Like many other countries, different levels of government in Canada have adopted a wide range of measures in response to COVID-19. Many of the measures vary from province to province and municipality to municipality.
Canada is a federation composed of a federal government, three territorial governments (which operate with delegated federal authority), ten provincial governments, and thousands of municipal governments (which exercise powers delegated by the provinces).
Each level of government has distinct responsibilities under the Constitution Act, and each has used a variety of legal instruments including laws, regulations, executive orders, directives and by-laws, during the COVID-19 pandemic to protect public health. This brief overview offers a few examples of the legal instruments that have impacted individual civil liberties.
The federal government has issued a number of orders and regulations pursuant to existing federal laws. For example, it issued an order requiring any person entering Canada to quarantine for 14 days, pursuant to the Quarantine Act. The penalties under the Act can include fines of up to $1,000,000, and a maximum term of three years of imprisonment on indictment.
Despite considerable speculation, the federal government has not declared a “public welfare emergency” under the Emergencies Act, which gives the federal Cabinet sweeping powers to make orders and regulations which it “believes, on reasonable grounds, are necessary for dealing with the emergency.”
All provinces have declared states of emergency pursuant to provincial law. Provincial and territorial governments have primarily issued orders and regulations using existing emergency legislation. For example, since declaring a public emergency, the Ontario government has enacted several orders under its emergency legislation, including a prohibition on events and gatherings of more than five people; the closure of non-essential businesses, public facilities and services; bans on price gouging; and, emergency management of long-term care facilities. The penalties under Ontario’s emergency legislation can be severe. There have been reports of provincial fines of $880 for failing to close a non-essential business.
Certain provinces have restricted movement across provincial borders and within the province itself. For example, the Quebec government restricted movement across its borders with Ontario, New Brunswick, Newfoundland, and Labrador. Travel within the province has also been restricted.
Municipalities have also declared states of emergency. This has enabled them to adopt a range of emergency orders, bylaws, and directives to protect the health, safety, and welfare of residents. For example, the City of Toronto has issued bylaws and directives requiring physical distancing in city parks and public squares. A breach of this order can be subject to a $1000 ticket. Municipal by-law officers across Ontario have issued fines of over $700 for shooting hoops in an outdoor basketball court, and $880 for rollerblading in an empty parking lot.
Some of the measures adopted in response to the COVID-19 pandemic may restrict civil liberties.
In Canada, civil liberties are protected by the Canadian Charter of Rights and Freedoms. These rights are not unlimited. Rather, they are “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In other words, they must be supported by evidence and be proportionate.
Various civil rights groups have announced that they will be launching constitutional challenges against certain COVID-19 measures, such as Newfoundland’s ban on non-essential travel into the province, which prevented a woman from attending her mother’s funeral; and Alberta’s order providing police access to confidential medical information. Indeed, there are many ways in which Charter rights might be engaged by the provinces’ interventions:
- Quarantine measures requiring self-isolation engage the right to liberty of the person (section 7) and the right against arbitrary detention (section 10).
- Restrictions on mobility for individuals entering Canada and travelling across provinces engage an individual’s right “to enter, remain in and leave Canada” (section 6).
- Limits on congregating for the purpose of religious worship engage the right to freedom of religion (section 2(a)).
- The potential use of mobile phone data for enforcing contact tracing and quarantine orders engages individual privacy rights (section 7).
In each instance, the government would have to establish there is evidence to support the necessity of these measures, for example that they slow the spread of the virus, and demonstrate that the measures chosen are proportionate. It is important to note, however, that the federal and provincial governments have the option of overriding most Charter rights (except section 6) under section 33 of the Charter.
To date, public opinion polls demonstrate strong public support for the federal, provincial, and municipal governments’ actions.
However, the support has not been unanimous. For example, some citizens have participated in anti-lockdown protests. In addition, the Canadian Civil Liberties Association and other non-governmental organizations have been closely monitoring all levels of government, and have raised concerns about the impact of certain measures on individual civil liberties, including the limited availability of bail hearings, travel bans that leave open the possibility of removing non-residents from provinces entirely, and police access to the COVID-19 testing database.
Vanessa Gruben is the Vice Dean of the English Common Law Section, an Associate Professor and member of the Centre for Health Law, Policy and Ethics at the University of Ottawa.