Whatever their efficacy in fighting off COVID-19, it’s clear that Canada’s current border controls are on a scale unprecedented in modern times. Since March 25, 2020, all travellers entering Canada have been required to undergo 14 days of mandatory self-isolation, subject to fines or even arrest in the case of non-compliance. And now, incoming air travellers face mandatory confinement to a hotel paired with mandatory testing.
These policies would be inviting a cascade of Charter challenges under normal circumstances, but for now it’s all kosher due to them being a function of the Quarantine Act. Rewritten after the 2003 SARS pandemic, the act extends near-dictatorial powers to government during times of public health crisis. But the question is how long the Act can guide federal policy before inviting pushback.
Like all virtually all federal COVID-19 measures, mandatory hotel quarantine came about as the result of an Order in Council (sort of like a Canadian equivalent to an executive order) issued by the Prime Minister’s Office and justified by the Quarantine Act.
There are a few aspects of Canada’s border measures that don’t quite jibe with the 2005 act, most notably a section that forbids any screening technology that demands “entry into the traveller’s body of any instrument or other foreign body.” While this technically forbids the infamous “brain tickling” nasal swab, any objectors could simply be administered a gargle test.
Regardless, the Quarantine Act extends very broad powers to public health authorities to indefinitely detain anyone who doesn’t follow their orders, and even to authorize “arrest without warrant.”
But while the Emergencies Act is subject to the “supervision of Parliament,” the Quarantine Act is entirely at the prime minister’s discretion. Ultimately, the only political check on the Act is changing who sits in the prime minister’s chair.
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