THUNDER BAY - Civil rights organizations are calling on the Thunder Bay District Health Unit to rescind an emergency order under the Health Protection and Promotions Act aimed at high-risk COVID-19 individuals released from custody in the city, calling it unconstitutional and disproportionally affecting marginalized individuals.
The Canadian Civil Liberties Association, HIV and AIDS Legal Clinic Ontario, and Aboriginal Legal Services have sent a letter to the medical officer of health, Dr. Janet DeMille, arguing she has overstepped her legal authority by issuing the order.
“The order is shocking," said Abby Deshman, Director of the CCLA's Criminal Justice Program in a statement. "We have not seen anything comparable anywhere else in Canada. Dr. DeMille has overreached, and by not making this particular order accessible to the public, she is dictating in secret."
The Section 22 order under the Health Protection and Promotions Act was first issued on Feb. 8 in response to growing outbreaks of COVID-19 at the Thunder Bay District Jail and the Thunder Bay Correctional Centre.
The order requires anyone who has tested positive for COVID-19 or is considered a high-risk contact after being released from custody to self-isolate in a reasonable location or an isolation centre and be subject to follow-up by a public health nurse and additional testing.
“The Section 22 order does allow me to be very clear with individuals, whether it’s an individual or groups of individuals of what’s expected of them,” DeMille said in an interview shortly after the order was issued. “We had a very specific process to ensure that public health can follow up with them.”
The city of Thunder Bay declared a second state of emergency due to the growing outbreaks in the correctional facilities.
The Thunder Bay District Health Unit issued a second Section 22 order on March 2, but the civil rights organizations say the one issued in February differs because it allows the Thunder Bay District Health Unit to “detain individuals being released from Thunder Bay District Jail indefinitely.”
"There is no doubt in my mind that this Order violates Charter rights and oversteps the emergency powers conferred upon Medical Officers of Health," Deshman said.
“This order will disproportionately impact Indigenous people,” said Caitlyn Kasper, senior staff lawyer at ALS. “They are being singled out for more restrictive public health measures – including forced testing and illegal detention. The rules for the rest of Thunder Bay residents are not nearly this excessive.”
“The bottom line is that the Thunder Bay District Jail has failed to keep people safe during the pandemic. The Medical Officer of Health cannot fix that through an unjustifiable emergency order that discriminates against Indigenous people.”
Khalid Janmohamed, Director of Litigation Services for HALCO also said the order issued in February was not clearly communicated or posted publically.
“Our clients know first-hand how coercive these public health orders can be,” Janmouhamed said. “Medical Officers of Health are granted extraordinary authority to protect public health – but they are still subject to the law. Detaining people without legal authority is a fundamental violation of constitutional rights.”
DeMille said after issuing the Feb. 8 order that it was only done so after supports were in place to allow for individuals to fulfill the requirements of the order.
An individual found guilty of an offence under the Health Protection and Promotion Act can be subject to a fine of no more than $5,000 for every day or part of the day the offence occurs.
