Canada: FAQ: New Brunswick's COVID-19 State Of Emergency And Mandatory Order - May 11, 2020

Answers to Frequently Asked Questions that every New Brunswicker should know

On March 19, 2020, the Province of New Brunswick declared a state of emergency under the Emergency Measures Act and issued a mandatory order in response to the threat posed by COVID-19 to public health and safety. As with similar measures taken by other provinces and governments around the world, New Brunswick's state of emergency and mandatory order are having profound impacts on the daily lives of all New Brunswickers, as well as on New Brunswick-based businesses and other organizations.

In this article we answer some frequently asked questions about the state of emergency and mandatory order, including in regards to the specific measures implemented by the mandatory order and the potential legal consequences for individuals and organizations that do not comply.

UPDATE: HIGHLIGHTS OF MAY 8, 2020 REVISIONS TO THE MANDATORY ORDER

• Many businesses and other establishments, including restaurants and retail establishments, are now permitted to admit members of the public or provide in-person services. Businesses must continue to ensure minimal interaction of people within 2 metres of each other.¹
• Indoor gatherings of 10 people or fewer are now permitted for religious services, weddings, and funerals, and outdoor gatherings of 10 people or fewer are now permitted for any social purpose. Physical distancing requirements continue to apply to such social gatherings.²
• Individuals are now required to wear masks in public in circumstances where physical distancing cannot be maintained.³
• Police and public health officers are now authorized to enter into any premises to ensure compliance with the mandatory order.⁴

GENERAL BACKGROUND

What is a state of emergency?

New Brunswick's Emergency Measures Act (the "EMA")authorizes the provincial government to take exceptional temporary measures to respond to a wide range of emergencies. The EMAdefines an "emergency" as "a present or imminent event in respect of which the Minister [of Public Safety] ... believes prompt coordination of action or regulation of persons or property must be undertaken to protect property, the environment or the health, safety or welfare of the civil population".⁵

Section 10(1) of the EMA gives New Brunswick's Minister of Public Safety the power to declare a state of emergency in respect of all or any part of the province whenever the Minister is satisfied that an emergency exists.⁶

Once a state of emergency has been declared, section 12 of the EMA provides the Minister of Public Safety a very broad power to "do everything necessary for the protection of property, the environment and the health or safety of persons".⁷ It was under this authority that the Minister of Public Safety issued the mandatory order in response to COVID-19 on March 19, 2020, which has since been renewed and revised a number of times.⁸

Q. What measures have been implemented by the mandatory order?

A. The mandatory order requires individuals and organizations in New Brunswick to comply with several extraordinary measures. These include:

• Every person is prohibited from knowingly approaching within two metres of every other person, except: 1) those they live with and persons from one other household mutually agreed upon by the members of both households; and 2) persons in vehicles who are in compliance with requirements of the Chief Medical Officer of Health for carpooling (including only transporting passengers from another household in the back seat);
• Employers are required to take every reasonable step to ensure minimal interaction of people within 2 metres of each other, except in compliance with guidelines issued by Worksafe New Brunswick and New Brunswick's Chief Medical Officer of Health;
• Employers are required to take every reasonable step to prevent people who show symptoms of COVID-19, or have travelled outside New Brunswick in the previous 14 days, from entering the workplace;
• Owners and occupiers of any building or land must take all reasonable steps to prevent all indoor social gatherings and outdoor social gatherings of more than 10 persons (subject to various exceptions set out in the order);
• Large gatherings, such as festivals and concerts, are prohibited for the remainder of 2020;
• Every person who has been outside of New Brunswick is required to self-isolate within their home for 14 days after their return to New Brunswick, and, if they experience symptoms of COVID-19 during that period, are required to remain self-isolated until they meet criteria set by the Chief Medical Officer of Health;
• All unnecessary travel into New Brunswick is prohibited;
• Every person seeking to enter New Brunswick is required to stop for questioning by a police officer and can be turned away;
• Every person directed by a physician or police officer to self-isolate must comply.

A full text of the most recent version of the mandatory order is available here: https://www2.gnb.ca/content/dam/gnb/Corporate/pdf/EmergencyUrgence19.pdf

Q. How long will the state of emergency and mandatory order last?

A. Under the EMA a state of emergency must end 14 days after it is declared unless it is renewed by the Minister of Public Safety with the approval of the provincial cabinet.⁹

While COVID-19 remains a threat to the health of New Brunswickers, the state of emergency will be renewed multiple times. Also, the terms of the mandatory order will continue to be updated periodically as a result of the dynamic nature of the COVID-19 pandemic and evolving recommendations by public health authorities.

LEGAL CONSEQUENCES OF VIOLATING THE MANDATORY ORDER

Q. Can I be charged with an offence for not complying with the mandatory order?

A.Yes. Failing to comply with the mandatory order is an offence under the EMA.¹⁰ Individuals or organizations that do not comply can be charged and face prosecution under New Brunswick's Provincial Offences Procedure Act ("POPA").

Q. Can police arrest persons who violate the mandatory order?

A. Yes. Under POPA, police officers can make an arrest without a warrant if they have reasonable and probable grounds to believe that a person is committing or has committed a violation of the mandatory order and reasonable and probable grounds to believe the arrest is necessary in the public interest.¹¹

Once arrested, police must either release the person or bring them before a judge within 24 hours of the arrest.¹² In certain circumstances judges can order the continued detention of a person before trial (e.g., where a judge is satisfied that pre-trial detention is necessary for the safety of the public).¹³

Q. What penalties can be imposed for violations of the mandatory order?

A. Generally speaking, individuals or organizations convicted of violating the mandatory order face a fine of not less than $240 and not more than $10,200, plus a 20% Victims Services Act surcharge and a $4.50 administrative fee.¹⁴ However, in certain circumstances, a judge can increase the fine beyond $10,200 (for example, in cases where the defendant committed the offence for financial advantage or to avoid the financial burden of compliance with the law),¹⁵ and can even order up to ninety days' imprisonment for repeat offenders.¹⁶

Individuals who fail to self-isolate following international travel can also be prosecuted for committing an offence under the federal Quarantine Act, which carries a maximum penalty of a $750,000 fine and imprisonment for six months.¹⁷ This can be increased to a maximum fine of $1,000,000 and imprisonment for three years if the offence is committed "wilfully or recklessly" and it causes "a risk of imminent death or serious bodily harm to another person."¹⁸

Q. Can police issue tickets for violations?

A. Yes. Police officers have the discretion to issue tickets to persons that they believe, on reasonable and probable grounds, have violated the mandatory order.¹⁹ A ticket for violating the mandatory order imposes a pre-determined penalty of $292.50, which consists of the minimum fine ($240), plus a 20% Victims Services Act surcharge ($48) and the prescribed administrative fee ($4.50).

As of April 14, 2020, police in New Brunswick can also issue tickets for violations of orders made under the federal Quarantine Act. Under this new regime, police can issue $1,000 tickets to individuals who fail to self-isolate following international travel.²⁰

Q. Can employers be charged for violations committed by employees?

A.Yes. In certain circumstances, employers and supervisors can be charged and convicted of offences committed by employees who violate the mandatory order in the course of their employment.²¹

Q. What are my options if I am charged with an offence?

A. Any individual or organization charged with an offence will be given a date to attend court to answer to the charge, and are entitled to be represented by a lawyer at any court appearance.

A defendant who received a ticket and does not wish to dispute the charge can avoid going to court by paying the fine within the timeframe stated in the ticket.²²

A defendant who was served with an "appearance notice" rather than a ticket and does not wish to dispute the charge may attend court and enter a guilty plea. Both the prosecution and the defence would then be entitled to make arguments to the judge regarding an appropriate sentence.

A defendant who wishes to dispute a charge and enters a plea of "not guilty" is entitled to a trial, during which the prosecution would have the burden of proving they committed the alleged offence beyond a reasonable doubt. At a trial, the defendant or their lawyer would be entitled to cross-examine all prosecution witnesses, present their own evidence, and make arguments to the judge as to why they should not be convicted.

Footnotes

1 Renewed and Revised Mandatory Order (May 8, 2020), para. 6.

2 Renewed and Revised Mandatory Order (May 8, 2020), paras. 4, 14, 16.

3 Renewed and Revised Mandatory Order (May 8, 2020), para. 15.

4 Renewed and Revised Mandatory Order (May 8, 2020), para. 27.

5 Emergency Measures Act, RSNB 2011, c 147, s. 1 (definition of "emergency")

6 Emergency Measures Act, RSNB 2011, c 147, s. 10(1)

7 Emergency Measures Act, RSNB 2011, c 147, s. 12

8 This article is updated to the Renewed and Revised Mandatory Order issued on May 8, 2020.

9 Emergency Measures Act, RSNB 2011, c 147, s. 17

10 Emergency Measures Act, RSNB 2011, c 147, s. 24(1)(b).

11 Provincial Offences Procedure Act, SNB 1987, c P-22.1, s. 119(1)

12 Provincial Offences Procedure Act, SNB 1987, c P-22.1, s. 125.

13 Provincial Offences Procedure Act, SNB 1987, c P-22.1, s. 128(2).

14 Provincial Offences Procedure Act, SNB 1987, c P-22.1, s. 56(6); General Regulation - Victims Services Act, NB Reg 91-67, s. 3; General Regulation - Provincial Offences Procedure Act, NB Reg 91-50, s. 6.1.

15 Provincial Offences Procedure Act, SNB 1987, c P-22.1, s. 58(1).

16 Provincial Offences Procedure Act, SNB 1987, c P-22.1, s. 63(2).

17 Quarantine Act, SC 2005, c 20, ss. 58, 71; Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), No. 2.

18 Quarantine Act, SC 2005, c 20, s. 67.

19 Provincial Offences Procedure Act, SNB 1987, c P-22.1, s. 9; General Regulation - Provincial Offences Procedure Act, NB Reg 91-50, s. 3(1)(a.052).

20 Regulations Amending the Contraventions Regulations (Quarantine Act): SOR/2020-86; Regulations Amending the Application of Provincial Laws Regulations: SOR/2020-87

21 Provincial Offences Procedure Act, SNB 1987, c P-22.1, s. 94(2)(f) and (h).

22 Provincial Offences Procedure Act, SNB 1987, c P-22.1, s. 14.

Originally published May 11, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.