Issue 16: Social distancing and civil liberties

Canadians are generally in favour of government restrictions on their rights during the pandemic, but the the haste and lack of clarity is threatening the rule of law

If you are interested in contributing a briefing to this newsletter, drop me a line at andrew2.potter@mcgill.ca. Today’s briefing is by Pearl Eliadis (PE), a human rights lawyer and adjunct professor at McGill University, where she teaches civil liberties. She is also a member of the teaching faculty at the Max Bell School Public Policy.

ON MARCH 13, Quebec declared a public health emergency. Since then, the provincial government has issued five orders-in-council and almost 20 ministerial orders that have turned our lives upside down and restricted the exercise of two of our most fundamental freedoms, the rights to freedom of association and to peaceful assembly.   

Restrictions have been growing on a daily basis, but most people are frightened and cautious, and generally agree that we must do what needs to be done. Indeed, a recent Ipsos-Reid poll says that Canadians overwhelmingly support stronger government measures to fight COVID-19.

And so across Canada and across Quebec, “social distancing” and bans on gatherings are being enforced vigorously. This is especially true in Montreal, with the police issuing steep fines. But the legal basis of all of this is not clear. On what basis are police authorized to fine people? Do the new rules overreach? Are constitutional rights even relevant? 

Where things stand

We are in new territory. There has not been an emergency on this scale since the Charter was entrenched in 1982. Still, there are basic signposts that give us direction.

First, the Canadian Charter of Rights and Freedoms is still firmly in place. It still guarantees our freedom of association and peaceful assembly (section 2), the rights to take up residence in any province, and to pursue our livelihoods in any province (section 6 (2)) and the rights to life, liberty and security of the person (section 7). In international law, the International Covenant on Civil and Political Rights goes even further, with Article 12 guaranteeing a general right to “liberty of movement” within a state territory. The orders about gatherings and social distancing are direct violations of the rights to freedom of association and peaceful assembly.

Second, a minister cannot issue an order “notwithstanding the Charter” because the notwithstanding clause must be in a law passed by a legislature. The emergency orders are not laws passed by legislatures.  They are executive orders that are permitted within existing laws, and designed for quick, decisive action in times of crisis. 

Third, and importantly for this context, all these laws can be limited in times of emergency.  The courts will likely show considerably deference to the government to protect the public interest, provided that the measures taken meet basic constitutional standards. The hallowed liberal focus, some would say obsession, about individual rights at the expense of collective interests has been lawfully turned on its head. Public health is all about the collective. 

Yet the government’s new powers do not mean that the executive has a blank cheque to restrain rights. Limitations on rights have to be modulated to fit the circumstances, a feature that is built into the Constitution. Section 1 of the Charter allows for reasonable limits on rights, provided the limits are “prescribed by law”, and can be “demonstrably justified” in a free and democratic society. Even international human rights law allows governments to derogate from certain rights in times of emergency.

Don’t stand too close to me 

Which brings us to the rules on gatherings and social distancing and police powers to impose fines on people in an effort to dampen the spread the virus. The rules are easy to find, but it is actually quite difficult to discern the legal connection between these rules and the government’s power to fine people for disobeying. 

On April 3, I decided that I would try to find out how that connection worked. I went for a walk on Mount Royal to ask a police officer.  It was not hard to find one; they were everywhere. 

Waving down the first police car I saw, I asked the two officers this question: I knew that the Public Health Act allows for fines to be issued in times of emergency in a general sort of way, but what (and where) was the legal mechanism connecting the fines to the bans on gatherings and standing too close together? 

The officers looked at each other.  They looked at their smart phones and monitors. They flagged down a second police car. A third officer pointed me to a section of the Public Health Act that turned out to be incorrect. 

At their suggestion, I called the SPVM’s media line. Insp. André Durocher phoned back minutes later and referred me to the Public Health Act. Section 139 allows an “authorized person” to issue a fine of between $1,000 and $6,000 to anyone refusing to “obey an order they are entitled to give.” 

Yes, but the essence of the offence is the refusal to obey an order. Doesn’t there have to be an actual refusal first? 

Insp. Durocher informed me that officers could not issue fines on the spot anyway but had to simply collect the information from potential offenders, and then advise the ministry of health. 

Don’t even think of standing too close to me

That information changed the very next morning. On April 4, the Quebec director of criminal and penal prosecutions announced that police would now be issuing fines on the spot. To justify this, yet another section of the Public Health Act was invoked, permitting the government to issue “any order necessary,” without specifying the order that was deemed “necessary”.  

The March 20 order-in-council banning gatherings does not define “gatherings”, but the interpretation appears to be that it can be as few as two people. The same order requires people to maintain a distance of two metres apart.

 Montreal police have suggested the two orders need to be understood separately. If people are “together” and yet maintaining a 2 metre distance between them, the police can still fine them for “gathering”. A recent incident where police fined several people in Montreal for being in the same park together, despite keeping two meters apart, shows the rules may not be clear to everyone.  In fact, external gatherings are permitted under the Order in Council as long as people keep 2 metres apart. 

Pandemic policing?

Neither of the orders contained in the order-in-council creates an “offence”: the offence is created by  section 139 of the Public Health Act, previously mentioned, that requires a refusal to obey. The word “refusal” connotes a conscious intention to disobey: the Oxford Dictionary defines it as “to say or show that you will not do something that somebody has asked you to do.” If police are issuing tickets “on the spot” without giving people the chance to obey, there is a genuine question in terms of the exercise of these police powers, especially given that the orders relate to restrictions on fundamental rights and freedoms. 

These are difficult times. The police undoubtedly have a tough job, especially now. They are entrusted with maintaining public security and we look to them to ensure our safety. But we should be at least as vigilant during times of emergency, perhaps more so, precisely because  legislative oversight has been circumvented and judicial oversight is harder to access.

The Supreme Court has also held – repeatedly – that democratic societies founded on the rule of law require a legal basis for restrictions on rights. Police officers may only interfere with individual freedoms if authorized by law and they are bound by strict rules. Their own code of conduct requires them to know and understand the law and the offences they are called upon to prevent.  

Policy Lessons for Public Emergencies

So even in times of emergency, and even when the government enjoys much greater latitude to encroach on our rights in emergencies, restrictions and encroachments on rights must still be provided for by law, and they must be necessary, precaution-based and proportionate responses to the crisis. More fundamentally, the law must be easy to find, understand and apply to the circumstances.  

These lessons are still important today. 

But the haste with which orders are issued makes the rule of law hard to discern. The rush of interconnected executive orders needs to be assembled to make any sense out of it.  We have received a collection of bits and pieces. There is a manual somewhere. It takes a day or so to put it all together. Sometimes a piece is missing. 

Policymakers need to be sensitive to the importance of connecting the dots for people and making sure that coercive measures are transparently communicated and explicitly underpinned by the rule of law. Police forces should be training their own staff and not leaving it to individual officers to figure things out. As the Supreme Court of Canada has also made clear, each citizen should be able to “legitimately expect that police officers … will comply with the law in force, which necessarily requires them to know the statutes, regulations and by-laws they are called upon to enforce.” 

Emergency responses are important to protect us all but, at the same time, restrictions on rights must be proportional, necessary, and based on principles of precaution. As the Canadian Civil Liberties Association has recently argued that rules that don’t make sense or that appear unfair will eventually be ignored. 

None of us wants that, least of all during a pandemic. (PE)

(This piece has been edited since publication to clarify a few minor points - AP)

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Policy for Pandemics is produced and edited by Andrew Potter and co-edited by Charlotte Reboul and Paisley Sim (bios here). If you have any feedback or would like to contribute to this newsletter, please send an email to andrew2.potter@mcgill.ca