Executive Lawmaking and COVID-19 Public Health Orders in Canada

Shaun Fluker (University of Calgary), Lorian Hardcastle (University of Ottawa), Executive Lawmaking and COVID-19 Public Health Orders in Canada, 25(2) Rev. Const. Stud. 145 (2021):

The primary public health response to COVID-19 has been social and economic lockdowns, which have varied across Canada in scope, timing, and duration. These measures have included social distancing, quarantine, masking, school closures, business closures, gathering restrictions, closed borders, and travel restrictions. In most provinces and territories these requirements have been enacted in public health orders issued by a chief medical officer, relying on discretionary authority delegated to them in public health legislation.

COVID-19 public health orders have rarely exhibited the hallmarks of good lawmaking in a democratic society governed by the rule of law. Shortcomings in transparency and accountability are a familiar problem for delegated lawmaking by the executive branch, and the COVID-19 public health orders very clearly illustrate these concerns. The result has been a messy landscape of public health rules, which have attracted resistance, and even defiance. At times, the credibility of public health officials has been placed into question. This is unfortunate, because public confidence in these officials and their orders is essential to controlling the pandemic and saving lives.

COVID-19 has exposed the inadequacies of public health legislation across Canada as a proper governance framework for delegated lawmaking. We argue that it is thus incumbent on legislatures to address three basic issues deserving of law reform attention. First, decide exactly what lawmaking powers public health officials should have and ensure that governing statutes reflect this. In particular, existing legislation is unclear as to whether health officials should have and ensure that governing statutes reflect this. In particular, existing legislation is unclear as to whether chief medical officers are authorized to enact laws of general application. Second, improve the transparency in the exercise of these powers. Third, implement accountability measures to ensure there are proper checks and balances on the exercise of these significant executive powers.