COVID-19 in Canada: the Legal Framework

I have posted “COVID-19 in Canada: the Legal Framework” to SSRN. This is a ‘country report’ prepared for the International Academy of Comparative Law. Here is the abstract:

In the legal framework for Canada’s pandemic response, executive government has been the dominant actor. The responsibility of balancing public health and economic well-being in rapidly evolving circumstances has been discharged by executive actors, elected ministers and unelected healthcare officials. Given the federal nature of the Canadian Constitution and the dominant role of executive government in the pandemic response, there has been a high degree of variation across the country in dealing with successive waves of COVID-19.

With successive waves of COVID-19 sweeping into Canada and over the population, the political and legal systems struggled to respond. The legal scholar charged with describing Canada’s COVID-19 response faces an unenviable task. Each of the COVID-19 waves would merit a detailed analysis in and of itself but space precludes such an approach. My goal, therefore, is to set out the general framework Canada’s political and legal systems have used to respond to the pandemic, illuminating the framework by examples drawn from various points in time. This framework is mostly backward-looking but, as it is likely to be used in response to future waves and future pandemics, it has also a forward-looking quality.

I use as my touchstone the three forms of governmental power – imperium, dominium and suasion.

Imperium is the use of the coercive power of the law. It has been on display at national and interprovincial borders, with the federal government using its coercive powers to quarantine visitors and Canadians returning from abroad, and provincial governments sometimes refusing entry to out-of-province Canadians and quarantining its own residents. Provincially, governments have restricted individuals’ ability to move, meet and work by imposing physical distancing requirements. The consequences for civil liberties have, therefore, been significant.

The struggle against COVID-19 has not entirely been waged by means of imperium. In early waves, governments used exercised their ability to distribute public funds – dominium – to contract for supplies of personal protective equipment. As vaccines became available, the federal government bought large amounts from international pharmaceutical companies; these vaccines were distributed to the provinces and local health authorities for administration to the population. Wearing their employer hats, the federal government and some provincial governments have sought to mandate vaccination for employees in certain sectors, on pain of losing their employment.

Beyond imperium and dominium, Canadian governments have sought to use suasion to achieve their objectives. Without relying on the force of law, or their ability to distribute largesse, governments have persuaded individuals and corporations to act in ways that reduce the spread of COVID-19. Most recently, governments both federally and provincially have introduced general so-called vaccine mandates, which restrict unvaccinated individuals’ ability to engage in communal activities. Despite their name, these mandates do not compel individuals to become vaccinated and, as such, qualify as suasion rather than imperium.

To the extent legislatures have been involved in responding to the pandemic, their role has consisted of empowering executive government and, of course, performing their usual scrutiny functions.

Judges have consistently been highly deferential to governmental policy choices during the pandemic, both to the expertise of healthcare officials and the democratic bona fides of elected ministers. When courts have intervened to invalidate executive excesses, it has been at the margins and has not called pandemic policy into question.

Unless there is a significant change in the legal framework used to respond to COVID-19, one can expect similar dynamics in response to any future pandemic or comparable crisis.

Download it here.

This content has been updated on January 24, 2022 at 17:23.