It has become obvious that politicians and public health officials are grasping at straws, as existing measures have proved unable to stop the spike in COVID cases. And as current strategies fail, new lockdown measures are being imposed that limit our rights and bear little connection to transmission.
As the connection between transmission and limits to our freedoms becomes more tenuous, so too does the constitutionality of these measures.
For example, the constitutionality of newly imposed curfews in Quebec is ripe for challenge. Curfews do little to stop the spread of COVID-19. The virus is not more transmissible at night, and the province is already under a strict lockdown. Quebec’s public health director even admitted that there is no study that proves curfews reduce transmission. Rather, officials have relied on the argument that curfews are a “signal” to society.
“Sending a signal” is not a proper rationale for imposing a serious limit on the freedom of Quebeckers. Curfews essentially criminalize homelessness, are also likely to lead to arbitrary detentions and searches, and these rights are more likely to be violated for members of over-policed minority communities.
There are further irrationalities just to the west, in Ontario. The province has re-declared a state of emergency, and restricted shopping and curb-side pickup hours, forcing more people to do their essential shopping during a narrower window. The government has issued a “non-curfew” that gives wide discretion to police to enforce a loosely defined “stay at home order”.
The Ontario lockdown continues for all businesses except those who have been granted special status on the essential service list. This list is inherently arbitrary, and excludes a number of Charter protected activities.
For example, places of worship are closed, but film production may continue. A church cannot hold a service, but a movie studio could rent out a church, hire dozens of actors, and film a church service scene. This violates religious freedom rights for congregants in an arbitrary way.
Likewise, photography studios are open for commercial production, but not for retail production. This means under a lockdown, a soap company could hire models and makeup artists and rent out a studio to take photos for commercials. But it is not permitted for a single photographer to rent out a studio for family portraits. This implicates freedom of expression rights for artists and consumers of art.
Access to healthcare is also impacted by the lockdown. The provincial essential service list includes regulated health professions, as well as personal support workers (who are not a regulated profession). However, there are many vital healthcare services that are not provided by members of a regulated health profession. For example, lactation consultants provide an incredibly important service for new mothers and babies, and they are not permitted to provide in-home services because they are not regulated.
So under the existing rules, someone could hire a massage therapist to come to their home, but not a lactation consultant. While massage therapists certainly provide an important service, it is not more important than helping a new mother learn how to nurse a newborn baby. There is no rationale for this differentiation, and it is an unjustified limit on women’s rights to make choices about their own health and security of person, guaranteed in section 7 of the Charter.
And of course, there is the continued arbitrary distinction between big and small retail. Big box stores like Costco and Walmart remain open and busy, while small local book stores, florists and stationary shops are closed, even when they can ensure only one customer in the store at a time. This has created a particular problem for conservative politicians, for whom small business is their political bread and butter. Manitoba’s Premier Brian Pallister has solved his political problem by imposing arbitrary rules that restrict what can be purchased at big box stores, irrationally requiring aisles to be roped off. This is a decision made as a result of political or lobby pressure, not as a result of public health. The virus does not spread more easily in some aisles than others.
These measures limit our fundamental rights, like the right to assemble, associate, express ourselves, worship, make healthcare choices, and even to move about freely. These rights cannot be limited unless the limits are rationally connected to the goal of stopping COVID from spreading.
Our governments have the unenviable job of tailoring healthcare measures so that they achieve the goal of reducing transmission while still balancing our fundamental rights and civil liberties. But as case counts rise, the need for balance cannot be thrown out the window. Solutions need to make sense. Not just because our Constitution requires it, but also because keeping public support for existing health measures requires it.