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

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 APRIL 24, 2020 REVISIONS TO THE MANDATORY ORDER

• Individuals may now approach within 2 metres of the members of one other household (the "bubble household") mutually agreed upon by both households;¹
• Individuals may now drive passengers from other households (apart from the "bubble household"), as long as there is compliance with requirements of the Chief Medical Officer of Health for carpooling (including that such passengers sit in the back seat);²
• Large gatherings, such as festivals and concerts, are cancelled until December 31, 2020;³
• Individuals may attend outdoor religious services, provided attendees are in vehicles 2 metres apart;⁴
• Limitation periods on legal proceedings imposed by provincial acts, regulations, rules, municipal by-laws, or ministerial orders are retroactively suspended as of March 19, 2020. They will remain suspended no later than 90 days after the end of the state of emergency;⁵
• Pharmacists are directed to provide patients with a 90-day supply of medications, unless a particular medication is in inadequate stock. The previous restriction on pharmacists to only provide a 30-day supply of medications has been lifted;⁶
• Golf courses, driving ranges and marinas are allowed to open to the public.⁷

GENERAL BACKGROUND

Q. What is a state of emergency?

A. 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".⁸

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.⁹

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".¹⁰ 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.¹¹

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; 2) as needed for work; and 3) 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);¹²
• Employers are required to take every reasonable step to ensure minimal interaction of people within 2 metres of each other, and must comply with all advice given by New Brunswick's Chief Medical Officer of Health;¹³
• 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;¹⁴
• A wide range of businesses and other institutions are prohibited from admitting customers or providing in-person services (subject to various exceptions set out in the order);¹⁵
• Owners and occupiers of any building or land must take all reasonable steps to prevent gatherings, and to prevent persons who do not reside together from coming within 2 metres of each other. This does not apply to: 1) persons required to gather for work purposes; and 2) attendance at outdoor religious services, where all attendees are in vehicles 2 metres apart;¹⁶
• Large gatherings, such as festivals and concerts, are cancelled until December 31, 2020;¹⁷
• Every person who has been outside of Canada 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;¹⁸
• All unnecessary travel into New Brunswick is prohibited;¹⁹
• Every person seeking to enter New Brunswick is required to stop for questioning by a police officer and can be turned away. Every person who is permitted to enter the province is required to then self-isolate for 14 days;²⁰
• Every person directed by a physician or police officer to self-isolate must comply;²¹ and
• All open fires are prohibited until May 1, 2020.²²

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.²³

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.

On April 24, 2020 the Premier announced a four-phase recovery plan that the provincial government intends to follow (provided there is no resurgence of COVID-19), with a progressive loosening of restrictions at each phase. Details of this plan are provided here: https://www2.gnb.ca/content/gnb/en/corporate/promo/covid-19/news/news_release.2020.04.0226.html

INTERPRETATION OF THE MANDATORY ORDER

Q. What do I have to do if I am required to self-isolate?

A. Every person who is required to self-isolate must stay in their home during the period of self-isolation, except in the event of "a medical emergency, a fire or similar danger in their home, or a need to attend a scheduled COVID-19 test." The mandatory order states that a person's home "includes their entire living space, including any balcony or yard, except where such outdoor spaces are shared with persons who are not members of their household".²⁴

Q. What is considered "unnecessary travel" into New Brunswick?

A. While "unnecessary travel" is not specifically defined, the mandatory order states that "unnecessary travel" includes "non-residents of New Brunswick entering New Brunswick to make or receive purchases or to visit or for other social purposes".

On the other hand, "necessary travel" is deemed to include travel by "residents of other provinces who must enter New Brunswick to work or to receive medical treatment, commercial vehicle drivers delivering goods, residents of Campobello Island entering to access essential goods or services ... [and] travel required to facilitate children sharing their time between parents." Further, the mandatory order states that "New Brunswick residents who have been out of province temporarily continue to be permitted to return home".²⁵

Q. Am I still required to pay rent during the state of emergency?

A. The state of emergency and mandatory order do not relieve residential or commercial tenants from their obligation to pay rent. However, until May 31, 2020, landlords cannot require residential tenants to vacate any leased property for non-payment of rent that came due on or after March 19, 2020. Similarly, with respect to commercial and other non-residential tenancies, until May 31, 2020 landlords cannot provide a notice to quit to tenants or re-possess leased property for non-payment of rent that came due after March 19, 2020.²⁶

Q. Does the prohibition on "open fires" prevent me from having any type of outdoor fire?

A. Some types of outdoor fires remain permitted. "Open fires" is defined as "any burning where combustion products are not vented through a stack or chimney... [including] the burning of grass, debris and other woody material". However, the mandatory order stipulates that "open fires" does not include fires in CSA-approved screened outdoor fire places, stoves and BBQs that burn gaseous material or briquettes, wood fires for the purpose of boiling sap to produce maple syrup, or burning under a valid permit issued by the Department of Natural Resources and Energy Development.²⁷

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.²⁸ 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.²⁹

Once arrested, police must either release the person or bring them before a judge within 24 hours of the arrest.³⁰ 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).³¹

In addition to the arrest powers under POPA, the mandatory order gives police officers the power to return any person who has travelled into New Brunswick unnecessarily to the interprovincial border through which they entered.³²

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.³³ 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),³⁴ and can even order up to ninety days' imprisonment for repeat offenders.³⁵

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.³⁶ 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."³⁷

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.³⁸ 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.³⁹

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.⁴⁰

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.⁴¹

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 (April 24, 2020), para. 20.

2 Renewed and Revised Mandatory Order (April 24, 2020), para. 20; Guidance Document of General Public Health Measures During COVID-19 Recovery, Office of the Chief Medical Officer of Health (April 24, 2020): https://www2.gnb.ca/content/dam/gnb/Departments/h-s/pdf/COVID19_recovery_phase-1_guidance_document-e.pdf

3 Renewed and Revised Mandatory Order (April 24, 2020), para. 21.

4 Renewed and Revised Mandatory Order (April 24, 2020), para. 10.

5 Renewed and Revised Mandatory Order (April 24, 2020), paras. 27(a) and (b).

6 Renewed and Revised Mandatory Order (April 24, 2020), para. 27.

7 Renewed and Revised Mandatory Order (April 24, 2020), para. 7.

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

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

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

11 This article is updated to the Renewed and Revised Mandatory Order issued on April 24, 2020.

12 Renewed and Revised Mandatory Order (April 24, 2020), para. 20.

13 Renewed and Revised Mandatory Order (April 24, 2020), para. 12.

14 Renewed and Revised Mandatory Order (April 24, 2020), para. 13.

15 Renewed and Revised Mandatory Order (April 24, 2020), paras. 1 (re: food and beverage businesses), 2 (re: lounges and special facilities licensed under the Liquor Control Act), 3 (re: retail sales and similar public facing business operations), 4 (re: exempt business operations), 5 (re: listed business operations, sports and leisure venues, and other institutions prohibited from admitting patrons), 6 (re: exemption for campgrounds), 7 (re: exemption for golf courses, driving ranges, and marinas), 8 (re: regulated health professionals), 9 (re: unregulated health services providers), 11 (re: childcare operations), and 14 (re: schools, colleges, and universities).

16 Renewed and Revised Mandatory Order (April 24, 2020), para. 10.

17 Renewed and Revised Mandatory Order (April 24, 2020), para. 21.

18 Renewed and Revised Mandatory Order (April 24, 2020), para. 15. This requirement does not apply to persons exempted by the Chief Medical Officer of Health. Note that, since March 25, 2020, persons entering New Brunswick who have travelled internationally are also subject to mandatory self-isolation requirements imposed by the federal government under the Quarantine Act, SC 2005, c 20.

19 Renewed and Revised Mandatory Order (April 24, 2020), para. 17.

20 Renewed and Revised Mandatory Order (April 24, 2020), paras. 16-17.

21 Renewed and Revised Mandatory Order (April 24, 2020), para. 19.

22 Renewed and Revised Mandatory Order (April 24, 2020), para. 26.

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

24 Renewed and Revised Mandatory Order (April 24, 2020), paras. 15, 16, 19. Persons entering New Brunswick who have travelled internationally are also subject to mandatory self-isolation requirements imposed by the federal government under the Quarantine Act, SC 2005, c 20.

25 Renewed and Revised Mandatory Order (April 24, 2020), para. 17.

26 Renewed and Revised Mandatory Order (April 24, 2020), paras. 23-24.

27 Renewed and Revised Mandatory Order (April 24, 2020), para. 26.

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

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

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

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

32 Renewed and Revised Mandatory Order (April 24, 2020), para. 18.

33 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.

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

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

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

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

38 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).

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

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

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

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.