By Tala Al Rabea
Nearly two months ago, I made my way to Bay Street for the very first time. I went all the way to the sixth floor to the HIV Legal Network. This quaint office lodges a powerhouse; a leading organization that ardently fights for the rights of those living with HIV and communities ‘othered’ by society.1 Surrounded and mentored by exceptionally brilliant legal experts in an array of fields– from immigration, drug policy, criminal law and human rights on a national and international scale–it is easy to say I have had no dull moments.2 One current project related to public health detention under provincial and territorial public health acts, particularly sparked my interest.
In this article, I will focus on the province of Manitoba and the case of Geraldine Mason, which garnered national attention. This case also caught the interest of human rights lawyer André Capretti, who initiated the current project at the HIV Legal Network. Mason’s case reflects a long-lasting history of racism, colonialism and inequality within Canada, especially towards Indigenous communities.3 Mason, from God’s Lake First Nation, was 36 years old when she was apprehended for forced tuberculosis treatment under Manitoba’s Public Health Act.4 Detained in jail for a month, she was confined to her cell for 20 hours each day and subjected to four strip searches.5 Despite having neither a criminal record nor any charges against her, she was surrounded by others who have been charged with violent offences.6 She also endured the experience on her own: she did not have legal counsel when she was detained and no public hearing was held, until Leif Jensen, a legal aid lawyer took on her case.7 Such an experience is bound to negatively impact one’s mental and physical well being by provoking feelings of anxiety around the uncertainty of one’s rights, fear and solitude.
How could this have happened? Under Manitoba’s Public Health Act (“the Act”), if a person does not follow an order issued by a medical officer of health, they may, if they reasonably believe that the person is a threat to public health and on the approval of the court, apprehend the person.8 This person, according to the Act, can “be detained in a place specified in the order”.9
Closely analyzing the provision reveals that the detainee can be assigned to any location mentioned in the order, creating an excessively broad range of potential places for detention. This can lead to situations where individuals may be unjustly detained in correctional facilities, even when they would benefit more from care in a medical facility. This was the situation Mason faced.
Although this primarily occurs in cases of tuberculosis, it could also involve other communicable diseases. The Act covers several communicable diseases, including human immunodeficiency virus, also known as HIV.10 Could this imply that individuals living with HIV might be detained under the notion that they pose a threat to public health?
More disturbingly, the Act contains a clause that shields the Minister of Health, the Chief Public Health Officer, directors, medical officers, and anyone involved in carrying out orders under the Act from liability, except in cases of bad faith.11 Proving bad faith is notoriously difficult for a plaintiff, and even more so when the claim targets a public official whose role is ostensibly to serve the population, address their concerns, and improve their well-being. This high and onerous threshold makes it difficult for individuals, especially those with limited resources, to seek justice for the distress and harm they may have experienced. Moreover, the Act, like its counterparts across Canada, includes a provision allowing for the restriction of individual rights and freedoms, provided it is shown to be reasonably necessary.12 While the requirement for the restriction to be reasonably necessary may be viewed as a safeguarding provision, it remains unclear what can be deemed reasonable. How could the detainment of Geraldine Mason in jail be viewed as reasonably necessary by a judge while a medical officer of health is shielded from liability? Were there more considerate and accommodating alternatives to a correctional facility that could have achieved the same objective, provided more security and feelings of ease for both the public and Mason, all while upholding her dignity and constitutional rights?
Fortunately, this case caught the attention of Manitoba’s Premier, Wab Kinew, who quickly tried to rectify this situation and understood that no one should ever experience what happened to Mason.13 In addition, ever since Mason’s case, the government of Manitoba has gone on to make amendments to the Act that ensure that correctional facilities are not to be used as detention centers for anyone with a communicable disease that may pose a risk to the public.14 These amendments should take effect in September.15 It is with optimism that I express hope, other provinces and territories will feel inspired by Manitoba to review their own legislation and adopt similar amendments.
- HIV Legal Network, “About Us” (last visited 17 July 2025), online <hivlegalnetwork.ca/site/our-story/?lang=en>. ↩︎
- HIV Legal Network, “Mission” (last visited 17 July 2025), online: <hivlegalnetwork.ca/site/our-story/mission-vision/?lang=en>.
↩︎ - Manitoba Indigenous Tuberculosis History Project, “A Statement on the Incarceration of Geraldine Mason” (5 December 2024), online: <indigenoustbhistory.ca/news/a-statement-on-the-incarceration-of-geraldine-mason>. ↩︎
- Kristin Annable & Caroline Barghout, “Manitoba’s top doctor signs directive banning incarceration under Public Health Act after CBC investigation”, CBC News (3 December 2024), online: <cbc.ca/news/canada/manitoba/premier-manitoba-tb-jail-1.7399085>; The Public Health Act, CCSM, c P210.
↩︎ - See Annable & Barghout, supra note 4. ↩︎
- Ibid.
↩︎ - Ibid. ↩︎
- See Public Health Act, supra note 4 at ss 47-49.
↩︎ - Ibid at s 49(2).
↩︎ - Reporting of Diseases and Conditions Regulation, Man Reg 48/22, schedule A s 1.
↩︎ - Supra note 4 at s 106.
↩︎ - Ibid at s 3.
↩︎ - See Annable & Barghout, supra note 4.
↩︎ - Steve Lambert, “Manitoba to no longer have jail as an option for people with communicable diseases”, Canadian Press (12 March 2025), online: <ctvnews.ca/winnipeg/article/manitoba-to-no-longer-have-jail-as-an-option-for-people-with-communicable-diseases/>.
↩︎ - The Public Health Act, SM 2006, c 14, as amended by SM 2025, c 29. ↩︎