People are interested in the federal government maybe doing a COVID emergency law, but seem to think it's too hard. ACTUALLY IT'S EASY. As a law prof who argued this stuff in the Supreme Court recently, let me explain how. (thread)

There are two ways to go: (i) under the Emergencies Act, which I don't recommend, or; (ii) under the "emergency branch" of the Peace, Order, and Good Government (POGG) power in s. 91 of the Constitution Act, 1867, which is more flexible and better for COVID times.

Two things the Supreme Court has said about the POGG emergency branch: (i) it can intrude on provincial law and trumps it every single time, and; (ii) it must be temporary. Let's take those in sequence.

There's a myth out there that "health is provincial" and the feds can't intrude. Constitutionally this is wrong. The Supreme Court has said on several occasions that it is shared jurisdiction.

Quoting the the Supreme Court here: "Health is subject to overlapping federal and provincial jurisdiction, and the provinces’ power to legislate in this field does not exclude Parliament’s authority to target conduct that constitutes a public health evil."

But the POGG emergency branch goes farther. It is "plenary", meaning it trumps provincial law during an emergency and overrides the default distinction between fed/prov powers.

It's been used most often used to fight wars, but was used by Pierre Trudeau to fight inflation.

And it can be used for a pandemic!

As the Privy Council wrote: "A pestilence has been given as an example of a subject so affecting, or which might so affect, the whole Dominion that it would justify legislation by the Parliament of Canada" relying on POGG.

Quoting the Privy Council again: "It would seem to follow that if the Parlia­ment could legislate when there was an actual epidemic it could do so to prevent one occurring and also to prevent it happening again."

There's no doubt: using POGG to prevent a second wave is okay.

Which brings us to the second requirement: a POGG emergency law must be TEMPORARY. It can't go on forever, because that would let the federal government intrude on provincial jurisdiction forever.

But "temporary" does not mean fleeting. Wars go on for years--just like COVID.

In fact, Parliament already has a temporary health law ready for just this occasion. Trudeau doesn't need a new law to do this!

Section 11.1 of the Department of Health Act lets the Minister to issue a temporary (14 day) interim order for health reasons. I'll quote it now...

It reads: "The Minister may make an interim order that contains any provision that may be contained in a regulation made under section 11 if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to health or safety."

It's a no-brainer that COVID presents "a significant risk ... to health", so that condition for making an interim order under s. 11.1 is met.

But we must also ensure that s. 11 (not 11.1; this is not a typo) gives sufficient latitude for a useful interim order. Let's see...

Happily we find that in s. 11, Parliament gave a blank cheque, capable of just about anything. It reads: "The Governor in Council may make regulations to give effect to and carry out the objects of this Act."

Now, it's trite to say health is an "object" of the Department of Health Act.

Elsewhere, in s. 4(2)(b), that is given some detail as "the protection of the people of Canada against risks to health and the spreading of diseases"--which surely includes a pandemic like COVID.

Let's sum up so far:

Using the Department of Health Act, the Minister can declare a pandemic emergency under POGG, and impose control measures nationally for 14 days. Intruding on provincial power is allowed, because POGG trumps that. Cabinet can extend the 14 days as needed.

Is it possible the provinces would sue to quash the Minister's interim order, or Cabinet's extension? Sure.

But it's VERY unlikely they could persuade a court that COVID is not an emergency and win, because Privy Council precedent says that is for government alone to judge.

The Privy Council wrote: "it is not pertinent to the judiciary to consider the wisdom or the propriety of the particular policy which is embodied in the emergency legislation. [That] is exclusively a matter for the Parliament...and those to whom it has delegated its powers."

Or in other words: if the Minister issues an interim order using the delegated authority Parliament gave her, containing national rules to fight the COVID emergency, then the Court believes it has no business second-guessing it.

That wraps up the constitutional question.

But there's still this question: How hard would it be to draft an interim order, and how long would it take a skilled lawyer? My answer: personally, if I were tasked with the job, I could get it done in a day or two at most.

First you need to ask the public health experts for their wish list.

Let's assume they ask for national rules on wearing masks, closing risky indoor spaces like bars or gyms (or whatever they say), and setting up cordon sanitaires in some places (like in the Maritimes).

As a lawyer, you take that public health wish list, and draft a rule for each one. An example:

"Every person within Canada shall wear an approved face mask in an indoor public place, unless diagnosed by a medical practitioner with a medically incompatible disability."

You write a number of rules like that one, you define terms and words, you include a preamble declaring that COVID is an emergency which imperils Canada's Peace, Order and Good Government--and hey presto, you have an interim order.

It's easy and effective. Just do it.

* fin *

Endnotes:
Re: Anti-Inflation Act, [1976] 2 S.C.R. 373; Ontario (AG) v. Canada Temperance Federation, [1946] AC 193; Re Assisted Human Reproduction Act, 2010 SCC 61.