Introduction

The outbreak of serious, infectious disease like severe acute respiratory syndrome [SARS] or pandemic influenza demands public health action to contain the spread of contagion and limit the magnitude of individual and social harm. Public health actions during an acute outbreak

situation will likely involve interferences with or restrictions on individual liberty, including isolation from contact with others and, if resources are available, mandatory testing and treatment. While public health officials typically will seek voluntary compliance before resorting to compulsory measures, the latter may be considered necessary to manage recalcitrant individuals whose behaviour creates or heightens risk for others.

Public health statutes generally confer wide authority on health officials to take action--including coercive measures--to protect and promote health. While much public health action is well-intentioned, exercise of restrictive powers raises concerns about excessive interference with personal liberties. Legal review serves an important function in testing the justifiability of public health measures. Concerns also arise when public health officials are perceived as doing too little to protect the public from infectious disease threats and individuals may seek to compel action on the part of health officials. This paper provides an overview of public and private law mechanisms--including constitutional challenges, administrative law review, and private law claims of negligence--to explicate their use in reviewing actions of public health actors. Illustrative court decisions are summarized to demonstrate how courts apply Canadian legal doctrines to the public health context.

Legal Mechanisms for Review of Public Health Powers

In Canada, both public and private law provide grounds for seeking review of public health action (or inaction). Public law includes constitutional and administrative doctrines, which are concerned, in part, with ensuring government powers are exercised in a manner that respects fundamental rights and freedoms and are within the bounds of legitimate authority. Private law concerns other duties that government authorities have in relation to citizens, including obligations to ensure effective implementation of public health initiatives.

Constitutional law

Canadian constitutional law provides two key means for reviewing exercise of public health powers: first, the Constitution governs the division of powers between federal and provincial levels of government, including power to legislate in areas of public health; and second, the Constitution includes the Canadian Charter of Rights and Freedoms, which guarantees fundamental rights and freedoms.

i. Division of Powers

Public health is an area of overlapping constitutional jurisdiction and federal and provincial governments may legislate within their respective areas of constitutional authority. (1) For example, emergency management and quarantine powers are vital during a serious, infectious disease outbreak and federal and provincial laws exist in both these areas, but their provisions demonstrate the boundaries of jurisdictional authority. Provincial public health statutes authorize officials to compel quarantine of individuals within that jurisdiction, (2) while the federal Quarantine Act deals with screening of travelers entering and leaving the country for certain communicable diseases. (3) The recently revised federal quarantine statute has been criticized because it:

    neither applies to domestic travel nor compels provinces to share
    information about disease outbreaks within their borders. Nor does
    it give Ottawa the authority to declare or manage a public health
    emergency within a province. Given these limitations, critics fear
    the Act falls well short of oversight measures recommended in the
    aftermath of the SARS outbreak. (4)

However, federal or provincial legislation that trenches on the constitutional jurisdiction of the other level of government is subject to challenge and courts may strike down legislation that has been enacted outside the proper scope of constitutional authority. Discussion of Canadian division of powers jurisprudence is outside the scope of this paper, but other commentary has analysed this issue. (5) A cautious interpretation of the division of powers suggests that federal authority to act to control an infectious disease outbreak is limited to a truly national outbreak where provincial action is inadequate to quell the spread of disease. (6) Some commentators have advocated for the enactment of federal public health emergency legislation "to provide the federal government with the freedom to act on an outbreak that is initially within the confines of only one province but is potentially of national concern." (7)

ii. The Canadian Charter of Rights and Freedoms

The Charter guarantees fundamental rights and freedoms vis-a-vis the exercise of governmental authority. When public health officials institute restrictive measures to control an infectious disease outbreak, their actions may violate Charter rights to liberty, personal security, association with others, and freedom from discrimination. Individuals may seek judicial review of such actions and the reviewing court will first consider if the governmental action infringes individual liberty and, if yes, whether that violation may nonetheless be justified in accordance with section 1 of the Charter, which stipulates that protected rights are subject to reasonable limits that can be justified in a free and democratic society. (8)

In considering whether a limitation on a Charter right is justifiable, courts must consider the following: (1) Is the government's goal--for example, the control of serious, infectious disease--sufficiently pressing and substantial to warrant restrictions on fundamental liberties? (2) Is the limit on individual rights rationally connected to achieving the identified goal? (3) Does the limit restrict individual rights in a minimal or substantial way? (4) Is the benefit to be gained by limiting individual rights proportionate to its harmful impact? (9)

This analysis requires a balance between the dual--and dueling--public interests in respecting individual rights and protecting public health. The Supreme Court of Canada has stated that "[i]t may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance." (10) Recognizing the unremitting reality of scientific uncertainty, the Supreme Court has stated that, in ambiguous situations, the balancing act may be achieved "by the application of common sense to what is known, even though what is known may be deficient from a scientific point of view." (11) In early stages of a novel disease outbreak, knowledge is often limited about modes of transmission, virulence and treatment methods so public health officials may be faced with the problem of restricting individual liberties without certain knowledge that such restrictions will help prevent further spread.

In Toronto v. Deakin, (12) the City of Toronto Medical Officer of Health exercised her powers under the Health Protection and Promotion Act to order a four-month detention and treatment of a patient with tuberculosis. The patient challenged this action as a violation of his constitutional liberty rights. The Court agreed that his rights were infringed, but accepted expert medical evidence that the patient's tuberculosis should be treated without delay and concluded "[t]here is simply no other, realistic method to deal with the problem." (13) Consequently, the court ruled that the restriction of individual liberty over a relatively short period was justified to protect public health and safeguard Deakin's own health. Similar power was exercised in 2005 when public health officials in Ottawa successfully obtained a court order detaining a man with TB for several months of treatment, again recognizing that temporary restriction of rights is justified to prevent spread of disease in the community. (14)

A more problematic situation arises where lengthy detention may be contemplated to isolate persons with a communicable disease from non-infected members of the population. The history of public health is replete with examples of leper colonies and segregation of people with other diseases. For example, Cuba's Ministry of Health institutionalized persons with HIV in sanatoriums from 1986 to 1994 (15) and, very recently, public health and legal scholars have called for detention of persons with extreme drug resistant TB [XDR-TB] in South Africa, acknowledging that some individuals may face confinement until their death: "While isolating such patients until they die--which in the case of the slightly less deadly MDR-TB [multi-drug resistant TB] could be years--has been described as 'ethically questionable and impractical', this option may, of necessity, need to be countenanced." (16) These scholars comment on the important balance between individual liberty and public health protection: "... the forced isolation and confinement of individuals infected with XDR-TB and selected MDR-TB may be an appropriate and proportionate response in defined situations, given the extreme risk posed by both strains and the fact that less severe measures may be insufficient to safeguard public interest." (17)

In an example outside the human health context, the case of Bertram S. Miller Ltd. v. R., (18) involved a New Brunswick plant nursery that imported trees and shrubs from the United States. Federal Department of Agriculture inspectors found the plants to be infested with gypsy moth larvae and under the Plant Quarantine Act, the shipment was seized and destroyed without a warrant. The nursery proprietor argued this exercise of power violated his Charter rights to be free from unreasonable search and seizure (19) and was initially successful. However, on further review, the majority of the Federal Court of Appeal ruled the inspectors acted on a reasonable belief in the danger of a spreading infestation, and Justice Ryan noted that "there was a powerful public interest in safeguarding New Brunswick forests against what might well have been a very damaging infestation." (20) He further acknowledged that "[t]he power to confiscate is a very considerable power. This is particularly so where the power is not conditioned on the fact of infestation, but on a belief on reasonable (but possibly mistaken) grounds that the plants are a hazard." (21) However, the Court emphasized that the public interest in stemming spread of serious disease--in plants, animals and humans--overrides Charter rights: "'Unwholesome food' poses a threat to public health, 'tubercular cattle' to public health and to neighbouring herds. They give rise, as I see it, to 'emergency situations', situations in which prompt action may be required." (22)

While the Miller case arose in the context of plant quarantine legislation, it parallels the type of situation that may arise when public health powers are used to restrict freedoms during disease outbreak among persons. This precedent, along with other Charter jurisprudence such as Deakin, suggests that courts will assess public health actions during emergencies against a relatively low standard and give deference to public health officials who must often act within a narrow time window to prevent spread of disease. A deferential standard of judicial review means that public health officials have latitude to act during emergencies; however, this benefit may also undermine robust protection of civil liberties.

Administrative law

Administrative law "constitutes the body of law that establishes or describes the legal parameters of powers that exist by virtue of statute...." (23) Governmental actors that exercise public health powers in Canada typically do so under authority accorded to them by statute. For example, medical officers of health [MOH] derive powers from public health acts (24) and principles of administrative law can be used to argue that such officials exceeded their lawful authority or failed to perform a statutory duty. The language of public health statutes is often broad and permits exercise of significant discretion by MOH or other decision-makers. For example, legislation may authorize a MOH to act to address a health "hazard", "nuisance" or "emergency," but those terms are susceptible of varying interpretations. Individuals whose rights are affected when a public health officer declares that a hazard or emergency exists may disagree with that judgment or the legal authority to order specific action to address a hazard.

Statutes may also create quasi-judicial bodies with power to hear appeals regarding the acts of public health officials. For example, the Ontario Health Services Appeal and Review Board [HSARB] and the Alberta Public Health Appeal Board have authority to review certain orders made under public health acts in those provinces. (25) In 2004, the HSARB ruled on a legal challenge that the MOH for the Northwestern Health Unit exceeded his legal authority by ordering certain businesses in the region to prohibit workplace smoking based on the view that environmental tobacco smoke constitutes a health hazard. (26) The HSARB ruled that the orders exceeded the MOH's legislative authority as the Ontario Legislature delegated power to regulate environmental tobacco smoke in public places and workplaces to municipal governments and it was beyond the MOH's power to issue general orders of this nature. The Ontario Attorney General sought judicial review of the HSARB decision, arguing that the legal "scope of the authority of the local MOH is a question of general importance." (27) In reviewing the statutory power of the MOH, the court observed that "the MOH's decision and his orders engage questions and issues of public policy, economic interests and the freedom to engage in an otherwise lawful activity. The MOH is not accountable in the same way elected officials are accountable." (28) The court confirmed the decision of the HSARB in ruling the MOH exceeded his statutory authority.

While administrative law mechanisms like judicial review and statutory rights of appeal to quasi-judicial tribunals are useful for those who seek to challenge the exercise of public health powers, some deficiencies have been noted. The Ontario SARS Commission, for example, has identified gaps and ambiguities in that province's public health legislation, particularly in regard to cumbersome procedures for enforcing or appealing public health orders. The Commission concluded: "Legal clarity and simplicity is vital in the enforcement of public health orders and the availability of legal remedies to those affected by orders. Multiplicity of courts and procedures produces nothing but delay and confusion." (29)

Private Law Actions

In addition to legal challenges based on public law, individuals may have a right of action against governmental public health actors based on private law principles, though public health acts typically contain provisions that protect officials from personal liability where they have exercised power in good faith. (30) However, negligence claims may be possible where a claimant can establish the following: (1) the government owed the claimant(s) a duty of care to protect them from a health risk; (2) the government's actions fell below an appropriate standard; and (3) the claimant(s) suffered harm as a result. (31)

In an important 2006 decision, the Ontario Court of Appeal dismissed a case claiming that the Province of Ontario owed a private law duty of care to residents to protect them from risks posed by West Nile virus (WNV). (32) The claimants in the case were the estate and family members of a man who contracted WNV from a mosquito bite and died from complications of the infection. The claimants asserted that the Province failed to meet its duty of care in numerous ways, including negligent failure to implement appropriately a WNV surveillance and prevention plan. After considering provisions of Ontario's Health Protection and Promotion Act, the Court concluded:

    ... these important and extensive statutory provisions create
    discretionary powers that are not capable of creating a private law
    duty. The discretionary powers created by the HPPA are to be
    exercised, if the Minister chooses to exercise them, in the general
    public interest. They are not aimed at or geared to the protection
    of the private interests of specific individuals .... no doubt there
    is a general public law duty that requires the Minister to endeavour
    to promote, safeguard, and protect the health of Ontario residents
    and prevent the spread of infectious diseases. However, a general
    public law duty of that nature does not give rise to a private law
    duty sufficient to ground an action in negligence. (33)

This ruling sets a precedent that will restrict the future viability of private law negligence claims against public health officials.

Conclusions

Public health response to infectious disease is rife with competing interests and tensions. Coercive public health measures aimed at controlling disease outbreaks often impinge on individual rights. In a liberal, democratic society, personal rights and freedoms have fundamental protection in constitutional law, yet these rights must give way in appropriate circumstances to achieve broader, public health goals. Public health officials need appropriate legal powers to restrict or compel behaviour, particularly when recalcitrant individuals do not respond to voluntary requests. Yet, such powers are susceptible of abuse and law may be used in various ways to scrutinize and hold accountable the exercise of coercive power.

Competing tensions also arise from uncertainties present in disease outbreak situations. On one hand, public health officials should not act too hastily in imposing coercive measures; on the other, officials should not wait until there is scientific certainty of harm before acting to address a health threat. This latter exhortation is prominent in the 2007 final report of the Ontario SARS Commission: "The point is not science, but safety. Scientific knowledge changes constantly. Yesterday's scientific dogma is today's discarded fable.... We should be driven by the precautionary principle that reasonable steps to reduce risk should not await scientific certainty." (34) Similarly, the article in this collection from the University of Alberta Public Health Response Committee adopts the following principle to guide decision-making in the event of a pandemic flu: "In the absence of full information, decision-making should be taken on a precautionary rather than evidence-based model." (35) When courts adopt a deferential approach to reviewing the actions of public health officials, they will give them some room to maneuver to restrict individual liberties where other options have been exhausted and where necessary to limit spread of disease in emergencies.

Individuals in Canada who face involuntary restrictions on their freedoms during a disease outbreak may have recourse through public or private law actions. However, in a grave situation like pandemic influenza, practical barriers undermine the utility of legal challenges as a means to superintend the exercise of coercive powers. Even under normal conditions, it is expensive and time-consuming to initiate legal action and legal remedies may not compensate all harms an individual has borne. In a mass outbreak, many people may become ill and societal institutions, including the judicial system, will likely operate at very limited capacity. If public health interventions such as screening and quarantine are imposed on a widespread, but temporary, basis, individuals may be less likely to seek legal recourse if they see that others face similar restrictions and that limits on personal freedoms will end well before they ever have an opportunity to appear before a judge to argue a challenge.

In spite of these barriers, legal mechanisms of review preserve a critical avenue of recourse for those who seek to challenge the legitimacy and justifiability of public health powers. Legal review obliges officials to defend their actions before courts or other quasi-judicial decision-makers who, in turn, must balance individual liberties and public health goals. Gostin's observation provides an apt conclusion: "Government should not carelessly or gratuitously interfere with ... freedoms. But if government has a justification based on averting a significant risk to the public's health or safety, and if its intervention is just and reasonable, then the courts should cede to agencies the power to act for the communal good." (36)

Nola Ries, Research Associate, Health Law Institute, University of Alberta, Edmonton, Alberta and Adjunct Professor, University of Victoria, Victoria, BC. The author acknowledges funding support from the Canadian Institutes of Health Research and is grateful for research assistance from Jacob Shelley.

1. See Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.

2. See e.g. Ontario, Health Protection and Promotion Act, R.S.O. 1990, c. H.7, s. 22(4)(c) (which provides that a medical health officer may issue an order "requiring any person that the order states has or may have a communicable disease or is or may be infected with an agent of a communicable disease to isolate himself or herself and remain in isolation from other persons").

3. Quarantine Act, S.C. 2005, c. 20.

4. Wayne Kondro, "Revised Quarantine Act has serious limitations" (2007) 176 Can. Med. Assoc. J. 613.

5. See e.g. Kari Gammon, "Pandemics and Pandemonium: Constitutional Jurisdiction over Public Health" (2006) 15 Dal. J. Leg. Stud. 1; Nola M. Ries, "Legal Foundations of Public Health Law in Canada" in Tracey M. Bailey, Timothy Caulfield & Nola M. Ries, eds. Public Health Law and Policy in Canada (Markham, Ont.: Butterworths, 2005); Kumanan Wilson, "The Complexities of Multi-level Governance in Public Health" (2004) 95 Canadian Journal of Public Health 409; and Kumanan Wilson & Harvey Lazar, "Planning for the Next Pandemic Threat: Defining the Federal Role in Public Health Emergencies" (2005) 6 IRPP Policy Matters 1.

6. See Gammon, ibid.

7. Wilson & Lazar, supra note 5 at 3.

8. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11 (Section 1 of the Charter states: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.")

9. R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200.

10. Oakes, ibid., at 136.

11. RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at para. 137, 127 D.L.R. (4th) 1.

12. Toronto (City, Medical Officer of Health) v. Deakin_[2002] O.J. No. 2777 (Ct. Just.)

13. Ibid., at para. 29.

14. See Jake Rupert, "Judge orders man with TB held after he refuses care" Ottawa Citizen (22 June 2005) A1.

15. Helena Hansen & Nora Groce, "Human Immunodeficiency Virus and Quarantine in Cuba" (2003) 290: 21 Student JAMA: J. Am. Med. Assoc. 2875.

16. Jerome Singh, Ross Upshur & Nesri Padayatchi, "XDR-TB in South Africa: No Time for Denial or Complacency" (20067) 4:1 PloS Medicine e50. (The authors acknowledge that "[a]n important question that we must come to terms with is the extent to which judicially sanctioned restrictive measures should be employed to bring about control of what could develop into a lethal global pandemic.").

17. Ibid. note 16 at 22.

18. Bertram S. Miller Ltd. v. R, 18 D.L.R. (4th) 600 (T.D.), rev'd (C.A.), 31 D.L.R. (4th) 210 (C.A.).

19. Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure." Supra note 8.

20. Supra note 18 at para 61(F.C.A.).

21. Ibid., at para. 56 (F.C.A.).

22. Ibid., at para. 75 (F.C.A.).

23. David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at 3.

24. Public Health Agency of Canada Act, S.C. 2006, c. 5.

25. See Ontario, Health Protection and Promotion Act, R.S.O. 1990, c. H.7, s. 44; and Alberta, Public Health Act, R.S.A. 2000, c. P-37, ss. 3-5.

26. Pelletier et al. v. Medical Officer of Health for the Northwestern Health Unit, Ontario, Health Services Appeal and Review Board (17 February 2004) online: <http://www.hsarb.on.ca/english/decisions/second_hand_smoking_fdr.pdf>.

27. Ontario (Attorney General) v. Ontario (Health Services Appeal and Review Board) [2006] O.J. No. 52 at para. 22, 262 D.L.R. (4th) 688 (Ont. Sup. Ct. Just.) at para. 22.

28. Ibid., at para. 31.

29. SARS Commission, Second Interim Report, Volume Five--SARS and Public Health Legislation (Commissioner: The Honourable Archie Campbell) at 336, online: <hhtp://www.sarscommission.ca/report/v5.html>.

30. See e.g. Alberta, Public Health Act, R.S.A. 2000, c. P-37, s. 66.1; and Ontario, Health Protection and Promotion Act, R.S.O. 1990, c. H.7, s. 95.

31. For elaboration, see e.g. Philip H. Osborne, The Law of Torts, 2d ed. (Toronto: Irwin Law, 2003), esp. Chapter 2, "Negligence: Basic Principles."

32. Eliopoulos v. Ontario (Minister of Health & Long-Term Care), [2006] O.J. No. 4400 (C.A.).

33. Ibid., at para. 17.

34. SARS Commission Final Report: Volume Three--Spring of Fear (Commissioner: The Honourable Archie Campbell) at 1045, online: <http://www.sarscommission.ca/report/index.html>.

35. Lorie Grundy et al., "Preventing Pandemonium: Pandemic Preparedness Planning and Communicable Disease Outbreak Management in a University Setting" (2007) 16:1 Health Law Rev. 17.

36. Lawrence O. Gostin, "Public Health Law in a New Century--Part II: Public Health Powers and Limits" (2000) 283 J. Am. Med. Assoc. 2979 at 2983.