A slate of proposed changes to New Brunswick’s Public Health Act would allow the chief medical officer of health to issue targeted public health orders, removing the need for sweeping emergency orders in future infectious disease outbreaks.
“It’s giving us a more targeted approach to manage notifiable diseases and outbreaks,” said Health Minister Dorothy Shephard.
“Instead of locking down a zone or a province, we’re going to be able to focus it a little more narrower to perhaps a building or a city block.”
The changes would bring New Brunswick in line with most other provinces and avoid long-standing use of the Emergency Measures Act, which was in place in New Brunswick from March 2020 to July 2021 and again from September 2021 to March 2022.
The idea is to avoid using the Emergency Measures Act, which Shephard described as a blunt tool that was never intended to be used for long periods of time. For example, Shephard says that under public safety’s existing powers, in order to quarantine an apartment building, an individual order would have to be issued to every person inside. The new rules would allow the chief medical officer of health to make a single order applying to everyone.
According to Lyle Skinner, an expert in emergency management law, the changes should allow the province to avoid having to use the Emergency Measures Act to respond to future waves of the COVID-19 pandemic.
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“I would not envision New Brunswick enacting another state of emergency if there was another wave of COVID in the fall,” Skinner said.
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“This provides them with the tools in the short term to respond to any hypothetical issue with COVID-19.”
Avoiding the use of the Emergency Measures Act should, in theory, lessen the impact on civil liberties in pursuit of protecting the health of the public by narrowing the scope of what can be included in a public health order.
“There’s not the same interpretative liberties, it has to be linked with public health.
“The emergency act is a blunt instrument, it has tremendous impact on civil liberties, including warrantless entry, whereas the ability to conduct a warrantless entry would be much more constrained under the Public Health Act, as an example.”
Both opposition parties say the bill is sound in principle, but say it will need proper scrutiny and may need changes as it works its way through the legislature.
Green Party Leader David Coon has been calling for the government to introduce these types of changes to the Public Health Act for a year.
“You shouldn’t have to rely on something as drastic and dramatic as the Emergency Measures Act to implement public health measures during a pandemic,” he said.
In fact, Coon says, having the changes in place sooner would have prevented the government from using the emergency order to force striking health-care workers back on the job last fall.
“By declaring a state of emergency, government was able to use that to address a labour dispute to order people back to work. If the state of emergency (wasn’t in place), they wouldn’t ever have been able to do that, they never would have declared a state of emergency … to order people back to work,” Coon said.
“It gives so much power to the premier and cabinet that it should only be used as little as possible and then as short as possible.”
Shephard says any orders made under the Public Health Act would have to be signed off on by the minister of health, which avoids placing all accountability for public health orders with an unelected official.
But Skinner says the government should consider adding provisions requiring oversight by the legislative assembly.
“If there is a situation where there are continual orders being issued under public health, or by the minister, there would be a role for the legislative assembly to play in authorizing continual use of those powers. Right now (the bill) is silent on that,” Skinner said.
“The more oversight that the assembly can have, the stronger it makes the province’s response with respect to accountability and transparency.”
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