JUSTIFIED OUTBREAK: BRINGING TOGETHER LAW, PUBLIC HEALTH, AND ETHICS DURING AN INFECTIOUS DISEASE EMERGENCY

Abstract

Infectious diseases have recently found renewed significance in Canadian scholarship, with a corresponding increased interest in Canada’s overall preparedness, including legal preparedness, to combat infectious disease emergencies. Nearly every Canadian province has emergency legislation containing a “basket clause” – a provision which, for the duration of an emergency, authorizes a decision maker to take ‘all necessary measures’ to defeat it. Public health legal preparedness scholarship has not yet examined what criteria the decision maker must consider before deciding to deploy measures that could seriously impact the rights of individuals, including those under the Canadian Charter of Rights and Freedoms. This thesis proposes that decision makers ought to have legislative guidance on how to use these special powers. The incorporation of public health, ethics, and legal principles into reformed legislation could provide for increased accountability, transparency, efficiency and effectiveness, while allowing for more focused judicial review.