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

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.

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.

Only an authoritarian government could implement such liberty-infringing measures, right?

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. He said, “a failure to follow public guidelines to limit the spread of COVID-19 puts our civil liberties at risk.”

That statement might have struck some as counter-intuitive or something of an oxymoron. 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. And yet here was a provincial premier claiming that these new laws — laws that would do just that — are in effect civil libertarian measures.

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

Provincial and local governments are cracking down on people who are not following social distancing or quarantine rules to try to prevent further 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, stand in the era of the COVID-19 pandemic?

A declaration of a local, provincial, or federal emergency does not in and of itself suspend the operation of the Charter. Our fundamental Charter rights currently remain in place, and all laws and government actions aimed at tackling the pandemic still need to be compliant with the Charter.

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. All can be infringed by laws that “are demonstrably justified in a free and democratic society.”

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. Rights and liberties must sometimes make way in the pursuit of other legitimate societal objectives, like public health.

And 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).

Prime Minister Justin Trudeau toughened his language around self-isolation and social distancing while considering implementing the Emergencies Act.1:58

How much further might the government go?

There is now much talk of social unrest. Scuffles have broken out in grocery stores that ran short of items, and on March 19 the London Daily Telegraph reported that, “Food retailers have warned that riots and civil disobedience could break out within weeks if production is unable to keep up with demand.” Meanwhile, gun and ammunition sales in Canada are rising significantly.

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

Is a total lock-down in our future? Unrestricted state spying or surveillance? Suspension of habeas corpus? Martial law?

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

Ontario Premier Doug Ford ordered all non-essential stores and services to close at the end of Tuesday, to slow the spread of COVID-19.1:51

Undoubtedly the state will be accused by some of doing too much, and by others of doing too little. Both sides could potentially rely on the Charterto bolster their position.

But the reality is that the Charterwill not hamstring unprecedented government measures that are designed to tackle an unprecedented crisis, as long as such measures can be justified.

What the Chartermandates 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.

These are, no doubt, very fearful times. But what we hope is not in the cards is a government invoking the “Notwithstanding clause” in section 33 of the Charter. That would mean that there are no restrictions on those governments that decide to enact laws that abolish our legal rights and fundamental freedoms.

That, in our opinion, would be an unnecessary overreaction and a dangerous one.

Let’s not give the COVID-19 virus that power. It is causing enough havoc; let it not infect the rule of law.