As civil liberties erode, Canada must not allow the COVID-19 epidemic to infect the rule of law

As civil liberties erode, Canada must not allow the COVID-19 epidemic to infect the rule of law

This column is an opinion of Joseph Arvay QC and David Wu, lawyers at Arvay Finlay LLP in Vancouver and Victoria, B.C. For more information on CBC Opinion Section, please consult the Faq.

When the blockages began to occur in Wuhan and other cities in Hubei, China, quarantining more than 50 million people, many observers in western countries thought it was impossible for such measures draconian be implemented in the democratic West.

Only an authoritarian government could implement such measures of violation of liberty, right?

Yet the premier of nova scotia announced strict legal measures Sunday to impose isolation and social isolation, measures that include fines and even possible prison terms. According to him, “non-compliance with public directives aimed at limiting the spread of COVID-19 endangers our civil liberties”.

This statement might have seemed counterintuitive or something like an oxymoron. We generally view our civil liberties as a bulwark against state action that seeks to deprive us of our rights and freedoms, such as the right to liberty, and the freedoms to assemble in public places and to associate with our friends, families and colleagues. Yet a premier said that these new laws – laws that would do just that – are in fact civil libertarian measures.

Similar measures to counter the transmission of COVID-19 are now in place or planned at all levels of government in Canada: federal, provincial, territorial and municipal.

Provincial and local governments are cracking down on people who don’t follow social distancing or quarantine rules to try to prevent the spread of COVID-19. 1:59

This raises legitimate legal questions – how far can the state go to erode our civil liberties in the name of protecting them? And where does the Canadian Charter of Rights and Freedoms, which applies to federal, provincial and municipal laws in the era of the COVID-19 pandemic?

A local, provincial or federal declaration of emergency does not in itself suspend the application of the Charter. Our fundamental rights guaranteed by the Charter are currently in place, and all laws and government measures aimed at fighting the pandemic must still comply with the Charter.

We have no doubt that the measures taken to date by governments – since the orders of certain close all non-core businesses, to modifications of the statutes in certain cities fines of up to $ 50,000 for breach of emergency orders – comply with the Charter, because none of our rights and freedoms is absolute. Anyone can be violated by laws which “are clearly justified in a free and democratic society”.

These various measures would strike most people as proportionate to achieve the pressing and compelling goals of the state to protect our citizens from a deadly virus. Rights and freedoms must sometimes give way to the pursuit of other legitimate societal objectives, such as public health.

And these rights and freedoms can themselves sometimes conflict (for example, the right of an individual to freedom and association against the right of others to life and security of the person in the pandemic current).

Prime Minister Justin Trudeau has toughened his talk around self-isolation and social estrangement while considering implementing the Emergency Act. 1:58

How far could the government go?

There is now much talk of social unrest. Scuffles broke out in grocery stores which lacked articles, and on March 19 the London Daily Telegraph reported “Food retailers have warned that riots and civil disobedience could break out in a matter of weeks if production is unable to keep up with demand.” Meanwhile, sale of arms and ammunition in Canada are significantly up.

Desperate people sometimes take desperate action. If the COVID-19 pandemic worsens and poses an even greater threat to our society, we can expect government measures to further infringe on our civil liberties if necessary to cope with the unrest.

Is this a total lockdown for our future? Unlimited state espionage or surveillance? Suspension of habeas corpus? Martial law?

It seems safe to say that Canadians are in unknown territory, and that includes our governments.

Ontario Premier Doug Ford has ordered all non-essential stores and services closed at the end of Tuesday to slow the spread of COVID-19. 1:51

Undoubtedly, the state will be accused by some of doing too much and by others of doing too little. Both parties could potentially rely on the Charter to strengthen their position.

But the reality is that the Charter will not interfere with unprecedented government measures designed to deal with an unprecedented crisis, as long as these measures can be justified.

What the charter mandates is proportionality and balance. Special care must be taken not to worsen the already precarious situation of our homeless, prisoners, asylum seekers, sex workers, drug addicts and other vulnerable and marginalized communities.

These are undoubtedly very scary moments. But what we hope is not in the cards, it is a government invoking the “notwithstanding clause” in section 33 of the Charter. This would mean that there are no restrictions on governments that decide to pass laws that abolish our legal rights and fundamental freedoms.

In our view, this would be an unnecessary and dangerous overreaction.

Let’s not give the COVID-19 virus this power. It causes enough havoc; that it does not infect the rule of law.

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About the Author: David Smith

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