Dec 28th, 2020
Essay Contest 2020
3rd Place Winner
Due to the COVID-19 pandemic, provincial and territorial governments across Canada have instituted lockdown measures to minimize the spread of COVID-19. Although these lockdown measures have had a significant role in slowing the spread of COVID-19 in Canada, they have, at times, infringed upon the rights and freedoms afforded to Canadians by the Canadian Charter of Rights and Freedoms. Do these lockdown measures take priority over the Charter? Which government-mandated lockdown measures are justifiable, and which are not?
There are two key reasons as to why government-mandated lockdown measures, including those that infringe upon the rights and freedoms afforded to Canadians by the Charter, are justifiable. First, the COVID-19 pandemic is currently not under control. This pandemic is unpredictable, deadly, and could overwhelm the healthcare system and other government support systems (e.g. the Canada Recovery Sickness Benefit, which helps to support individuals who cannot work because they must either self-isolate due to COVID-19 or they are at a higher risk of getting COVID-19, could run out of funding if there are too many people who cannot work due to COVID-19). These lockdown measures help to ensure that resources do not become overwhelmed and to ensure that those resources can be used by Canadians should they need to use them.
Second, if governments did not institute measures to slow the spread of COVID-19, then governments would be complicit in infringing upon the “right to life, liberty and security of the person” (Canadian Charter, 1982, s (7)). Not taking measures to slow down the spread of a pandemic that has already infected over 240,000 people in Canada alone (Center for Systems Science and Engineering at Johns Hopkins University, 2020) would almost guarantee that COVID- 19 would infect millions of Canadians, and that it would leave hundreds of thousands of deaths in its wake. To put it simply, to protect the right to life, liberty and security of the person, governments must do what it takes to protect its citizens from COVID-19 – regardless of whether Charter rights are infringed. The Charter rights of all Canadians (i.e. the right to life, liberty and security of the person, which would be infringed should governments not take measures to protect against COVID-19) take precedence over the Charter rights of any individual or group of individuals. Public health must be maintained. Choosing to prioritize individual Charter rights puts the public at risk.
Take voting rights as an example. According to the Charter, “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership within” (Canadian Charter, 1982, s (3)). Interestingly, language on the Guide to the Canadian Charter of Rights and Freedoms web page, which is run by the Government of Canada, states that “some limits on these rights may be reasonable, even in a democracy” (Government of Canada, 2020).
In any provincial, territorial, or federal election, accommodations must be made for voters who cannot vote without some kind of accommodation, such as voters who are visually impaired. These accommodations are made to ensure that the highest possible number of eligible voters can exercise their right to vote. Curbside voting, for example, is intended for voters who cannot physically enter a polling place. In Saskatchewan provincial elections, a deputy returning officer must confirm that the voter is physically unable to enter the polling place. If this limitation is confirmed, “the deputy returning officer may take the poll book, the voters’ list, a declaration in the prescribed form, a ballot paper, a pencil and note-paper outside the polling place, leaving the unused ballot papers and the ballot box inside the polling place in the custody of the poll clerk” (The Election Act, 1996, 1996, s (81)(3)).
During the Saskatchewan provincial election held in late October of 2020, there was direction from the Chief Electoral Officer and the Chief Medical Health Officer that curbside voting was not to be used for those with presumptive or confirmed COVID-19 cases. Should someone with a presumptive or confirmed COVID-19 case attempt to use curbside voting, the deputy returning officer was to tell them that they could not take their vote for safety reasons and that the voter should call Elections Saskatchewan. This restriction was instituted not just to protect the deputy returning officer, but also to protect voters and other election officials.
Voting in person is by its nature a very public activity. A voter interacts with at least three election officials (an information officer, a deputy returning officer, and a poll clerk) and may be in close proximity with other voters (such as waiting in line to vote). These election officials interact with voters and other election officials throughout the day. If anyone in a polling place had COVID-19, the polling place has the potential to become the site of an outbreak, with hundreds of people becoming infected with COVID-19 due to infected people spreading COVID-19 to their healthy contacts. Voters should not have to go to the polls fearing that they may become infected with COVID-19 as a consequence of exercising their right to vote. They should expect that their right to life, liberty, and security of the person will be maintained, especially when participating in an institution that is so fundamental to Canadian democracy. Surely, then, it is justifiable to turn away a voter who is a presumptive or confirmed COVID-19 case? They still have an avenue available to them to vote should they call Elections Saskatchewan. But one individual’s right to vote should not trump many individuals’ right to life, liberty, and security of the person. Public health interests, which concerns the whole of the Canadian population, take precedence over any one individual’s right to vote.
Of course, COVID-19 should not be a rubber stamp excuse to use to trample Charter rights. Governments should do what they can to accommodate Charter rights as much as reasonably practicable while still doing what they can to protect Canadians against the scourge of COVID-19.
Allowing rights to be infringed left and right on the basis of a pandemic without consequence establishes a precedent for dangerous abuses of governmental power. Any time there was a major event that significantly changed Canadians’ everyday lives, such as a pandemic or other emergency, there would be precedent to say, essentially, that “Charter rights only matter when there is no major disruption in society”. But if no compromise can be made between government- mandated lockdown measures and the accommodation of Charter rights, government-mandated lockdown measures should take precedence. Charter rights focus on the rights of individuals, while government-mandated lockdown measures are in place to protect the population as a whole – not just certain individuals.
Consider another Saskatchewan-based example. In April 2020, “the Justice Centre issued a warning to the Saskatchewan Health Authority (SHA) for violating the Charter freedoms of members of the Nipawin Apostolic Church” (Justice Centre, 2020). A drive-in Easter Sunday service had been planned, with social distancing and other health protocols bring observed. People would stay in their vehicles with the windows rolled up while still being able to exercise their freedoms of religion and expression – which is afforded to them by the Charter (Canadian Charter, 1982, s (2)(a),(b)) – by listening to the service through the radio. However, the SHA determined that this service was a mass gathering, which violated Saskatchewan’s public health rules. The church was faced with the difficult choice of cancelling the service (and preventing members of the congregation from exercising their freedom of religion) or allowing the service to proceed (in which case, members of the congregation would receive hefty fines from the SHA).
The SHA made its determination on the basis that people would leave their vehicles and would intermingle, potentially creating an excellent environment for COVID-19 transmission. But this basis is not necessarily true. The Justice Centre (2020) states that “many such [similar] services have occurred without incident across Canada with reported success”.
Additionally, the Canadian justice system operates on the basis of “innocent until proven guilty”. Canadians can be arrested for a crime, or they can be arrested on the suspicion that they have committed a crime. But they cannot be arrested if there is suspicion that they will commit a crime in the future. So, if Canadians cannot legally be arrested on the presumption that they will commit a crime, how can the SHA predict that members of the congregation would violate public health rules? If there was a precedent of violating public health rules at similar services, or if public health rules could not be enforced at the service (such as by failing to issue fines to those who left their vehicle with the knowledge that doing so would violate public health rules), the SHA would certainly be justified in cancelling the service before it happened. But neither of these criteria were met. The SHA overstepped its boundaries by assuming that public health rules would be broken despite there being no evidence or precedent for that happening. Upon receipt of a warning letter from the Justice Centre, the Saskatchewan government updated the public health rules to permit drive-in services if they followed public health rules. A similar restriction on drive-in services happened in Aylmer, Ontario, with the letter expressing concern about the restriction that was sent to the police chief citing the reversal in the SHA’s decision and a Charter challenge was filed to allow members of the congregation to once again exercise their freedom of religion.
There must be exemptions to public health rules and government-mandated lockdown measures on compassionate grounds, provided that these exemptions meet the standards of the rules and mandates as much as reasonably practicable. Compassionate grounds are broadly defined and can include (but are not limited to) the visiting and care of an elderly relative, as failure to do so can result in the relative feeling isolated and alone; providing extra support to victims of domestic abuse, as self-isolation requirements would force victims to be in close proximity with their abusers for extended periods of time; and allowing for families and friends to lay their loved ones to rest and to come together to pay their respects. Failing to grant exemptions to public health rules and government-mandated lockdown restrictions is cruel and can result in irreparable harm. The Charter states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment” (Canadian Charter, 1982, s (12)). Governments must take extra care to attempt to accommodate exemptions on compassionate grounds, especially in cases where someone is in danger of imminent harm (such as a domestic abuse situation). If the exemptions cannot meet the standards of public health rules and lockdown measures as much as reasonably practicable, however, even if these exemptions are on compassionate grounds, these exemptions must not be made as they can put public health at risk.
Economic-related shutdowns are also justifiable, but there must be government support to ensure that people can still survive and be able to pay for life’s necessities. COVID-19 has affected everyone, and no one should expect to live as comfortably as they did before the pandemic should they lose their livelihood because of the economic effects of COVID-19. Governments can justify shutting down businesses on the basis that they violate public health rules, for example, even if doing so would mean people losing their livelihoods. Of course, closing a business should only be done as a last resort. Doing so would put many people out of work and would have additional consequences, such as the inability for a parent to properly feed and clothe their children. The government must have a plan to seamlessly and rapidly provide people with some sort of income should they require income support to survive. The Canadian Emergency Response Benefit (CERB) and other COVID-19 benefits are good examples of income support, but their main flaw is that it can take a significant amount of time for individuals to receive that support. In the meantime, they can fall through the cracks and not have enough income to support them. For example, a parent might not have enough money until the next pay period to adequately feed their child. This situation would force the parent to find support elsewhere, such as at a food back, which would put a further strain on a support system that is already mostly stretched to its limit. More needs to be done to ensure the time gap between employment income and COVID-19 benefits is as small as possible.
To summarize, any government-mandated lockdown measure is justified if it is compatible with the rights and freedoms afforded by the Charter. Accommodations should be made as much as possible to ensure that Charter rights and freedoms and lockdown measures can coexist. Should it be impossible or unsafe to do so, however, governments are justified in allowing public health to take precedence over the Charter. The Charter concerns the rights and freedoms of individuals, but these rights and freedoms cannot take priority over the rights and freedoms of an entire population. For example, not having public health rules such as social distancing requirements would get Canadians sick, which would violate their right to life, liberty, and the security of the person. The Charter even states that “the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Canadian Charter, 1982, s (1)) – meaning that the rights and freedoms established in the Charter are not guaranteed as they can be limited if there is substantial and significant justification for doing so. Bildy (2020) agrees: “Government authorities … may only infringe Canadians’ constitutional rights if such authorities can demonstrate a pressing and substantial justification for doing so”. That being said, when Charter rights are overridden, it should not be taken lightly. Charter rights should only be overridden as a last resort, and only on the justification that they are being overridden for some greater good (such as the public health of the Canadian population). COVID-19, or indeed any other pandemic or emergency, cannot be allowed to be a blanket excuse for disregarding Charter rights.
Bildy, L. D. S. (2020, April 24). Re: Restrictions on Drive-In Religious Services Violate the Charter. Justice Centre for Constitutional Freedoms. https://www.jccf.ca/wp- content/uploads/2020/04/2020-04-23-Letter-to-Aylmer-Police-Chief.pdf
Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11.
Center for System Science and Engineering at Johns Hopkins University (2020). COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU). Johns Hopkins University & Medicine Coronavirus Resource Center. https://coronavirus.jhu.edu/map.html
Government of Canada (2020, June 8). Guide to the Canadian Charter of Rights and Freedoms.
Canada.ca. https://www.canada.ca/en/canadian-heritage/services/how-rights- protected/guide-canadian-charter-rights-freedoms.html#shr-pg0
Justice Centre (2020). Nipawin Apostolic Church v. Saskatchewan Health Authority. Justice Centre for Constitutional Freedoms. https://www.jccf.ca/court_cases/nipawin-apostolic- church-v-saskatchewan-health-authority/
The Election Act, 1996, SS 1996, c. E-6.01.
The opinions expressed by the essay winners are solely those of the authors and do not necessarily those of the Justice Centre for Constitutional Freedoms.