster, for example return of evacuees, trauma counseling, reconstruction, economic impact studies and financial assistance. There is a strong relationship between long-term sustainable recovery and prevention and mitigation of future disasters. Recovery efforts should be conducted with a view towards disaster risk reduction.
Canada’s federal legislation also includes the Quarantine Act, the purpose of which is “to protect public health by taking comprehensive measures to prevent the introduction and spread of communicable diseases.” The Canada Border Services Agency (CBSA) assists the PHAC in the administration of the Quarantine Act and the Quarantine Regulations. The Act is by and large a border-control statute that is applied at entry and departure points.
B. Provincial Laws
Public health activities, including public health crisis management at the provincial and territorial levels, are governed by Public Health Acts (or their equivalent) and related regulations. These Acts usually have provisions on reporting requirements, prevention, inspection powers, emergency measures, and the powers and duties of health officials.
Provinces and territories also have Emergency Management Acts in their respective jurisdictions that provide the legal basis for establishing emergency management organizations (EMOs) and creating provincial/territorial-level emergency management plans to help coordinate a provincial response to an emergency.
II. Powers of Public Health Authorities
1. Emergency Powers
At the federal level, the Emergencies Act authorizes the government of Canada to take special temporary measures through a declaration of a “public welfare emergency,” which the Act defines as an emergency caused by a real or imminent disease in human beings, animals, or plants (among others) “that results or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency.” However, the federal government’s power to issue a declaration of a public welfare emergency can only be triggered after a relatively high threshold is met. According to the Act,
[t]he Governor in Council may not issue a declaration of a public welfare emergency where the direct effects of the emergency are confined to, or occur principally in, one province unless the lieutenant governor in council of the province has indicated to the Governor in Council that the emergency exceeds the capacity or authority of the province to deal with it.
Therefore, it has been argued that the Emergencies Act essentially “restrains, even denies, federal statutory authority to tackle a disease outbreak while it remains small, manageable, and confined to one province. Rather, federal authority begins only once the outbreak has spread, reaching the out-of-control quality of an epidemic.”
While an emergency declaration is in effect, the government has the power to issue orders and regulations on the following matters:
- (a) the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals;
- (b) the evacuation of persons and the removal of personal property from any specified area and the making of arrangements for the adequate care and protection of the persons and property;
- (c) the requisition, use or disposition of property;
- (d) the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered;
- (e) the regulation of the distribution and availability of essential goods, services and resources;
- (f) the authorization and making of emergency payments;
- (g) the establishment of emergency shelters and hospitals;
- (h) the assessment of damage to any works or undertakings and the repair, replacement or restoration thereof;
- (i) the assessment of damage to the environment and the elimination or alleviation of the damage, and
- (j) the imposition [of fines] for contravention of any order or regulation made under this section.
The Quarantine Act “authorizes the Minister of Health to establish quarantine stations and quarantine facilities anywhere in Canada, and to designate various officers, including quarantine officers, environmental health officers, and screening officers.” The Act also “authorizes measures that can be taken in respect of international travellers, or other persons at an entry or departure point, who have or might have a communicable disease (one that poses a risk of significant harm to public health).” It also authorizes procedures “that can be taken in respect of conveyances arriving in or departing from Canada, and cargo on those conveyances, which could be the source of a communicable disease.”
B. Provincial Powers
1. Emergency Powers
Given the limitations on the federal government to deal with health-related emergencies, responsibility for this matter is largely left to the provinces. All the provinces and territories have their own legislation dealing with emergencies and emergency management. While “[t]here is considerable variation among the provinces and territories with respect to the content, provisions, and the limits of authority defined in the respective legislation,” the laws are more or less the same in terms of powers and organizational structure. For example, they empower “the province or territory, municipalities, individuals, private corporations and/or organizations to formulate emergency plans to prepare for and respond to emergencies or disasters.” Other common features of these laws include provisions
- establishing Emergency Management Organizations with assigned powers and duties,
- defining the roles and responsibilities of municipalities and their relationship with the provinces,
- providing “extraordinary power to local government if required,”
- in some jurisdictions requiring local governments “to create and maintain an emergency measures/management organization and program/plan,”
- enabling “provision of Disaster Financial Assistance to victims of all disasters,” and
- “provid[ing] exemption from civil liability to all emergency service workers.”
2. Quarantine and Other Powers
Health officials in the provinces and territories have extensive powers under various “health acts” to protect the public against pandemics and public health emergencies. For example, section 22 of Ontario’s Health Protection and Promotion Act provides that a medical officer of health may, through a written order, “require a person to take or to refrain from taking any action that is specified in the order in respect of a communicable disease” if this officer has “reasonable and probable grounds” to believe
- (a) that a communicable disease exists or may exist or that there is an immediate risk of an outbreak of a communicable disease in the health unit served by the medical officer of health;
- (b) that the communicable disease presents a risk to the health of persons in the health unit served by the medical officer of health; and
- (c) that the requirements specified in the order are necessary in order to decrease or eliminate the risk to health presented by the communicable disease.
Such an order can include, but is not limited to,
- (a) requiring the owner or occupier of premises to close the premises or a specific part of the premises;
- (b) requiring the placarding of premises to give notice of an order requiring the closing of the premises;
- (c) requiring any person that the order states has or may have a communicable disease or is or may be infected with an agent of a communicable disease to isolate himself or herself and remain in isolation from other persons;
- (d) requiring the cleaning or disinfecting, or both, of the premises or the thing specified in the order;
- (e) requiring the destruction of the matter or thing specified in the order;
- (f) requiring the person to whom the order is directed to submit to an examination by a physician and to deliver to the medical officer of health a report by the physician as to whether or not the person has a communicable disease or is or is not infected with an agent of a communicable disease;
- (g) requiring the person to whom the order is directed in respect of a communicable disease that is a virulent disease to place himself or herself forthwith under the care and treatment of a physician;
- (h) requiring the person to whom the order is directed to conduct himself or herself in such a manner as not to expose another person to infection.
In British Columbia, similar protective measures are stipulated under the province’s Public Health Act, which includes “quarantine and isolation measures, and closures of public places to help prevent the spread of a disease or health hazard.” Under the Act, medical health officers are “empowered to quarantine and isolate individuals who pose a significant risk of spreading serious communicable diseases to others.” The Act also allows a quarantine order to be made to a group of people “to expedite the prevention of disease.” Medical health officers “can have a person who is spreading disease detained until a court order can be obtained, or during a wide spread emergency, the Provincial Health Officer can take command of directing the public health response.”
III. Transparency of Public Health Crisis Management System
In the Emergency Management Framework for Canada, the federal, provincial, and territorial governments agreed to the principle of maintaining “clear communications” with the “aim to be as open as possible regarding the work each does in emergency management.” The Framework states that, prior to an emergency, emphasis must be on public education in respect to emergency management in order to “enhance awareness of hazards, risks and vulnerabilities; strengthen prevention, mitigation and preparedness measures; and provide information on all aspects of emergency management.” Communications during and after an emergency must explain the necessary “response actions” in order to “minimize impacts and to maintain safety and security.”
The independent SARs Commission report, which investigated the 2003 outbreak of SARs in Ontario, criticized the “lack of transparency in the adjudication system” during the outbreak and concluded that the lack of transparency “led to confusion over roles and responsibilities” of local Medical Officers of Health in the case review of new probable cases of the disease.
IV. Cooperation with the World Health Organization (WHO)
Canada is a member of WHO and is therefore bound by the International Health Regulations (2005) (IHR). Health Canada “leads Canada’s relationship with WHO, while the Department of Foreign Affairs, Trade and Development (DFATD) provides Canada’s assessed contribution—about [Can]$14 million [approximately US$12.34 million] per year.” The PHAC operates as “the focal point for coordinating the implementation of the IHR in Canada.”
According to the DFATD website, “Canada works closely with WHO to reduce global diseases such as polio, HIV/AIDS, tuberculosis and malaria, and to improve maternal, newborn and child health including nutrition.” The website also states that Canada is a strong supporter of WHO initiatives, such as the Global Polio Eradication Initiative, the Stop TB Partnership, and the Partnership for Maternal, Newborn and Child Health.
Canada also works with WHO to “support national health programs such as those in Haiti and the Polio Eradication Signature Project in Afghanistan and with WHO’s regional offices such as the Pan American Health Organization.”
There are twenty-six WHO Collaborating Centres operating in Canada.
V. Recent Developments
As of the date of this report there have been no instances of persons with the Ebola virus in Canada. The PHAC has stated that it is working with all levels of government to prevent the disease from spreading in the country. Canadian health authorities have also stated that they have taken the following steps:
- “[E]nforcing the Quarantine Act at all international points of entry into Canada. This will help us to identify any sick travellers arriving, and to apply public health measures as appropriate.”
- The National Microbiology Laboratory in Winnipeg and provincial laboratories are ready to detect the virus and respond quickly. Experts at Quebec’s lab are able to diagnose Ebola and labs in British Columbia, Alberta, Ontario, and Nova Scotia will be next.
- Canadian hospitals “have infection control systems to limit the spread of infection and protect health-care workers.”
In early October 2014, the federal Health Minister announced that the government would be taking the additional step of taking “targeted temperature” screenings at Canadian airports. The PHAC also increased the number of staff “at Canadian airports to help with the screening of travelers from Ebola-affected regions.” On October 30, 2014, the Canadian federal government announced that it was “suspending visa applications for residents and nationals of countries with ‘widespread and persistent-intense transmission’ of Ebola virus disease.”
Prepared by Tariq Ahmad
Legal Research Analyst
 Background, Public Health Agency of Canada (PHAC), http://www.phac-aspc.gc.ca/about_apropos/back-cont-eng.php (last updated Oct. 9, 2014).
 Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), §§ 91, 92, http://laws-lois.justice.gc.ca/eng/const/page-1.html.
 Martha Butler & Marlisa Tiedemann, Library of Parliament, Legal and Social Affairs Division, The Federal Role in Health and Health Care § 1, Pub. No. 2011-91-E (Sept. 2011; revised Sept. 2013), http://www.parl.gc.ca/ Content/LOP/ResearchPublications/2011-91-e.htm.
 Constitution Act, 1867, § 91.
 Id. § 92.
 Standing Senate Committee on Social Affairs, Science, and Technology, Canada’s Response to the 2009 H1N1 Influenza Pandemic (Dec. 2010), http://www.parl.gc.ca/content/sen/committee/403/soci/rep/ rep15dec10-e.pdf.
 Responding to an Infectious Disease Outbreak: Progress Between SARS and Pandemic Influenza H1N1, PHAC, http://www.phac-aspc.gc.ca/ep-mu/rido-iemi/index-eng.php#in (last updated Apr. 11, 2012).
 Mandate, PHAC, http://www.phac-aspc.gc.ca/about_apropos/what-eng.php (last updated June 16, 2011).
 Public Health Agency of Canada Act, S.C. 2006, c. 5, http://lois-laws.justice.gc.ca/eng/acts/P-29.5/FullText.html.
 List of Acts and Regulations, PHAC, http://www.phac-aspc.gc.ca/about_ apropos/act-reg-lois/list-liste-eng.php (last updated May 7, 2013).
 Evaluation Directorate, Public Health Agency of Canada/Health Canada, Evaluation of the Surveillance Function at the Public Health Agency of Canada, App. F. Federal, Provincial and Territorial Authorities for Public Health Surveillance, (Jan. 14, 2013), http://www.phac-aspc.gc.ca/about_apropos/ evaluation/reports-rapports/2012-2013/sf-fs/app-ann-f-eng.php.
 Emergencies Act, Alberta Municipal Affairs, http://apsts.alberta.ca/online-courses/bem/chapter-4-legislation/federal-legislation/emergencies-act/ (last visited Nov. 13, 2014).
 Emergency Management, Public Safety Canada, http://www.publicsafety.gc.ca/cnt/mrgnc-mngmnt/index-eng.aspx (last updated Mar. 4, 2014).
 Public Safety Canada, An Emergency Management Framework for Canada (2d ed. Jan. 2011), http://www.public safety.gc.ca/cnt/rsrcs/pblctns/mrgnc-mngmnt-frmwrk/index-eng.aspx.
 Quarantine Act, S.C. 2005, c. 20, http://laws-lois.justice.gc.ca/eng/acts/Q-1.1/FullText.html.
 Id. § 4.
 Canadian Border Services Agency, Memorandum D19-9-3 (Jan. 16, 2009), http://www.cbsa-asfc.gc.ca/ publications/dm-md/d19/d19-9-3-eng.html.
 Emergency Management Ontario Ministry of Community Safety and Correctional Services, Province of Ontario Emergency Response Plan (2008), http://www.emergencymanagementontario. ca/english/emcommunity/response_resources/plans/provinicial_emergency_response_plan.html.
 Emergencies Act § 5. Section 3 defines a “national emergency”as “an urgent and critical situation of a temporary nature that”: “(a) 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, or (b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada.” Id. § 3.
 Id. § 14(2). “Governor in Council” is another phrase for the Federal Cabinet.
 Amir Attaran & Kumanan Wilson, A Legal and Epidemiological Justification for Federal Authority in Public Health Emergencies, 52 McGill L.J. 381, 385 (2007), http://lawjournal.mcgill.ca/userfiles/other/5670367-1219616683_Attaran__Wilson.pdf.
 Emergencies Act § 8(1).
 List of Acts and Regulations, PHAC, supra note 13.
 John Lindsay, Emergency Management in Canada: Near Misses and Moving Targets, https://www.training. fema.gov/emiweb/edu/Comparative%20EM%20Book%20-%20Chapter%20-%20Emergency%20 Management%20in%20Canada%20-%20Near%20Misses%20and%20Moving%20Targets.doc (last visited Nov. 28, 2014).
 Nova Scotia Emergency Management Office, Basic Emergency Management § 1.6.3 (Jan. 2011), http://0-fs01.cito.gov.ns.ca.legcat.gov.ns.ca/deposit/b10645214.pdf.
 Health Protection and Promotion Act, R.S.O. 1990, c. H.7, http://www.e-laws.gov.on.ca/html/statutes/english/ elaws_statutes_90h07_e.htm#BK26.
 Id. § 22(1) & (2).
 Id. § 22(4).
 An Emergency Management Framework for Canada, supra note 23.
 The Honourable Mr. Justice Archie Campbell, The SARS Commission Interim Report: SARS and Public Health in Ontario 50 (Apr. 15, 2004), http://www.health.gov.on.ca/en/common/ministry/publications/ reports/campbell04/campbell04_2.aspx.
 World Health Organization, Foreign Affairs, Trade and Development Canada, http://www.acdi-cida.gc.ca/acdi-cida/acdi-cida.nsf/en/NAD-321114340-LFU (last updated Aug. 1, 2013).
 Responding to an Infectious Disease Outbreak, PHAC, supra note 8.
 Canada’s Response to Ebola, Government of Canada, http://healthycanadians.gc.ca/diseases-conditions-maladies-affections/disease-maladie/ebola/response-reponse-eng.php (last modified Nov. 12, 2014).
 Ebola Preparedness Plan Ready, Canada’s Health Officials Say, CBCnews (Oct. 1, 2014), http://www.cbc.ca/news/health/ebola-preparedness-plan-ready-canada-s-health-officials-say-1.2783655.
 Helen Branswell, Canada to Step Up Border Checks for Ebola, The Canadian Press (Oct. 9, 2014), http://www.cp24.com/news/canada-to-step-up-border-checks-for-ebola-1.2046410#ixzz3HjzdnJio.
 Rob Gillies, Canada Restricts Visas Amid Ebola Scare, Associated Press (Oct. 31, 2014), https://news.yahoo. com/canada-restricts-visas-amid-ebola-scare-213729168.html.
Last Updated: 06/09/2015