Welcome to the Rule of Law Matters podcast. If you're wondering what the Rule of Law means and why it matters, this is the podcast for you. This is season one, episode seven, COVID 19 and the Rule of Law Part 2. This podcast is brought to you by the Law Society of BC. The Law Society is a regulatory body that protects the public by enforcing professional standards for lawyers in our province. We bring you this discussion today to raise awareness about the importance of upholding the rule of law. Here's your host.
Jon Festinger
I'm your host Jon Festinger. I'm a member of the Law Society's Rule of Law and Lawyer Independence Advisory Committee. I'm also a lawyer and I teach at UBC's Allard School of Law and the Thompson Rivers University Faculty of Law.
We are very fortunate to have with us Tracey Bailey QC who is a lawyer based in Edmonton, Alberta. Tracey Bailey has worked in the area of health law, policy and ethics for almost 30 years. She practices law as counsel with Miller Thomson where she advises public and private health system and health professional clients focusing on regulatory, strategic and risk management advice and government relations.
Tracey is also an associate adjunct professor and core member of the John Dossetor Health Ethics Centre in the Faculty of Medicine and Dentistry at the University of Alberta and has been affiliated with the centre for close to two decades. Prior to returning to private practice, Tracey had an academic appointment as executive director of the Health Law Institute at the Faculty of Law, University of Alberta. She subsequently served as corporate counsel for the Alberta Ministry of Health and as general counsel health law for their Department of Justice. Tracey has taught public health law and ethics for law students and health professional graduate students and she is also senior editor of Public Health Law and Policy in Canada, the first Canadian text on public health and the law which is now in its fourth edition.
Welcome Tracey and thank you very much for joining us.
Tracey Bailey
Thanks Jon, I'm really happy to be here.
Jon Festinger
Tell us more about your background which really seems to have prepared you for this particular moment in history where we are grappling with COVID 19 and its implications. How do you see health law intersecting with broader issues of the rule of law?
Tracey Bailey
Well, Jon, public health law powers are immense, they are extreme powers only to be used in exceptional circumstances and so even if we weren't in the middle of a pandemic, even if we weren't in the middle of a public health emergency, there is, there are such important intersections between the law and the society that we live in living in a free and democratic society like we do. But in a pandemic in particular, when you get a declaration of a public health emergency made, massive powers that wouldn’t normally be tolerated by most of us in normal every day society kick in and there are all sorts of important questions to think about, to discuss about, when do we use those powers, to what extent, what's appropriate, what's not appropriate.
Jon Festinger
So let's skip back to your background, you know I went through pretty lengthy version of you CV and your qualifications but in all of that time and in all of that effort, you've learned some things, learned some principles, been in some rooms that will help us illuminate where we are. Can you give us a sense of what you learned when and how that relates to the current controversies and issues that we see in the pandemic that we're facing worldwide?
Tracey Bailey
Well, one of the most important things that I learned Jon is that it takes a team to make good decisions in a public health emergency such as we're in. You can't only relay on one type of advice. Now, public health advice from your legal advisor is going to be important, public health advice from your chief medical officer of health or public health officials absolutely crucial, advice from healthcare professionals, people on the frontlines, economic advisors, there are a lot of people that need to be part of the decision making process to come out with the best decision, especially one that's going to have such an impact on all of us.
Jon Festinger
Two related questions, and I know, and you can tell us how related or not, but when we look at the United States, it seems that that's a good starting point for how things can go wrong, how information can be either too politicized or can be not shared as transparently as needed and where politics can kind of rule the day and create divides and misunderstandings and camps. So let's start there; what lessons can we learn from the US that can improve our practices and our approaches and our understanding even of the rule of law in Canada?
Tracey Bailey
So one of the important things I would say about the use of public health powers, those massive powers I refer to, is that normally to start with, even in the context of an emergency, we wouldn’t pull out the big guns, the most powerful tools right off the bat. We would start with education, with counselling, with good communication strategies, but having said that, one of the biggest problems that I've seen in the US is the President quite frankly and it's not in the overuse and underuse necessarily of legal tools, it's his undermining of good public education and communications on what will most effectively contain the spread of this disease, it's undermining of the public health officials and their advice, and his role modeling in not a very positive way of what we can all do in our everyday lives. And sadly, it appears to me that it's divided the public to a large extent in the US along political lines so that it's become a Republican Democratic issue to some extent. Now I'm not saying every Republican wouldn't say it's a good thing to distance and wash your hands and wear a mask in certain cases and vice versa, that's not what I'm trying to convey, but to see the President of the United States undermining his own public health officials in a not, in not a mild way, it has interfered significantly with properly educating people on what will most help contain the spread of this disease and protect the health of the population.
Jon Festinger
All right, well let's zero in on that and start bringing in the Canadian context and Canadian rule of law issues. And before we go to Alberta, your home province, just generally, what do you see as signposts that rules are too relaxed and what are the signposts that government may be going too far? You know how do the public and how do we even as lawyers who are not health experts recognize what we should be looking for in this very tricky balancing act?
Tracey Bailey
So part of the justification of these extreme powers in our public health legislation is that they only be used when needed. They are not there as a substitute for a good communication strategy, as a substitute for good education. They're to be, they're to be used as needed and only as needed. Now, courts and I think the public will cut government and some public health officials a lot of slack particularly in the face of an emergency like this. They don’t expect scientific certainty, they don’t expect that you would have to prove on a scientific basis that what you're doing is absolutely the best or right thing to do, but it should be introduced in a graduated way. So we'd normally start with those more educational measures.
If you look back to the experience that we had in Canada with SARS, whether in Vancouver or Toronto, we learned a lot from that experience but also we saw very different use of public health powers during that experience. Do you remember that in Toronto in SARS for example, tens of thousands of people were quarantined but almost without exception on a voluntary basis? If I'm remembering correctly I think only 27 orders were issued during that whole outbreak in Toronto so most of it was done voluntarily and that's a very different approach than we saw at the beginning of this pandemic when right off the bat we saw governments and public health officials issuing not just orders specific to certain persons but orders applicable to whole groups of us, whole groups of the population. You fly in from the States you must self-quarantine for 14 days. And it's one thing to do it on a voluntary basis, it was another thing to do it on a supposedly legally enforceable mandatory basis.
So that doesn't mean that the approach was wrong, that's you know not what I'm here to comment on but I'm just saying that's an unusual approach historically looking at how these tools have been exercised.
Jon Festinger
Well, you know what will be interesting is you know long after this is over what the postmortem, which I know is a terrible phrase to use in this context, but as we look back, what are we seeing from a rule of law perspective, what can be learned from it, those articles are no doubt going to be learned. You live and work in Alberta and in our, in our constitutional system, there are definitely differences between the provinces; have you seen any unique aspects in how the Alberta government has responded to COVID 19 and can you tell us a little bit about kind of the differences province to province in the statutory basis and therefore the rule of law and administrative law basis for how we deal with health?
Tracey Bailey
So every province and territory in Canada is going to have different legislation and I'll just start by making that point because sometimes we look across the country and we think well that's happening here, it should be able to happen in the province next door for example. That's not necessarily the case because of the way, because of our constitution, because of who has the authority to make which laws. We do have this variation across the country. It's one of the challenges that decision makers face when they're trying to coordinate a response to a public health emergency like this so you can't necessarily assume that all the legislative frameworks are the same.
So what do I see as some differences when I look at Alberta for example compared to the BC experience, well one thing that I noticed was that in Alberta we actually had orders issued before the public health emergency was declared. We've also had orders issued that are technically orders to classes of persons that our legislation doesn't have, explicitly at least, the authority to issue class orders by medical officers of health. If you look at, by contrast, I mentioned SARS, if you look to the legislation in BC and Ontario because of those provinces experience with SARS, they realized they needed class orders. In Ontario for example they wanted to quarantine a high school with 1700 students during the SARS outbreak and all of a sudden realized the medical officer of health would have to sign off on 1700 orders so they amended their legislation in the midst of the crisis.
And you know it just, it's not to criticize governments in this day and age, it's to say that some provinces because of their unique experience learned from that and amended their legislation accordingly.
Jon Festinger
Well, without asking you to be an expert on British Columbia's Emergency Programs Act, it might help our listeners to know what the difference is between a public health emergency and a state of emergency. Can you deal with that?
Tracey Bailey
So again, every province is different. In BC for example you've got two pieces of legislation, your Emergency Programs Act, and that's the act under which you've got an emergency declared that brings into force all sorts of extraordinary powers. You've also got a Public Health Act and your Provincial Officer of Health issued a notice which allows some extraordinary public health powers to kick in under your public health legislation so that's how BC does it. Alberta, by contrast, we've got both kinds of emergency legislation but right now, we've only got a declaration under our Public Health Act and it's all that we need. So there's going to be variations like that across the country but across the country, all of the provinces and territories have declared a state of emergency. Alberta's lapsed for a while, which was a bit interesting.
Jon Festinger
Well it sure is going to be interesting once this is all a nightmare in the rearview mirror to actually get data, compare data, to the legal processes province by province and in fact state by state throughout the world and start figuring out for the future what seems to work better and what seems to work not as well. Everybody doing that in real time is obviously what's happening but it can result in some very strange conclusions or some conclusions that are underappreciated or over shouted.
And that you know relates to the complications that the media brings as immediate megaphone to all of this. So one thing that happened in Alberta is that there were media stories about the, that gave details of various meetings between provincial health authorities and political figures and the politicization of the process but tells us a little bit about what that relationship between politics and health can be and what it looks like in those rooms that you've been in and how that relates to the rule of law and what we must do to protect the rule of law in the context of everything, one way or another, being at least somewhat political.
Tracey Bailey
So yeah, I think what you're referring to is some information that appeared to be leaked about behind closed door meetings with our Chief Medical Officer of Health and other public servants and some discussion about some maybe combative, if that's the right way to put it, interactions between the chief and government officials. That doesn't mean that that's necessarily, from a societal point of view, a bad thing. Everybody has their role, it's the Chief Medical Officer of Health's role under Alberta's Public Health Act to provide advice and recommendations to government.
I would be very concerned if what was leaked was information that the government was not meeting her, was not hearing her advice, was not taking her advice into consideration but that is not what I at least read in the media about those leaks. It was that they didn't always act on all of her advice or accept all of her advice.
To me that doesn't necessarily signal a problem with the decision making process, if you're an elected official in a democracy you're, you should be listening to your chief medical officer of health and taking into account her advice very seriously and it should be part of your decision making process. But you're also going to hear from legal advisors, economic advisors and other advisors, people at the frontlines of the health system and people living elsewhere and the negative impacts that they're suffering and you're going to take all of that into account in making decisions and that is appropriate in the system that we have.
We don’t have a system where a public health official who is unelected is independent and is calling all the shots but I would say in a democracy that's appropriate, it's a balancing act. We want some, a great degree of independence of our public health officials so that they can provide the best advice and inform us as to what we should be doing and not doing, but we need to support that democratic manner of government.
Jon Festinger
Great, let's start dealing with a couple of specifics that I'd love your comments on Tracey. So the BC Ombudsperson, Jay Chalke, determined that two orders made by the BC Government under the Emergency Programs Act were unlawful. The BC Government has since addressed those findings here. In Alberta, have there been any orders made that seemed to exceed what legislation permits?
Tracey Bailey
So looking at Alberta and elsewhere in Canada, I would say in my opinion yes. Now, let me just add one thing before I go on; I very much doubt any government is taking steps thinking that they're doing anything unlawfully, or at least I'm prepared to give them the benefit of the doubt on that front, particularly in the midst of an emergency. In the future, I'm prepared to do that if in the future governments put their mind to fixing the problems with the public health legislation where they realize gaps exist as a result of their experience.
But yes, I've seen examples where I think there's no proper legislative authority. I've seen challenges being made and a lot of the challenges or let's say discussion about improper law that I've seen being made are based on our Charter of Rights and Freedoms, but I think some of the more fundamental issues are looking back to the legislation, does it actually give the authority to do what has been done and I've seen some orders issued where I have questions about whether there's proper legislative authority to take the actions that have been taken in some instances.
Jon Festinger
Not asking you for a laundry list but can you give just a couple of examples that you think perhaps could be looked at more deeply?
Tracey Bailey
Well, one example I mentioned earlier and that's the example of the class orders. Ontario and BC, because of their experience with SARS, changed their legislation to provide for the authority for medical officers of health to issue quarantine orders, for example, to classes of persons. Now I think people would argue, some people may argue, that there's authority in the Alberta legislation to do that but I guess all I can say succinctly is I don’t agree. I think there is a lack of sufficient authority for some of the orders that have been made on that front.
Jon Festinger
That's super helpful. Let me go to a couple of other issues for your comment. So in November, both the BC Provincial Health Officer and the Chief Medical Officer of Health for Alberta issued orders that restricted gatherings in homes. Some of our listeners may be wondering to what extent the government can control what we do in our private homes, what laws allow government to do that, and how far that goes in terms of monitoring us, checking what we're doing in our homes; what is government allowed to do or not allowed to do? Pretty important rule of law issues ultimately.
Tracey Bailey
Absolutely, and particularly given that, now I'm not the expert on this so someone may correct me but to my knowledge, this is an unprecedented use of these powers in history, at least in Europe and North America in terms of managing an outbreak or pandemic or epidemic situation.
So I can think back to, like lots of examples about isolation of families, isolation of people in hospitals whether they were already hospitals or a building turned into a makeshift hospital in cases for example of smallpox outbreaks. I can think of you know examples going back to 17th century England where a village, Eyam, put themselves voluntarily into a lockdown because so many of their people were dying from the Plague and they wanted to protect the surrounding communities.
I can't think of an example in history where the entire population has been affected with essentially a restriction like this, particularly relating to what we can and can't do in our own homes. So it's unprecedented. That doesn't mean it's the wrong decision but I'm just saying it's a pretty big, unprecedented step.
What does a court look at if a law like that was challenged? I think one of the key things they'd look at, in addition to whether the legislation provided for it or not is does it comply with our constitution and in particular our Charter of Rights and Freedoms. So you know you think about an order like that restricting who can come into our home to visit and what a court would consider is well first of all, is a freedom or right breached under our Charter and let's just cut to chase and assume yes, okay, I think there'd be a lot of those that we could call into question. Now in our free and democratic society under our Charter, sometimes government gets to breach our rights if, as Section 1 of the Charter says, it's justifiable in a free and democratic society and there are some things that a court will look at to think about whether that's the case.
So the first question a court will ask is well did government have a pressing and substantial concern when they said I can't have visitors to my home. I think in the context of the COVID pandemic, I'm going to take a wild guess but I think the answer to that would be yes, they had a pressing and substantial concern. The second question a court's going to ask is is their goal of containing the spread of this disease rationally connected to the limitation imposed, i.e. is the goal of containing COVID and the spread of COVID rationally connected to saying Tracey, you can't invite your friends over for dinner tonight, you know, and so to what extent can they restrict who comes into our home or not?
The third question they're going to ask is does the limitation they've imposed impair my right in a minimalistic fashion. That's not necessarily oh the most minimal thing that they can possibly do, but in other words, could they have achieved the same effect through other means that aren't so intrusive on my rights.
And the fourth and last question they consider is, is there proportionality between the benefits of the restrictions, the benefits of saying Tracey you can't invite people over, and its harmful impacts. So while the tool doesn't have to be the least possible restriction as I say, they've got to, the court's got to consider that the benefits and harms were weighed appropriately. And those legal considerations are absolutely essential to balancing the public health interests of society against the freedoms of individuals in a democratic society particularly thinking about the coercive use of public health powers and the justification of that use.
Jon Festinger
So if I can you know jump in to contextualize a bit, because you've really run through the Section 1 analysis, the interesting thing here is we're trying to determine these things in real time which is really difficult no matter where people are on the political spectrum, and where any particular government anywhere in the world is. But it's going to be very, very interesting to the extent that these issues get to our courts, they're going to get to our courts after the pandemic is over it looks like and there's going to be a lot more data and a lot more information about what worked and didn't work, and I would suggest that to the extent courts make determinations about this, they're not going to only be making it to figure out what was right in retrospect, in fact the court's going to be, as courts often are, future looking.
And when they determine what rights and what's the right approach, they're going to be looking at what we can learn from this pandemic and what history has taught us in interpreting administrative law for the future, if I can put it that way. So it's going to be a very interesting time and it's going to be a fascinating analysis for us as lawyers but with huge implications going forward, not just for health law but for in fact how we look at rule of law issues and how we look at administrative law issues going forward. You know feel free to push back or tell me I'm being too broad and sweeping here.
Tracey Bailey
No, I completely agree, and just that, not only that but if what's in the legislation is appropriate. So you look again at Alberta's public health legislation as an example, normally you could not go into someone's home to enforce anything under the Public Health Act unless you've got the consent of the owner or you've got a court order but once a public health emergency is declared or for 60 days after it lapses, the minister or a regional health authority can authorize entry into any building or on any land without warrant to address the public health emergency. So is that power appropriate? What will society say? What will the courts say about that at the end of the day if they're called to examine that?
Jon Festinger
So let me sort of bring us towards the end with a couple of short snappers that I want your immediate reaction to and the first one is, I don’t want to even call it the elephant in the room, it's the giant elephant in the political world that we've been facing over the last few months: masks. You know, so many issues, so much controversy, so much libertarianism.
BC and Alberta have made masks mandatory in all public indoor spaces. There are people who feel that masks are forcing, forcing people to wear masks is a grave infringement of personal freedom. There are others like me who really don't see the big deal and don't see any politics in wearing a mask whatsoever so there's so much out there. What's your take on masks in this rule of law context?
Tracey Bailey
Well, in legal terms, can a law be passed to enforce mask wearing? Probably yes, because look it, we've got seatbelt legislation, we've got legislation saying you have to wear a helmet if you're riding a motorcycle. Both have been challenged under our Charter and the courts have upheld those as constitutionally valid. So is it okay? Yes and with a few exceptions. I'd say is it being done sensibly, you know like practically. So it's one thing to say you must wear a mask indoors if you can't physically distance. It's another thing to say you must wear a mask outdoors while you're going for a jog around Stanley Park with nobody in sight, right, so you know I think it in part it will depend on the details of these different orders that are put into place and are there appropriate exceptions or exemptions that are applicable.
Now the ones that I've taken a look at yes, you know there are exemptions for people with medical conditions, for young children, for, you know for situations where people can't appropriately wear a mask. All of that has to be taken into account just practically and sensibly but yeah, do you, can you enforce the wearing of masks if it makes some sense to do so in certain situations? Absolutely.
Jon Festinger
Next short snapper, huge factor and in fact in the divisions that you alluded to earlier, the media and that megaphone. What do you expect of the media in a global pandemic? What would you like to see that you're not seeing, and what do you think has been done well and in asking the question, you know I have to be the first to point out that the media is not a monolith, there are many different kinds of media across the spectrum so I'm really asking you, especially in the context of a short snapper, to do a lot so let me acknowledge that.
Tracey Bailey
You're quite right, the media is not a monolith and I get that you know different journalists, different media outlets, have different aims to them, different goals, but my hope for the media, the reason that I think the media is so important is to essentially inform good public discourse. You know how can we make sense of all of this, how can we make good decisions for ourselves and for the people around us, for our neighbours, for broader society, if we don't have good information from reliable sources and responsible reporting?
So a lot of this isn't on the media per se, it's on the people that provide information to the media but the media to the extent that they can get the information they need, I hope, and in particularly in the context of this public health emergency, really does their duty the way I see it at least, which is to inform us, inform us properly in a, with the proper context about the best information on an ongoing basis. I know it's a challenging, challenging task especially when for example the laws seem to change on a daily and weekly basis. You know even if you're in the thick of things it's really hard to keep up on all of these changes but we need, the public needs, good sources of reliable information and responsible reporting.
Jon Festinger
Last short snapper. We are looking at an unprecedented time when we come beyond COVID, we don’t know what that's going to look like. It's been totally different to have COVID certainly for this generation, we've all seen and faced things we haven't seen and faced before; when it comes to the law, it is interesting to wonder what the next phase is going to be. Are we going to see a ton of lawsuits that are COVID related, that people were infected negligently with consequences? Are we going to see government passing legislation that minimizes that kind of litigation? How do you see the future evolving in terms of COVID related litigation going forward?
Tracey Bailey
So I think we're, as far as I'm aware, there has been litigation commenced. I'm not on top of all of it across the country but it has been an issue, and I think normally we would expect this kind of thing. We've seen it occur before with past outbreaks such as SARS, with respect to outbreaks related to West Nile Virus, and normally lawsuits like this would be based on a negligence action where certain things have to be proven, but at least three provinces have enacted legislation to limit liability on the part of a number of organizations, in other words to shield them to a great extent to litigation with respect to COVID. British Columbia, Ontario and Nova Scotia are the three jurisdictions that I'm aware of. They've done it in different ways. They’ve done it with a different scope of application but they've all basically said unless you're grossly negligent, extra negligent, that you can't be successfully sued for a person's exposure or potential exposure or infection with COVID as a result of something done or not done.
We've also got our usual public health liability protection and it's going to vary across the country depending on that public health legislation but it generally protects certain individuals, organizations and government from litigation. I think you raised, Jon, the question about litigation against government in particular. We've seen lawsuits like that against government in the past. It's hard to sue a government. It's hard to impose a private duty of tort law on a government and having said that, it's not a complete nonstarter but I think in the context of this type of outbreak, practically it will be. I think that courts will be very deferential to government decision making in the context of a public health emergency and it's hard to imagine a successful litigation against government in this context.
Jon Festinger
Well let me ask a final future facing question. We move along into the vaccination process and its distribution. How should vaccines, how can vaccines be fairly distributed? What sort of process does government have to follow in making that determination?
Tracey Bailey
This would be a normal part of preparing for and then dealing with a public health crisis like this, determining an ethical framework for decision making, in particular with respect to the allocation of scarce resources. We've only got so much vaccine or we've only got so many ICU beds for example, and there are situations that will arise where we can't get more, we can't immediately get more ICU beds or staff to man them, we can't get more than a certain amount of vaccine at a particular point in time, and so to your point, how does a government properly, ethically make those decisions.
So not everybody is going to agree on the ethical basis for those decisions being made; what I think is important to agree to is that an ethical framework for decision making be in place and I think that even ethical experts, so to speak, may disagree about the principles that should be used but there are some fundamental things that are likely to find a lot of common ground amongst people such as all people should be treated with respect and all people are of equal value and that we shouldn't discriminate against people.
Now does that mean that everybody gets equal access to the vaccine? Well no, this is by definition, if it's a scarce resource and we've got to allocate it, we've got to figure out how to divvy it up. So how do we do that? It can be based for example on the most efficient use of the vaccine or who's going to have the most medical benefit? What's the most cost effective use? I think there's going to be a lot or argument, and justifiably so, for giving priority for, to healthcare workers for example so that they can continue to go and care for people that are ill whether it's from COVID or from other causes.
And so there's a number of ethical bases for this decision making, the most important thing is that we have a framework in place and to the extent possible we have that framework in place before we're in the middle of a crisis. You know now not all decisions can be made until you're in the crisis and you know the details of what you're addressing, but to have a fundamental underlying ethical basis for these decisions is essential.
Jon Festinger
Awesome. Thank you very much Tracey for being here and sharing your knowledge and the accumulation of many years of experience in dealing with health law and health ethics. I think this will be very, very interesting to our audience and sometime when this is all over, it would be fascinating in a year or two to do a bit of a retrospective on what we've learned from COVID going forward.
Tracey Bailey
Well thanks so much Jon and thanks to the BC Law Society. I think this podcast series on the rule of law is a fantastic idea and I wish them the best of luck in continuing with this series and I hope it engenders a lot of good discussion around these issues. Thanks so much.
Jon Festinger
I'm going to quickly sum up our conversation in a few sentences. Tracey Bailey walked us through some of the differences between legislation in BC and Alberta as they relate to emergency powers. She explained the relationship between the medical officer and government officials and why it's so important that government officials consider a wide range of advice. We talked about the need for public education and access to accurate, evidence based information during a pandemic. We touched on some hot topics like orders limiting gatherings in our homes, rules around mask wearing, and what fair vaccine distribution might look like. We also fast forwarded to a post COVID 19 world and whether we might see litigation from those who feel they were not properly protected from the disease.
Thanks for listening. If you want to find out more about the rule of law, visit the Law Society's website at lawsociety.bc.ca. Vinnie Yuen was our very capable producer today. This is your host, Jon Festinger, signing off.