Kevin Bacon had it right in the classic 1980’s film Footloose: “From the oldest of times, people danced for a number of reasons. They danced in prayer or so that their crops would be plentiful or so their hunt would be good. And they danced to stay physically fit and show their community spirit. And they danced to celebrate.”
Perhaps the premier is a fan of the film, or perhaps he caved to lobby pressure. Because dance classes are now permitted in Ontario. But this arbitrary exemption may cause a constitutional problem.
The problem in Ontario is that many other activities remain banned, in a lockdown stricter than anything contemplated by Bomont’s Reverend Shaw. While there are exemptions for dance and indoor team sport training, the ordered closures of yoga studios, martial arts centres, Zumba classes and other fitness centres make little sense.
The Charter rights of people who use these businesses are implicated. Freedom of assembly rights are triggered by business closures, and depending on the type of business, freedom of expression and freedom of association are engaged. Like dance, many activities currently shut down are a form of artistic expression. Yoga and martial arts can also have spiritual elements that trigger participants’ right to freedom of religion and conscience. Fitness also has enormous mental health benefits that many people rely on to stay healthy during this emotionally draining period, which could trigger the right to security of person protected under s. 7 of the Charter.
While the government can limit our rights under the Charter if they prove their lockdowns are “reasonable limits,” providing exemptions for some activities but not for other basically identical activities undermines the government’s position. In order to limit our rights, the limit must be fair and not arbitrary, and carefully designed to achieve the objective.
COVID is a dangerous virus that is easily transmitted. But it is not more easily transmitted in a yoga studio or a dojo than in a dance studio. The distinction serves no public health goal. Even if the government wanted to rationalize a continued lockdown for highly aerobic activities with greater potential for aerosols, like spin studios, this rationale simply doesn’t apply to weight lifting or group meditation.
What’s also concerning is that many group fitness activities are dominated by women. If you walked into any group fitness class in the pre-COVID era, the rows would be filled almost entirely by women. The exemption for team sports allows for indoor hockey or basketball training, male-dominated activities. The continued prohibition on group fitness disproportionately hurts women.
In Quebec, fitness studio owners fed up with that province’s restrictions have threatened to reopen. Owners of the facilities say they have spent thousands of dollars to ensure safety and social distancing between clients. Many businesses are concerned that unless they reopen, they will be faced with bankruptcy. The Quebec premier has responded that fitness studios that defy his government will be met by police and penalties.
In Canada, our Charter does not give protection to property, which means there is no Charter protection if the lockdowns cause economic harm. Our Charter right to life, liberty and security is an individual right that is not possessed by businesses.
However, the penalties for violating a business shutdown order includes the possibility of a term of imprisonment. Since a business cannot be imprisoned, this implicates the Charter liberty rights of any business owner who is charged. The government may not deprive people of their right to liberty except in accordance with the principles of fundamental justice, which means a law may not be overbroad, arbitrary, or grossly disproportionate. And it is quite clear that there is an arbitrariness problem in exempting some activities from the lockdown and not others.
In appeasing dancers and hockey players, the government has acted in an arbitrary and constitutionally questionable way and Premier Doug Ford has opened the lockdown up to the possibility of a legal challenge. Now yoga studios just need their own Kevin Bacon to fight this unfairness.
This column was previously published in the Toronto Sun.