There has been a lot of buzz about the constitutionality of government responses to COVID, but where do things really stand? Are lockdowns, mandatory masks, travel restrictions and the accompanying penalties really a violation of the Canadian Charter of Rights and Freedoms?
The Charter provides an explicit guarantee of political and civil rights. It includes protections for freedom of conscience, speech, expression, assembly and association. It protects the right of citizens to enter, remain in and leave Canada, and travel between provinces, the right to life, liberty and security, freedom from unreasonable search, and it protects our right to equal protection and benefit of the law without discrimination.
It’s easy to see how many of these rights are engaged by a lot of government action in response to the COVID crisis.
For example, gathering restrictions implicate our right to freedom of assembly. Mandatory mask orders touch on our liberty rights, and travel restrictions impair our mobility rights. When police do unauthorized digging in our health records it violates our privacy rights. Freedom of religion is infringed by the limits on churches, temples, and mosques.
Business closures are a bit more complicated. The right to carry on a business and engage in economic activity is not enshrined in our Charter. It is a long established common law right, but it is subject to extensive regulation. The right to life liberty and security applies to individuals, not to businesses.
There is an argument that business closures violate freedom of association or assembly. This right is more for the patron than the business itself, as these rights are not traditionally interpreted by courts to protect typical commercial interests. There may be room for a novel argument, especially for businesses with a strong community or associative element. Depending on the nature of the business, it may also be possible to argue that the government is limiting freedom of expression. For example, in the case of cultural businesses like theatres.
While many rights are violated by these government acts in response to COVID, the Charter has something called the limitation clause in section 1. This allows governments to justify infringements of certain rights. The courts have developed a test to determine whether a limit on our rights is justified. The law must serve a pressing and substantial objective, it must be rationally connected to that objective, the law must minimally impair the right, and there must be proportionality between the limit on our right and the benefit gained.
Controlling the spread of COVID is an important objective, and it is an objective that itself engages our Charter rights, including the right to life and security. When balancing competing fundamental rights, courts will show considerable deference to government attempts to craft proportionate responses, and minimal impairment does not require perfection.
However even with wide leeway from the courts, some government action may be taking things too far. It may not be minimally impairing to have multiple restrictions heaped on top of one another. Why close stores when requiring masks, sanitation, and limiting entry would achieve the same goal? Why limit travel between provinces when quarantine is required?
Moreover, limits to our rights cannot be arbitrary, unfair or based on irrational considerations. And many government actions are now treading into irrational and arbitrary territory. Why close theatres when everyone faces the same direction in a large room, doesn’t talk, is masked, and in the absence of evidence of spread in theatres? Such a measure seems more about political optics than science and public health.
This column was originally published in the Toronto Sun.