Passengers landing at German airports from countries with high-levels of COVID-19 are now required to submit to throat swabs and told to go into self-isolation until the results arrive a few days later. If travellers don’t comply, they can face fines of up to $39,000. This new mandatory testing regime is Germany’s way of letting people travel while keeping the coronavirus at bay.
In Ontario, Premier Doug Ford has flirted with the idea of mandatory testing, but only for agricultural workers, who have proven to be at a particularly high risk.
Some parents have also been thinking about mandatory testing. Should children be required to show negative tests before they’re allowed to go back to school? This is impractical and unlikely to happen anytime soon, but it raises an important question. Can governments really force us to accept a COVID-19 test without violating our constitutional rights?
Toronto criminal defence lawyer Ryan Handlarski says that during an emergency mandatory testing regimes are likely to be constitutional as long as they’re carefully crafted to protect rights.
The main reason governments would need to be careful when designing mandatory testing regimes is Section 8 of the Charter of Rights and Freedoms, which says that everyone has a constitutional right “to be secure against unreasonable search or seizure.”
Taking someone’s blood and throat cells against her will is a seizure. That’s been clear since at least 1988, when the Supreme Court of Canada released its decision in R v. Dyment. In that case, a doctor had handed over a vial of a patient’s blood taken after a car crash and gave it to a police officer so that he could determine the blood’s alcohol content. Justices Brian Dickson and Gerard La Forest ruled that this was an unreasonable, unconstitutional seizure under section 8.
“The use of an individual’s blood or other bodily substances confided to others for medical purposes for uses other than such purposes seriously violates the personal autonomy of the individual,” they wrote.
Of course, some seizures are reasonable. As Justice Dickson wrote in the 1984 case Hunter v. Southam Inc., there will be cases where the “public’s interest in being left alone by the government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals.”
If the government’s goal of preventing the spread of a deadly virus outweighs the individual’s interest in being left alone, mass mandatory swab testing may be reasonable. That’s even more likely to be true at an international border where people can’t reasonably expect much privacy, making an airport testing program like Germany’s especially likely to be constitutional.
Handlarski says that even if the seizure of cells on the swab is found to be unreasonable, the government may still be able to justify it in the context of an emergency using section 1 of the Charter, which says governments can limit rights and freedom are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The 1986 case R v. Oakes established four things that governments must show for limits on constitutional rights to be reasonable and demonstrably justified. The government must have a pressing and substantial objective, which would be easy to argue during a deadly pandemic. The government must also show that the means it has chosen to achieve its objective are rationally connected to the limit of the right; this too would be fairly easy to do. The government would then need to show that its chosen means are minimally impairing of the Charter right, and that there is an overall proportionality between the benefits of the limit and its deleterious effects.
These last two parts of the Oakes test are the reasons the government would need to be careful about how it designs a mandatory testing regime. For example, Handlarski says that for a mandatory testing regime to be minimally impairing, officials ought to use swab tests rather than drawing blood from veins. Supreme Court Justice Louise Arbour wrote in the 2003 case R v. S.A.B. that cheek swabs are “not terribly intrusive.”
Whichever test is used, Handlarski says the government couldn’t hang on to the sample, test it for other diseases and decode the DNA because that wouldn’t be minimally impairing of the privacy rights described by section 8.
To be extra certain that the mandatory testing regime is constitutional, the government might offer alternatives to those who refuse to take the test, such as 14 days of quarantine for those landing at airports or online learning for school children whose parents won’t let them be tested.
A person might try to argue that their section 7 right to “security of the person,” is violated by mandatory testing but Handlarski says that would be a stretch. “Security of the person” protects the right to bodily integrity. Although courts have made clear that mandatory medical tests interfere with bodily integrity, they’ve also said that the right protects individuals from serious bodily or psychological harm, and a 10-second swab of the throat is unlikely to qualify as serious.
Handlarski points out that, due to section 1, the constitutional rights and freedoms described in the Charter are not absolute. He thinks that governments can and ought to do mandatory COVID-19 testing, so long as they do it right.
Image by Prachatai and used under CC 2.0.