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Our Family Lawyers Team
What Legal Right Does The Government Have To Order And Enforce Quarantine, Mask Wearing, And Other COVID-19 Restrictions?

What legal right does the government have to order and enforce quarantine, mask wearing, and other COVID-19 restrictions?

“To isolate the sick is ‘quarantine’, to isolate the healthy is ‘tyranny’!”

This is a refrain that we hear with increasing frequency, especially south of our border. The counterbalance is the claim that the government has not done enough and should do even more to stem the spread of the COVID-19.

Where you stand on this spectrum is a question of opinion. Asking by what right the government can dictate restrictions is a question of law.

Can the government order businesses to close and stipulate when they shall re-open, possibly exposing them to bankruptcy in the process?

Can they forbid you from visiting your elderly relatives or for those so unfortunate – attending your own mother’s funeral? Whether the government ‘should’ or ‘should not’ dictate such rules without the oversight of legislature is not the question here. What we are asking is simply whether it can legally do so.

At the municipal level, people across Canada have been receiving fines of $1,500 and over for formerly innocuous activities such as walking in the park, having friends over for a BBQ, playing soccer, or just standing “too close” to someone. In and around Montreal, some mayors have adopted the chilling tactic of encouraging their constituents to ‘rat-out’ their neighbours if they see anyone breaking the lockdown order. But no legislature passed these restrictive laws. How can the municipality authorize such extreme policing?

In Quebec, the answer lies in the Civil Protection Act of 2001. (Other Provinces’ laws and the Federal Laws are linked below). Therein, the Province empowered its municipal authorities to act in compliance with the provincial authorities to protect persons and property against disasters, such as earthquakes, floods, or even a pandemic. The local municipalities can declare a state of emergency in all or part of its territory for a period of up to five days. With the authorization of the province, this period of five days can be extended as often as necessary.

Once a disaster is declared, such as COVID-19, municipal authorities can stipulate pretty much any rules they wish without formality or any kind of legislative process.

Essentially, the municipalities can do this because the province gave them the power to do so back in 2001.

If the municipality was empowered by the province, then who empowered the province to act in such a manner? The province empowered itself through that same Act, and through the Public Health Act, also of 2001. By these two acts the provincial government gave itself and its municipalities the powers to write de facto laws and create new penalties without the approval nor oversight of a legislature. The province can dictate new rules, restrictions or fines as it sees fit.

This is similar to how ancient Rome would react to a military threat.  A magistrate would be nominated as the “Dictator” and could rule more efficiently for a specified period of time in order to address the danger.

The belief is that in the case of a war, disaster, or health emergency, a quick response is necessary, so the government can order any measure without formality.

In Quebec, only the declaration of the emergency requires a formal vote.

The Government of Quebec declared a provincial public health emergency March 13 and has been renewing this declaration every ten days since. This declaration and the two laws cited above give the government the power to act without immediate oversight, to rule by dictate – for our health and protection, of course. Interestingly, when these two laws were passed in 2001, they were accepted without objection and little or no debate. It seems to have been a given that government can adopt drastic measures when the public health is concerned.

At the federal level, the government has some strong but strictly defined powers provided under the Quarantine Act of 2005. These allow the federal authorities to issue fines and stipulate that travellers can be screened, examined, and assessed medically so as to prevent the introduction and spread of disease. Things got more interesting at the end of March when the Liberal government convinced all the other federal parties to allow it to rule by decree (dictate) until the end of September. Only one parliamentarian, Conservative Scott Reid, against the orders of his own party, stood up and fought against this. He referred to the legislation as a “Henry VIII Bill” for allowing the executive to function without the approval of Parliament.

Where do the courts stand in all this? We do not know. This is an unprecedented situation and there is no jurisprudence to guide us in how to interpret these benchmarks during a pandemic. The constitutional test provided to us many years ago by the Supreme Court of Canada asks: “Is the measure necessary and proportional?” This test, however, is applied after the fact, and only if a Plaintiff challenges an action on the part of the government. This takes time and money.

In summary:

Can our government act as a dictatorship? For now, the answer is ‘yes’.

Why can they? Because they have given themselves the power to do so. Should they be able to do so? That is for each of you to decide, and we would be interested in your thoughts on this.

Here are some links for further reading and information regarding the various governments’ responses to COVID-19.

Here is a table of the Public Health Acts and Emergency Measures Acts that empower the Federal and Provincial Governments to respond to COVID-19.

Governing Entity

Public Health Act

Emergency Power Act


2005 Quarantine Act See also; Public Health Agency related Acts

1988 Emergencies Act


2002 Public Health Act

2001 Civil Protection ACT 


2000 Public Health Act

2000 Emergency Management Act


1990 Health Promotion and Protection Act

1990 Emergency Management and Civil Protection Act

British Columbia

2008 Public Health Act

1996 Emergency Program Act


1994 Public Health Act

1989 Emergency Planning Act


2009 Public Health Act

2002 Emergency Measures Act

New Brunswick

1998 Public Health Act

2011 Emergency Measures Act

Nova Scotia

2004 Health Protection Act:   See also: Guide to the Health Protection Act and Regulations

2005 Emergency Measures Act

Prince Edward Island

1988 Public Health Act

1990 Emergency Measures Act

Newfoundland and Labrador

2019 Public Health Protection and Promotion Act

1990 Emergency Measures Act

Northwest Territories

2009 Public Health Act

2008 Emergency Services Act


Public Health Act

Emergency Measures Act


2002 Public Health and Safety Act

2002 Civil Emergency Measures Act

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