ANSWERING IN EMERGENCY: THE LAW AND ACCOUNTABILITY IN CANADA'S PANDEMIC RESPONSE.

• Author: Couture-Menard, Marie-Eve

Introduction I. Enhanced Means of Action Through Emergency Powers A. A Plurality of Approaches to Enhance Means of Action B. Powers Aimed at Mobilizing Human and Material Resources C. Powers Aimed at Preventing the Spread of Communicable Disease D. Powers Allowing Authorities to Act Outside of Usual Processes II. Limited Accountability Through Private Law Litigation A. Protections Granted Through Legislative Immunity B. Court-Imposed Limits to Liability C. Public Health Advantages of Protections Against State Liability III. Limited Accountability for Discretionary Police Enforcement and the Limits of Constitutional Rights Litigation A. Poor Accountability in Policing 1. Poor accountability for distribution and impact of sanctions 2. Poor accountability for efficacy: Uncertainty about the public health value of coercion in context B. Constitutional Rights Review as a Form of Accountability IV. Enhancing State Accountability to Parliaments and Citizens A. Periodic accountability to legislatures when renewing the declaration of a public health emergency B. Periodic Public Reports on Emergency Measures C. Ex post facto Evaluative Public Reports Conclusion Introduction

Throughout humanity's history, epidemics and outbreaks have reinforced the social importance of public health. The COVID-19 pandemic, declared by the World Health Organization on March 11, 2020, (1) is an example of this phenomenon, with wide-reaching social, political, and economic implications. Public health, as Parmet points out, "is not simply a preference or a question of taste. It is a precondition to social life, one of the goods a society must aim for and achieve if it is to survive and attain other ends." (2) To achieve and protect public health, collective action is essential, especially through government intervention. (3) For instance, in combating the COVID-19 pandemic, societies across the globe have allowed governments to exercise extensive emergency powers, which has led to unprecedented measures and responses, including significant restrictions on movement and gatherings. These measures may be taken swiftly, with little (and sometimes no) input from the electorate or from civil society. (4)

Accountability becomes central as interventions to protect some people can detrimentally impact others. Accountability (5) serves many purposes, such as preventing abuses of power and lack of responsiveness, ensuring compliance with procedures, standards and societal values, and improving performance and learning. (6) These purposes are especially important in the context of pandemics, which disproportionately affect vulnerable populations, escalate inequalities, and whose serious and pressing nature may instigate draconian uses of state power.

This paper begins by describing the breadth of public authorities' (7) emergency powers to manage a pandemic, and provides an overview of emergency powers included in public health legislation, as well as the bare ex ante democratic processes that come with the exercise of those emergency powers (I). Next, it assesses avenues for accountability through law--specifically through private, criminal and constitutional law. It argues that accountability through private law litigation is the wrong avenue to pursue in the context of the CO VID-19 pandemic (II). It also suggests that criminal law safeguards and constitutional rights litigation only offer limited accountability (III). Finally, it presents an argument in favour of enhancing public accountability to parliaments and citizens through public health legislation (IV). While these are not the only avenues for accountability through law--administrative review may represent another--common themes in these areas suggest that ex post judicial review of emergency responses, whether in public or private law, are limited by characteristic features of emergencies. In particular, the law in each of these areas leaves government with a relatively wide, though not unlimited, margin of manoeuvre in its pandemic response.

1. Enhanced Means of Action Through Emergency Powers

   Public health protection is carried out each day by Canadian public authorities (at the municipal, provincial and federal levels), through the use of various powers granted by different pieces of legislation. However, extraordinary threats have the potential to cause extraordinary hardships and, therefore, require extraordinary means. Hence, governments at all levels wield a large range of emergency powers included in general emergency legislation or in public health legislation. The COVID-19 pandemic is one such threat, and has triggered the rare use of these exceptional powers throughout the country.

   At its disposal, (8) the federal government has both the Emergencies Act (9) and the Peace Order and Good Government (POGG) power under the Constitution Act. (10) The Emergencies Act allows the federal government to take temporary measures at the national level to ensure safety and security in times of emergency, and the POGG power allows it to temporarily intervene in areas of exclusive provincial jurisdiction in response to a crisis. While the federal government has not invoked either during the COVID-19 crisis, it has adopted many pieces of legislation specific to the pandemic for the safety and well-being of Canadians. These include fiscal and other financial measures and measures regarding access to justice. (11) It has also applied the Quarantine Act (12) to impose testing and quarantine requirements upon travelers. (13)

   For their part, all provinces and territories have utilized their emergency powers, either by virtue of their public health legislation (which contain special emergency powers) and/or their general emergency legislation; (14) some provinces like Prince Edward Island, British Columbia, Yukon and Northwest Territories even declared a state of emergency through both of these types of legislation. The province of Quebec was the first in 2020 to declare a state of public health emergency by way of its public health legislation on March 13, (15) followed closely by Prince Edward Island (March 16), (16) Alberta and British Columbia (March 17), (17) Newfoundland and Labrador and Yukon (March 18), (18) and Nunavut and the Northwest Territories (March 18). (19) By April 16, 2020, Ontario, Saskatchewan, British Columbia, New Brunswick, Manitoba, Nova Scotia, Northwest Territories, Yukon and Prince Edward Island had all declared a state of emergency by virtue of their general emergency legislation. (20) Numerous cities across the country also declared their own state of emergency, including Montreal, Vancouver, Toronto and Saint John. (21)

   Emergency powers share common features regardless of their legislative source. (22) The first part of this paper aims to illustrate these exceptional means by providing an overview of the emergency powers included in the public health legislation of provinces and territories. Though the federal government has adopted measures to respond to the crisis, the crux of the action has been at the provincial and territorial level. Moreover, provincial and territorial public health emergency powers are rarely discussed in the literature, but the COVID-19 crisis has brought them to the foreground. Yet, managing a crisis of this magnitude does not solely rest on the judicious exercise of emergency powers; it also is contingent on how regular powers included in various laws are used for emergency preparedness. This is particularly relevant to the organization and funding of health services and the stocking of material and equipment. Those powers also raise accountability issues in pandemic times, as is highlighted in Parts II and III of the paper.

   1. A Plurality of Approaches to Enhance Means of Action

      Each province and territory has its own public health legislation (23) which sets out extraordinary powers to protect the health of the population when faced with a public health emergency. Such emergency powers vary from one jurisdiction to another in terms of their content, their trigger process, and the authorities that exercise them. (24) Most provinces and territories activate their emergency powers by declaration of a public health emergency. The declaration is generally made at a high level, either by the Government (QC; AB; PE) or the Minister responsible for the Act (NL, NS, NU, NT) (25), and follows a recommendation from the chief medical officer of health (or equivalent), who is a physician. However, in Yukon and in British Columbia, the decision to declare a public health emergency rests in the hands of the chief medical officer of health. (26)

      A different approach is observed in the remaining provinces of Ontario, New Brunswick, Manitoba, and Saskatchewan. In these provinces, a declaration of a state of public health emergency is not required to activate a set of emergency powers under the public health legislation; rather, the simple existence in fact of a public health emergency allows for the exercise of special powers, or for regular powers to be utilized in exceptional ways. (27) In New Brunswick, for example, "(w)here the Minister is of the opinion that a public health emergency exists," he or she may take possession of a land or a building without the consent of the owner or the occupant, if such a measure is required to respond to a public health emergency. (28) Here, there is no need for an official declaration of a public health emergency.

      In both cases, where a declaration approach exists and where it does not, events must meet specific cumulative criteria to trigger either the declaration of emergency or the use of emergency powers. In most jurisdictions, the first criterion is the existence of a public health emergency, generally defined as an imminent or immediate threat that poses a significant or serious risk to public health. (29) The second criterion is that prompt coordination or special measures are required to mitigate or...