Could Canada enforce coronavirus self-isolation? Legal experts say yes

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Canada’s health officer says they are counting on Canadians to do the right thing around self-quarantine
WATCH: Canada's health officer says they are counting on Canadians to do the right thing around self-quarantine – Mar 19, 2020

Over the past week, Canadian officials have urged the public to practice social distancing, self-isolate and quarantine during the coronavirus pandemic — but what happens if that advice is ignored?

While officials have insisted that self-isolation is strongly advised in some circumstances, there are currently no plans to enforce it.

Dr. Theresa Tam, Canada’s chief public health officer, dismissed the idea on Thursday, saying many Canadians are already following the rules.

“Our whole concept is to get everybody to do the right thing,” Dr. Tam said. “Based on other experiences like the SARS situation in Toronto, Canadians contribute by doing the right thing.” 

Dr. Tam noted that Canada does have legislation for cases when advice is not followed, but officials are “not aiming for that to be the key response.”

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Coronavirus outbreak: Trudeau says ‘it’s time’ to bring Canadians back from abroad

Prime Minister Justin Trudeau expressed similar sentiments on Monday.

“If we put measures for mandatory self-isolation, as many people have looked for, there would need to be enforcement measures around that both by public health and public safety,” Trudeau said.

“We know that Canadians want to keep themselves and their families safe, and we are confident that people will do what is necessary to keep themselves, their loved ones and their neighbourhoods safe,” he added.

In other parts of the world, stronger measures have been taken to ensure those who need to stay home are actually doing so. 

In Hong Kong, travellers are being fastened with white electronic bracelets, while in parts of India, those who are quarantined are given stamps that read: “HOME QUARANTINED.”

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In other countries, those not following orders can be arrested. Italy charged 40,000 people this week for not obeying quarantine orders.

While Canada has not enforced such strong measures, it can, according to University of Ottawa law professor Martha Jackman. 

Jackman explained Canadians have the right to mobility as per Section 7 of the Charter of Rights and Freedoms, but the government can infringe on it if deemed necessary.

“Section 1 of the Charter does allow the government to restrict Charter rights, if it is reasonably and demonstrably justifiable,” she said, noting that in this case, they would have to prove it was recommended by medical professionals as a necessary step in curbing COVID-19 cases.

“As long as the decisions really are grounded in legitimate public health concerns, then you know, they would be deemed by court to be justifiable,” she said.

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“You can imagine that in a pandemic context, like the one we’re in right now, the courts are going to be fairly deferential and rightly so.”

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Jackman said that doesn’t mean the decision would come lightly, and it would be difficult for the government to balance several social, economic and political factors. 

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There are ways for the Canadian government to enforce self-isolation. 

Barbara von Tigerstrom, a professor at the University of Saskatchewan who researches public health law, explained the Quarantine Act has already been used by the government in the COVID-19 fight.

Von Tigerstrom cited the case of Canadians who were repatriated with help from the government from cruise ships, but then kept in quarantine at a military base in Trenton, Ont. 

“The federal government generally deals with public health threats and communicable diseases at the border,” von Tigerstrom explained. “The Quarantine Act applies mostly at the point of entry rather than to the population generally.”

The act, which was created in 2005 following Canada’s SARS outbreak, allows the federal government to quarantine individuals arriving in the country to prevent the “introduction and spread of communicable diseases.”

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The act has the ability to deal with large-scale quarantines and individual cases, Von Tigerstrom explained. 

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She noted that for quarantine and self-isolation of those already in Canada, provincial legislation would be more relevant. 

“Every province and territory will have some piece of legislation that does that; in a lot of provinces it’s called the Public Health Act,” she said, adding that they also have separate legislation to take drastic measures in times of emergencies. 

In Ontario, for example, the legislation is called the Health Protection and Promotion Act.

While several provinces have declared a state of emergency over the COVID-19 pandemic, none have enforced self-isolation. They have, however, strongly urged the public to comply with the rules.

On Thursday, Ontario Premier Doug Ford said enforcing self-isolation would be very difficult.

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“We don’t have the police and the resources to be knocking on everyone’s door and saying, ‘are you staying in?’” he told reporters. 

Ford did raise concerns that long lines at the grocery store prove many are not following orders as well as they should. 

New Brunswick Premier Blaine Higgs voiced similar concerns Thursday as he declared a state of emergency.

“Declaring a state of emergency and changing the messaging raises the bar higher. It brings a sense of urgency that this is not a game, this is not an exercise,” he said, explaining that he hopes people will now take self-isolation more seriously. 

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In both federal and provincial legislation, von Tigerstrom said there are powers to arrest and detain rule-breakers, but using them is a “fairly extreme measure.”

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In this specific case, one that affects nearly every Candian, von Tigerstrom noted enforcing those powers could be very difficult. 

“We’re just looking at things happening on such a large scale right now that actually keeping track of everyone and monitoring and sending people out to bring them back to where they’re supposed to be would be such a huge task.”

That’s why Roojin Habibi, a global health lawyer and research fellow at York University’s Global Strategy Lab, said the government is taking a different approach.

“I think there’s just not a lot of appetite to impose heavy-handed measures right now,” she said.

The government is also enforcing shutdowns of schools, daycares and other facilities, and encouraging people to work from home, Habibi noted, limiting ways for people to gather. 

“Those are the things that the government can control,” she said. 

“I think the government’s not likely to force this upon people. It’s more likely to create a kind of social setting where people will inevitably just be at home.”

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While that is what officials have suggested thus far, von Tigerstrom noted the COVID-19 pandemic is difficult to predict. 

“It really depends on how things develop,” she said. “Certainly we’ve seen examples in some countries, there have been some arrests.”

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Coronavirus questions answered: How to properly self-isolate

In Canada, von Tigerstrom said it comes down to finding a balance between public health and Charter rights. 

“They can only do that when it’s necessary and proportionate to the risk,” she said. 

“It’s not a step that any government would take lightly, but if they think that it’s necessary to protect against a significant risk to public health, then it’s possible.”

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