Dec. 1, 2021

Professors co-author paper for the Review of Constitutional Studies

Professors Lorian Hardcastle and Shaun Fluker's article examines law making an public health orders in Canada.

According to Fluker and Hardcastle, The primary public health response to COVID-19 has been social and economic lockdowns, which have varied across Canada in scope, timing, and duration. These measures included social distancing, quarantine, masking, school closures, business closures, gathering restrictions, closed borders, and travel restrictions. In most provinces and territories these requirements have been enacted in public health orders issued by a chief medical officer, relying on discretionary authority delegated to them in public health legislation.

COVID-19 has exposed the inadequacies of public health legislation across Canada as a proper governance framework for delegated lawmaking. In "Executive Lawmaking and COVID-19 Public Health Orders in Canada," Fluker and Hardcastle argue that it is thus incumbent on legislatures to address three basic issues deserving of law reform attention. First, decide exactly what lawmaking powers public health officials should have and ensure that governing statutes reflect this. In particular, existing legislation is unclear as to whether chief medical officers are authorized to enact laws of general application. Second, improve the transparency in the exercise of these powers. Third, implement accountability measures to ensure there are proper checks and balances on the exercise of these significant executive powers.

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