Bill would give N.B. medical health officer more power to issue orders

Long-running states of emergency during pandemics may soon be a thing of the past in New Brunswick.

A bill before the legislature would give the chief medical officer of health more power to issue targeted public health orders, making sweeping emergency lockdowns unnecessary in all but the most extreme scenarios.

"What this is doing is giving us a more targeted approach to manage notifiable diseases and outbreaks," said Health Minister Dorothy Shephard.

"Instead of locking down a zone or targeting a zone or a province, we're going to be able to focus it a little more narrowly to perhaps a building, or a city block."

For example, if there were evidence of an infectious disease spreading in an apartment building, the current law requires Public Health to issue an isolation order to each resident individually.

The amendments would let officials notify all residents with a single notice.

They would also allow an entire "class of persons" to be ordered to isolate, such as everyone who had been in contact with an infected person, or everyone who had travelled to a particular location, or everyone who had tested positive for a disease.

The two opposition parties signalled their support for the bill, though they plan to study it more closely during a committee debate before deciding whether to vote for it.

"From the outset I think it is the right thing to do for sure," said Opposition Liberal Leader Roger Melanson.

When the COVID-19 pandemic struck New Brunswick in March 2020, the province lacked the legislative tools to apply focused lockdowns. 

Instead, it relied on the Emergency Measures Act to declare a state of emergency, a blunt instrument that gave the public safety minister sweeping powers to issue emergency orders.

The Blaine Higgs government used the order to do things it would not legally be able to do otherwise, such as closing provincial borders to most travel, banning landlords from evicting tenants for non-payment of rent and forcing restaurants to close dining rooms and later have distanced seating.

The legislation had never been used provincewide before and was designed for short-term emergencies, such as the 2017 ice storm and the spilling of dangerous goods on a highway in 1999.

It allows a public safety minister to issue an order that automatically expires after two weeks unless it's renewed.

The Higgs government kept the state of emergency in place from March 2020 to July 2021, renewing the order, with modifications, every two weeks. A second state of emergency was declared in September 2021 and ended in March 2022. 

Attorney-General Ted Flemming said in a debate in the legislature last year that he was personally uncomfortable with the restrictions imposed on people under the emergency order, even if he accepted they were needed to keep a lid on the virus.

"It goes against my grain as a libertarian, as a classic liberal, small-L," he said.

"My personal view is that an emergency order should never be used except in the most dire emergency cases."

Green Party Leader David Coon called for changes to the Public Health Act in July 2021, arguing Chief Medical Officer of Health Dr. Jennifer Russell would need additional powers to manage outbreaks once the emergency order expired.

He said Wednesday that he'll examine the bill more closely, but so far it seems to contain a lot of what he was advocating. 

"It's a big step in the right direction, because we shouldn't have to, in most cases, rely on the Emergency Measures Act for very long in a pandemic." 

Coon said the risk of overreach with the Emergency Measures Act became clear last fall, when the province used the state of the emergency to order striking hospital workers back on the job, even though their labour dispute wasn't directly related to the pandemic. 

Coon and Melanson quit the all-party cabinet committee overseeing the pandemic response over that move.

Shephard said the changes will allow for accountability by elected officials, because a health minister will have to sign off on any orders by the chief medical officer of health, and any minister would consult cabinet before doing that.