N.W.T.'s top doctor must walk 'fine line' during lengthy state of emergency: experts

A state of emergency isn't supposed to be indefinite.

But in remarks following her latest order banning private gatherings and severely limiting public ones, the N.W.T.'s chief public health officer Dr. Kami Kandola seemed to suggest the territory's state of emergency could stretch on for a while.

Maintaining that state of emergency, extended for the second time on Wednesday, won't be easy. As weeks stretch into months, Kandola will be under ever-greater pressure to justify the sweeping powers it grants her, experts say, especially if no large-scale outbreak occurs.

To date, just five cases have been confirmed in the territory, all related to travel. Despite that low count, the territory's residents now live under some of the most restrictive public health orders in the country.

"I still have time on my hands, I'm still in containment mode," Kandola said about the order on Tuesday. 

Even though it is technically the minister of Municipal and Community Affairs who extends the state of emergency, Kandola is the one who must defend that decision. It's her recommendation — and her expertise — that forms the basis for those extensions.

The longer this goes on ... the tougher it's going to be.- Paul Gully, former public health official

So far, local leaders and territorial politicians have been vocal in their support. But Paul Gully, a retired public health expert who has held high-ranking positions with Health Canada and the Public Health Agency of Canada, cautions that tougher times lie ahead.

"The longer this goes on ...  the tougher it's going to be," Gully said, "and the more the public health officials are going to have to work with the politicians … [and] community leaders, to … convince them that, yes, there is a good reason for this."

How we got here

It was less than a month ago that the territory reported its first case of COVID-19.

By then, Kandola had already made several public appearances reassuring residents the risk of COVID-19 remained low.

That changed suddenly on March 20, when Kandola announced the border would be closing to non-essential traffic with less than 24 hours notice.

Just hours later, the territory identified its first case.

Kandola's order banning non-essential travel to the territory, and requiring mandatory self-isolation for returnees, was the first of its kind in the country.

Then, on March 24, the territory declared a state of emergency. It wasn't made public until three days later.

Life in a state of emergency

When the state of emergency was made public on March 27, Premier Caroline Cochrane called the move "proactive," and emphasized that residents faced no greater risk from COVID-19.

That is unusual, say experts. States of emergency are generally intended to give governments extraordinary powers "to respond more quickly in a time of crisis," according Leah West, a lecturer at Carleton University's Paterson School of International Affairs and an expert in states of emergency.

That's one reason states of emergency must be renewed every 14 days — they are not designed to last indefinitely. 

A month from now, when that comes up for renewal, [elected officials] should be asking the tough question.- Leah West, States of emergency expert

That renewal is also an important accountability measure, West said. A cabinet minister must sign off on an extension, and that minister can be made accountable to voters in an election.

It's supposed to give the public a means of voicing disagreement if states of emergency are extended too long.

But that is complicated by the territory's consensus system, which has no formal opposition. The nature of a public health emergency complicates that accountability further.

"Elected officials are still responsible" on paper, West said, "but it's the recommendation of the public health officer that's really moving the ball forward on some of these measures."

Challenges to authority

Almost immediately following the declaration of a state of emergency, chief public health officer Kandola faced two high profile cases of individuals disregarding her orders.

First, in late March, a travelling reality TV star named "Pike" Mike Harrison illegally crossed the N.W.T. border and chronicled his journey in local media.

Then, a few days later, an individual ignored orders to self-isolate in a regional centre, and carried COVID-19 into a small community, later identified as Fort Resolution.

Kandola's response to these challenges has not been consistent. She publicly targeted Harrison in a media release on March 28 for risking the spread of COVID-19, but has staunchly defended the privacy of the COVID-19 carrier in Fort Resolution.

The fallout from the latter raised questions about Kandola's relationships with local leadership, who decried a lack of communication and demanded stricter enforcement.

Still, to date, no fines have been laid against those in breach of public health orders, despite hundreds of investigations.

Gully, a former public health officer, said issues over enforcement is one reason public health orders are so rare.

It's not easy if people want to fight it.- Paul Gully, Former public health official

"It is not easy if people want to fight it," he said. "If you have orders, you want to be … pretty sure that, one, you have the ability to enforce, if necessary, but secondly, in general, you've got the broad support of a community."

Yet in media appearances since, Kandola seemed unmoved by community concerns.

She diverged with officials in Nunavut and Nunavik in staunchly defending a policy of not informing local leadership when cases of COVID-19 are identified, despite vocal opposition from mayors, chiefs, and MLAs.

And citing public health concerns, the territory disregarded requests from Indigenous leadership to restrict the sale of alcohol to discourage gatherings, backtracking a week later to institute partial restrictions.

Finding the exit strategy

This growing debate set the stage for Kandola's announcement on April 10 of her most restrictive order yet.

The latest order criminalizes all indoor gatherings of people from different households, and restricts gatherings outdoors to fewer than 10 people.

West, a state of emergency expert, said it's likely these broad orders will make enforcement easier.

"Stricter measures take away any uncertainty," she said. "If you just say, 'you cannot have anyone in your home, period,' there's little room for doubt."

But equally, she said it's important they remain "proportionate to the risk."

"Just because it's easier to enforce, [that] may not be a sufficient reason to increase those kinds of restrictions," she said.

Kandola has taken opportunities to justify this order to emphasize that it is not likely to be lifted anytime soon. As yet, she's faced few questions about their public health necessity.

"We're not there yet. These measures still clearly have a purpose," said West. "[But] a month from now, when that comes up for renewal, [elected officials] should be asking the tough question."

Equally important is an "exit strategy" for relaxing tough restrictions, said former public health official Gully.

"Hopefully, your [chief public health officer] has in mind some length of time ... about how long this is going to go on for," he said.

As the state of emergency stretches on, Gully said Kandola's daily decisions will need to navigate an increasingly "fine line" between retaining public support and ensuring public safety.

"The public health officer, every day, is going to look at this and say, 'How far can I go? How far can I push this?'" he said.

"How long are people going to be comfortable with my public health advice?"