It is causing enough havoc let it not infect the rule of law. Let's not give the COVID-19 virus that power. That, in our opinion, would be an unnecessary overreaction and a dangerous one. That would mean that there are no restrictions on those governments that decide to enact laws that abolish our legal rights and fundamental freedoms. But what we hope is not in the cards is a government invoking the "Notwithstanding clause" in section 33 of the Charter. What the Charter mandates is proportionality and balance. Particular care needs to be taken not to worsen the already precarious situation of our homeless, prisoners, those seeking refugee status, sex workers, drug addicts and other vulnerable and marginalized communities. Both sides could potentially rely on the Charter to bolster their position.īut the reality is that the Charter will not hamstring unprecedented government measures that are designed to tackle an unprecedented crisis, as long as such measures can be justified. Undoubtedly the state will be accused by some of doing too much, and by others of doing too little. Rights and liberties must sometimes make way in the pursuit of other legitimate societal objectives, like public health.Īnd such rights and liberties can themselves sometimes be in conflict (for example, one's right to liberty and association versus another's right to life and security of the person in the current pandemic).ĭuration 1:51 Ontario Premier Doug Ford ordered all non-essential stores and services to close at the end of Tuesday, to slow the spread of COVID-19. These various measures would strike most people as proportionate to achieve the pressing and compelling state objectives of protecting our citizens from a deadly virus.
All can be infringed by laws that "are demonstrably justified in a free and democratic society." We have no doubt that the measures taken so far by governments – from orders in some provinces to close all non-essential businesses, to the bylaw amendments in some cities to increase fines to up to $50,000 for breaches of emergency orders – are compliant with the Charter, because none of our rights and freedoms are absolute.
Public health can override privacy, but it's not happening yet: Privacy commissioner.Trudeau leaves door open to using smartphone data to track Canadians' compliance with pandemic rules.Similar measures to counter COVID-19's transmission are now in place or expected at all levels of government in Canada: federal, provincial, territorial, and municipal. And yet here was a provincial premier claiming that these new laws - laws that would do just that - are in effect civil libertarian measures. We usually see our civil liberties as being 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 associate with our friends, families and colleagues. That statement might have struck some as counter-intuitive or something of an oxymoron. He said, "a failure to follow public guidelines to limit the spread of COVID-19 puts our civil liberties at risk." Yet the premier of Nova Scotia announced strict legal measures Sunday to enforce isolation and social distancing, measures that include fines and even potential imprisonment. Only an authoritarian government could implement such liberty-infringing measures, right? When the lock-downs started occurring in Wuhan and other cities in Hubei, China, quarantining more than 50 million people, many observers in Western countries thought it impossible for such Draconian measures to be implemented in the democratic West. This column is an opinion by Joseph Arvay QC and David Wu, lawyers at Arvay Finlay LLP in Vancouver and Victoria, B.C. For more information about CBC's Opinion section, please see the FAQ.