Jul 01, 2020
The Covid-19 pandemic has had a huge impact on the lives of Canadians and we likely won’t be able to return to normal interactions for another year, or at least until a vaccine is distributed to a large portion of the population. Almost everyone has been impacted in some way, whether through social isolation; reduced income or the loss of a job; changes in the way we receive education; feelings of anxiety and stress; or the death of a loved one.
Historically, governments have often enacted laws or ordinances during pandemics in order to keep citizens safe and to mitigate the spread of a communicable disease. These laws sometimes have ethical considerations and in democratic societies at least, are expected to balance the rights and freedoms of citizens against public health concerns.
In Canada, pandemic laws in response to Covid-19 have been enacted on all levels of government – federal, provincial and municipal. At the Federal level, the Quarantine Act (2005) was established to prevent the spread of contagious diseases into and out of Canada, and Canada’s Minister of Health has the authority to enact and enforce any necessary public health measures with immediate effect. Upon declaring a ‘public health emergency’, the Quarantine Act gives the Canadian government emergency powers to screen persons entering and leaving Canada for Covid-19 and allows the government to: establish quarantine zones and fine or imprison persons who don’t comply with quarantine orders; prohibit certain groups of people from entering the country (for example, persons travelling from a country with a current outbreak); prevent specific goods from being imported; or enact any other regulations deemed necessary to protect public health. The Act may also be invoked to prevent travel within Canada.
On March 25, 2020, Canada’s Public Health Agency enacted an Emergency Order under the Quarantine Act requiring anyone entering the country to immediately self-isolate for 14 days. (However, mandatory quarantine excludes certain persons entering Canada for essential purposes, if they have no symptoms of Covid-19.) Failure to comply with the self-isolation order may result in a maximum fine of $750,000 and/or up to six months in jail. Also, anyone who causes serious harm or a risk of death “while wilfully or recklessly contravening this Act” may be fined up to $1 Million and/or face up to 3 years in jail.
The Aeronautics Act is another Federal statute that can be employed to prevent the spread of a communicable disease, such as Covid-19, by restricting travel by air. The Aeronautics Act sets out a requirement that anyone boarding an airplane to Canada must undergo a check for Covid-19 and cannot board if they have symptoms, and also prohibits tourists from crossing into Canada via flights. Similarly, the Quarantine Act currently prohibits tourists from entering at the U.S.-Canada border.
Under the Emergency Management and Civil Protection Act (1990), the Ontario government and municipalities may invoke orders to protect public health, welfare and safety in times of a declared emergency. Accordingly, on March 17, 2020, Ontario’s provincial government declared a Covid-19 state of emergency, which gave the province the power to mandate the following changes:
As the number of Covid-19 cases and deaths have decreased in Ontario, the rules have been slowly relaxed, first on May 19 and then again on June 12, to allow more businesses and recreational facilities to open as long as they follow public health recommendations. And, the limit on social gatherings has increased to 10 people. If a police officer has reasonable grounds to believe a person isn’t following emergency orders, the person may be charged with a provincial offence, and fined or sentenced to up to one year on jail.
Some municipalities have enacted their own bylaws, in addition to the provincial regulations. For example, on April 1st and 3rd, the City of Toronto enacted emergency orders to regulate physical distancing (of at least 2 meters) in Toronto parks and public squares for any two people who don’t live together. On June 12th, the City of Guelph enacted a bylaw requiring persons to wear a mask or scarf on public transit and inside commercial establishments.
It’s important to note that these Acts do not give governments unlimited powers. Governments at all levels are constrained by Canada’s constitution and any orders are subject to the Canadian Charter of Rights and Freedoms. The government’s powers are further restrained by parliamentary oversights, notably the provincial and federal legislatures; as well as the power of the courts to evaluate orders based on existing statutes.
Historical Pandemics and Outbreaks
Governments and medical experts, worldwide, have gained valuable knowledge from past pandemics and outbreaks, such as the ‘Spanish flu’ of 1918-1920 (which actually began in the U.S.), the Asian flu (1957-1958), the SARS outbreak (2002-2003), and H1N1 influenza A (2009). During the SARS outbreak, for example, governments used quarantine, border controls, contact tracing and surveillance to effectively contain the outbreak worldwide in just over three months (3).
The global economy and the huge prevalence of international travel have added a level of challenge to limiting transmission during pandemics, and even a small and localized outbreak can have global implications. During the SARS outbreak, health organizations came to realize that, in addition to pandemic rules within countries, there is a need for global information sharing and a legal framework for tracking infectious disease and their sources, regardless that this latter strategy might infringe on the sovereignty of countries around the world.
Pandemic laws to protect public safety did not begin with SARS. During 1918-1920 influenza (which led to around 50 Million deaths worldwide and 675,000 deaths in the U.S. alone), local governments throughout the U.S. introduced various ordinances to reduce transmissions, such as closing schools and public entertainment places, and requiring people to wear masks in public in some jurisdictions. Most citizens went along with the mask-wearing regulations, but some officials and others didn’t comply, complaining the masks were uncomfortable, ineffective and/or bad for business (5).
Canada’s failed response during SARS
Among western nations, Canada was the most impacted by SARS (severe acute respiratory syndrome), with 251 cases and 43 deaths, most of whom were health care workers, patients and their visitors. All SARS cases occurred in Ontario and about 10,000 Ontarians were placed in quarantine. An evaluation of Canada’s response to SARS concluded that our health care system was “unprepared, fragmented, poorly led, uncoordinated, inadequately resourced [and] professionally impoverished” and further, the outbreak was contained only due to “the heroic efforts of dedicated front line health care and public health workers”, along with the help of exceptional managers and medical advisors (4).
There were three key problems in Canada’s preparation and handling of the SARS outbreak (4).
After the SARS crisis, the Canadian government and Health Canada commissioned a study of the outbreak titled “Learning from SARS”, which assesses the current public health strategies and provides recommendations for future infectious disease control. It’s difficult to determine how many of the recommendations have been implemented, if any, but some key concerns clearly weren’t addressed or resolved by the time Canadians faced the H1N1 pandemic, six years later, because the government’s own analysis revealed that information sharing technology and protocols between communities continued to be lacking and there was still inadequate capacity for epidemiological analysis (5).
During the COVID-19 crisis so far, several of our governments’ emergency orders have seemingly had good effect in terms of reducing transmissions – such as halting international travel into Canada, quarantine of Canadians and persons with COVID symptoms, and closure of non-essential businesses and facilities. However, the crisis revealed at least one serious concern in Canadian health care: in the management and oversight of our long-term care and seniors’ facilities. Staffing problems (in terms of the number of staff per facility, training and pay scales), the lack of effective protocols for containing contagious diseases, lack of oversight, and too many persons per room led to deficient patient care and many tragic deaths. To our shame, Canada’s long-term care facilities, particularly in Ontario and Quebec, experienced substantially higher mortality rates than in most developed nations. We hope and expect that a post-pandemic review of what went wrong will lead to much-needed improvements in the near future.
Public Acceptance of Covid-19 regulations
Quarantine is typically among the most controversial measures adopted by countries during a pandemic, due to the political, ethical and socioeconomic issues and the need to properly balance individual rights with the public interest. Canada’s mandatory quarantine orders for travellers entering the country and for persons who contracted Covid-19 have, on the whole, been positively received by Canadians with the view that this requirement is necessary to protect public health. Some provinces have enacted similar quarantine orders for persons entering from another province; such as New Brunswick, which requires non residents to quarantine for 14 days after they enter the province, and only persons who are visiting family member or own property in NB may visit at this time (6). On July 3rd, all four Atlantic provinces, will form a ‘bubble’ and from a Covid-19 quarantine perspective, will function as one jurisdiction.
Infectious disease experts have consistently stated that the three most important measures individuals can take to prevent getting Covid-19 and spreading the virus are effective hand washing, maintaining a physical distance of at least 2 meters, and wearing a mask. However, although Health Canada and the Ontario government strongly support these recommendations, the two levels of government have chosen not to mandate these measures. Rather, official websites and public health officers stress only that: we ‘should’ maintain a 2-meter distance from others; and when we cannot consistently do so in a public setting, such as stores, shopping areas and public transportation, wearing a non-medical mask or face covering is ‘recommended’.
As noted above, some Ontario municipalities have enacted bylaws to mandate physical distancing and/or masks, but in most jurisdictions (unless required by a health facility such as doctors’ offices or an individual store), persons can decide for themselves whether to wear a mask or maintain physical distancing within the store. In the absence of a law requiring masks, in many local shopping venues in Waterloo Region (with the exception of grocery stores), it’s common to see only a small percentage of shoppers, often as low as 1 in 10, wearing masks. And, in some retail locations, such as Canadian Tire and Home Depot, many of the staff also do not wear a mask. As more businesses and travel opportunities open up to the public, should residents be concerned that the failure to mandate masks and physical distancing may result in another surge in Covid-19 cases and deaths, or should personal freedom trump the potential threat to public safety?
Mandating wearing masks in public – Are masks truly effective at preventing spread?
Since the outbreak began, some countries have experienced significantly lower death rates and faster reductions in new Covid-19 cases than others. In an analysis of 194 countries, researchers attempted to find out why there were such large differences in mortality and transmission rates between countries, and they found that wearing masks is a key factor in reducing the number of Covid-19 deaths per capita (10). The study found that countries with government policies or cultural norms that support the wearing of masks in public experienced an average increase in mortality per-capita of 8 percent each week, while countries without support for masks experienced a 54 percent weekly increase in deaths.
Vietnam, for example, has been extremely successful in managing the Covid-19 crisis so far. The country of 97 million required that all citizens wear masks in public places, and along with other aggressive measures that were adopted early on, mass wearing of face coverings helped keep the number of reported cases to 300 with no deaths, and no new cases since mid April (Learn more at https://www.bbc.com/news/world-asia-52628283)
A study by the University of Cambridge, which involved modelling of the Covid-19 pandemic, similarly concluded that the wearing of masks in public greatly reduces transmission and, when combined with periodic lockdowns, can prevent additional waves of Covid-19 (11). The study suggests that at least 50 percent of people need to wear masks in order to keep the reproduction number below ‘1’ so that the spread of Covid-19 will slow, but the more people who wear masks and the sooner they are adopted, the quicker the number of transmissions will diminish. The Cambridge study believes 100 percent adoption of masks in public, combined with periodic lockdowns when needed, will prevent further resurgence of the virus for the 18 or so months until a vaccine can be distributed. Even homemade masks are 90 percent effective and can catch the wearer’s exhaled droplets and prevent transmission to other people.
The World Health Organization advocates wearing non-medical face masks in public anywhere we are unable to maintain social distancing. In England, when restrictions on social gatherings and businesses were eased, the government mandated face masks on all public transportation. Contrast this with Canada where governments have generally been reluctant to mandate face-coverings in public, even on public transit. The City of Guelph is one of few exceptions.
Given compelling evidence that we can reduce community transmission and save lives when most of the population is wearing masks (where consistent physical distancing isn’t possible), some might argue that governments and health officers may be, at least partly, responsible when citizens continue to contract Covid-19 in community settings and as a result, become seriously ill or die. As we continue to increasingly open businesses and allow Canadians to get back to work and play, it may be an appropriate time to seriously consider whether safety measures, such as wearing masks in public buildings and on public transit should be mandated so prevent a resurgence of cases.