Dr. Russell's pandemic-fighting powers vanish at midnight Friday

·6 min read
Dr. Jennifer Russell, chief medical officer of health, says she's 'comfortable with the status quo at the moment.' (Government of New Brunswick - image credit)
Dr. Jennifer Russell, chief medical officer of health, says she's 'comfortable with the status quo at the moment.' (Government of New Brunswick - image credit)

At the very moment New Brunswickers win back their freedom Friday at midnight, Dr. Jennifer Russell will lose many of the powers she has to fight COVID-19.

And she says she's just fine with that.

When the province's emergency order expires Friday, the chief medical officer of health will no longer have the legal authority to order mask-wearing, social distancing and list-making for contact tracing — even if cases spike again.

It pitches the province into uncharted territory: a new phase of the pandemic in which travel restrictions no longer exist, cases are expected to tick upward, and the means to trace them is limited.

"I am comfortable with the status quo at the moment," Russell said in an interview.

Russell said the main tool to prevent major case spikes is already available and will continue to be: vaccines.

With the pace of shots slowing down just as those emergency powers are due to expire, Green Party Leader David Coon is repeating his call for the Higgs government to beef up the legislation Russell will now have to rely on: the Public Health Act.

It gives her power to do some of the things she's been doing under the emergency order. She can order an infected individual to self-isolate or tell a business to close.

But she will no longer be able to issue general self-isolation edicts to large parts of the population, or require masking and social distancing in a community hit with an outbreak.

Government of New Brunswick
Government of New Brunswick

"It's not sufficient to cover the suite of measures she might need to reinstate if we get into a situation this fall, as we move indoors with the restrictions lifted and we see increasing cases," Coon said.

The pace of vaccinations is slowing in New Brunswick, with only 66.1 per cent of eligible people aged 12 and up fully vaccinated as of Thursday. That's fewer than 60 per cent of New Brunswickers as a whole.

In some other jurisdictions, the more contagious delta variant is leading to spikes in case numbers among the unvaccinated.

That has prompted some governments to bring back some COVID rules such as masking, including for vaccinated people who appear to be able to carry and even transmit the virus even if they don't get sick themselves.

Russell acknowledges that higher case rates are inevitable in New Brunswick.

"There's no question the number of cases is going to go up," she said. "I can tell you that right now."

But she insists she won't need a beefed-up Public Health Act to respond when that happens.

"I don't feel strongly at this moment in time that I need to go down that path immediately, when the tools to prevent all of those things from becoming problematic are available right now, and that is vaccines and their accessibility."

The Higgs government declared a state of emergency on March 19, 2020, invoking the Emergency Measures Act and issuing an order granting itself extraordinary powers not normally available.

It was the first province-wide state of emergency in New Brunswick history and was the only way the government could legally restrict travel into the province, a measure that everyone agrees played a key role in keeping case rates low here.

By law, the order had to be renewed by the provincial cabinet every two weeks. The legislature had no role in approving or renewing it, though Premier Blaine Higgs gave opposition party leaders an oversight role on a special all-party COVID committee.

On Friday, the order won't be renewed, and its powers will vanish.

Fredericton restaurant owner Mike Babineau said while his employees and customers who choose to keep wearing masks are free to do so, the contract-tracing lists will be a thing of the past after Friday night.

Gary Moore/CBC
Gary Moore/CBC

"The names of customers was required under the Emergency Measures Act, and now that that's not going to be required, no," he said. "We won't be asking for that information effective Saturday morning."

Those lists have been key to notifying people that they were near a confirmed case of COVID-19. They allowed Russell's team to tell them to get tested.

Halifax epidemiologist Kevin Wilson said contract tracing would be a helpful way to respond to future outbreaks.

"You're going to have more people doing more things with larger groups," he said. "It does become more complicated."

In May, Public Safety Minister Ted Flemming said it was "a difficult question" whether future COVID-19 outbreaks would require a new state of emergency or whether the weaker measures in the Public Health Act would suffice.

The Higgs government clearly wants to avoid future emergency orders. Flemming said in May that restricting civil liberties should always be a last resort.

"If we have herd immunity because of vaccinations, and if we have 75 per cent-plus of our population vaccinated twice, then I personally don't believe an emergency order would be necessary," he said at the time.

"Public Health should be able to deal with that, because it's not a provincial-wide emergency, because 75, 85 per cent of the people would have been vaccinated."

That target still hasn't been reached, but Russell echoed Flemming's comments Wednesday.

"I don't think anyone wants to go back to mandatory orders, and masks, and population-level restrictions when the vaccine program will allow us to [avoid] that if we get vaccinated," Russell said.

Travis Kingdon/CBC
Travis Kingdon/CBC

"So people have a decision to make now about how to help their communities."

She said before recommending the lifting of the emergency order to cabinet, she consulted the policy team at the Health Department to confirm "that we could do what we needed to do in the event of outbreaks.

"We're comfortable with what we need to do."

She was reluctant, however, to discuss hypothetical situations such as an infected but asymptomatic tourist unknowingly carrying the virus into a crowded restaurant and it eventually spreading it to unvaccinated, vulnerable New Brunswickers.

"I don't even want to have the conversation about 'what if, what if,'" she said. "I want people to get vaccinated."

Coon said the happy medium between the emergency order's extraordinary powers and the relatively weak Public Health Act would be a few modifications to the latter statute.

"Public Health and the chief medical officer of health need more authority than she's got under the Public Health Act to avoid bringing back the Emergency Measures Act, and that should be straightforward," he said.

"A bill could come to the legislature in September if the premier would call it back so that she was properly armed to deal with whatever might emerge once the restrictions are lifted."

Coon said his endorsement of lifting all restrictions on Friday was based on "a quick, speedy vaccine rollout."

"It's discouraging and worrisome that it has slowed down over the last number of weeks," he said. "So that makes a difference."

Russell said she expects news soon from Health Canada on vaccinating children under the age of 12, on third doses for immune-compromised New Brunswickers, and on booster shots.

"The way to act on that concern is to get vaccinated," she said.

"If we start to see problems with hospitalizations in terms of COVID cases, then we'll have to address it at that time."

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