The Quebec government adopted Order in Council 223-2020 (the "Order") in response to the COVID-19 pandemic. This Order stipulates the suspension of all workplace activities in Quebec, except for those providing priority services. This suspension has been extended until May 4, 2020.
Priority services that can be maintained are identified in the schedule of the Order.[1] Recently, however, as a result of the terms of the Order being interpreted too broadly at times or upon receiving complaints from the public or employees, government authorities have significantly increased their site inspections and visits of businesses that are still in operation.
The potential consequences of failing to comply with the Order regarding non-priority services were already examined in a previous bulletin.[2] However, what powers do the relevant authorities have to enforce the Order?
Law Enforcement Powers
Under section 139 of the Public Health Act,[3] police officers may issue a fine or notice of offence if any of the imposed measures are contravened. Examples of this would include a business operating in a non-priority sector that fails to suspend its activities (excluding remote work or online business, which are permitted in all circumstances) or individuals who fail to comply with the social distancing requirement of at least two metres.
Clearly, like any other police intervention, enforcement of the Public Health Act is subject to a body of law that includes the Canadian Charter of Rights and Freedoms,[4] Charter of Human Rights and Freedoms[5] and Code of Penal Procedure.[6]
As such, given the declaration of a state of public health emergency in Quebec as a result of a serious threat to the health of the population that is real or imminent, these legal rules must be adapted accordingly.
In fact, the state of emergency caused by the public health crisis allows for the expansion of certain police powers.
This expansion of police powers rests on the notion of a state of emergency and the purpose of the measures that were implemented, namely, protecting the health and security of the population. As such, in this type of context, the police may take certain actions that they wouldn't normally be able to take.
It is well established that police officers may not enter a private premises without prior legal authorization (or "warrant"). However, given the public health emergency, they may now enter a private premises if they have reasonable grounds to believe that the Public Health Act is being contravened and that there is a risk to the health of those inside. A warrant is therefore not required.
It should be noted that public health officials recently declared that any person in Quebec must be considered as potentially infected due to community infection now underway. As a result, law enforcement authorities are required to be more strict in dealing with those who contravene the measures implemented by government authorities.
In this context, when police officers are required to visit a business following a report of non-compliance with the Order in relation to its activities or the security of its employees, the police may enter the place of business in order to verify the situation, without any prior legal authorization.
An employee in a position of authority in the business who is on-site may therefore not refuse access to the police officers, otherwise they may be subject to prosecution and/or arrest,[7] because such an action may constitute obstruction of police duties. The police's right to enter the premises does not mean that they have the power to conduct a search and seize property, except with regard to offence-related property that is in plain view. Therefore, the police may not conduct a search of the premises or seize documents without having obtained prior legal authorization. They may nevertheless record, for example, their general observations regarding the premises and identify the persons in charge in order to complete their investigation report.
Law enforcement officers may also question the persons in charge or employees present in the premises; however, the latter are not required to answer the police officers' questions.
The police may also, as mentioned in a previous bulletin regarding the consequences of non-compliance with the Order,[8] arrest individuals to stop an offence. Any person arrested will, however, be freed on the premises under certain conditions, unless such detention is justified in the public interest.
It is also important to note that the business may, and should, communicate with its lawyers when the police arrive at the premises. The police may, however, proceed with their intervention without delay and without the presence of the company's lawyers once they have informed the employee in a position of authority who is on the premises of the reasons for their intervention.
Note that, if the current emergency situation justifies a larger derogation of Charter-protected rights, these rights nevertheless continue to apply. The police and the Director of criminal and penal prosecutions (Directeur des poursuites criminelles et pénales, the "DPCP") must therefore show that the expansion of any power that infringes any right protected under the Charter is justified, especially in terms of the way it is exercised. The fundamental legal principles of our society remain unchanged and any action by the government continues to be subject to judicial review. However, given the case law in this area, contesting any police intervention should be done after rather than during the intervention.
Lastly, following their intervention, the police must submit the investigation report to the DCPC. In principle, and unless there is an obvious breach of the Order (in which case the DPCP will order immediate measures), a team of DPCP prosecutors appointed for these types of matters will analyze the facts before determining whether to institute any legal proceedings against a business under the Public Health Act.
It is important to note that just like any other measures implemented by the Quebec government, the intervention by law enforcement authorities is evolving and increasingly also entails an intervention by the Commission des normes, de l'équité, de la santé et de la sécurité du travail (the "CNESST").
Intervention of the CNESST
Some law enforcement agencies recommend that their officers involve an inspector of the CNESST in the matter. The CNESST's involvement thereby allows enforcement of the powers provided under the Act respecting occupational health and safety (the "AOHS"),[9] which has as its purpose, the "elimination, at the source, of dangers to the health, safety and physical well-being of workers."[10]
As part of their intervention, with or without the police, a CNESST inspector will first assess the measures implemented by the employer to protect the health, safety and physical well-being of the workers. Then, the inspector may require the business to justify, such as by providing documents and contracts, the provision of its priority services only and the number of employees required for such purpose. This inspection will be even more exhaustive for a business whose activities are a priori non-essential.
An inspection may result in serious consequences for any business that is found to have contravened the Order.
Conclusion
The measures imposed by the Quebec government are intended to ensure the health and safety of citizens. Given that there is an urgent need to act and that public interest favours a stricter interpretation of the measures, the authorities have greater latitude in enforcing public health laws.
Accordingly, we recommend properly assessing the situation upon the arrival of the police at the company's place of business, including trying to limit the scope of the intervention.
[1] For a complete and updated list, see https://www.quebec.ca/en/health/health-issues/a-z/2019-coronavirus/essential-services-commercial-activities-covid19/.
[2] Bulletin: Possible Consequences of Non-Compliance with the Government Order Concerning Non-Priority Services
[3] CQLR, c S-2.2
[4] Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[5] Charter of Human Rights and Freedoms, CQLR c C-12.
[6] CQLR c C-25.1
[7] For a description of these powers, see section 129 of the Criminal Code and article 75 of the Code of Penal Procedure.
[8] Bulletin: Possible Consequences of Non-Compliance with the Government Order Concerning Non-Priority Services
[9] RLRQ, c S.-2-1.
[10] Art. 2.
