With governments scrambling to contain the spread of coronavirus amid conflicting and often dubious reports of its mortality rates, civil liberties advocates are concerned that some might be going too far. This includes unprecedented “crowd control” legislation such as “social distancing,” mandating the wearing of masks in some jurisdictions, the contemplated use of mandatory vaccination, compelling those who test positive for coronavirus to install tracking apps on their phones, and exorbitant fines for non-compliance. And with fines ranging across the country from $1,000 to $100,000, groups such as the Ontario Civil Liberties Association (OCLA), the BC Civil Liberties Association (BCCLA), Canadian Civil Liberties Association (CCLA) and the Justice Centre for Constitutional Freedoms (JCCF) are monitoring the situation closely. “Our staff, lawyers and paralegals continue to work hard from home offices to defend the constitutional freedoms of Canadians from coast to coast,” notes the JCCF website.
“Increased criminalization and surveillance… will likely have long-lasting impacts that will be hard to roll back,” cautioned Harsha Walia, executive director of BCCLA. “While there is no doubt that this pandemic requires exceptional government measures, severe curtailment of civil liberties does not necessarily correlate with public health objectives and may, in fact, undermine public health.”
Alberta’s Bill 10, which grants sweeping powers to its ministers, is of particular concern. The legislation increases the maximum penalty for disobeying the Public Health Act from $2,000 to $100,000 for a first offence, and from $5,000 to $500,000 for a subsequent offence. According to a National Post report by the JCCF’s John Carpay, “Without review or approval of the legislature, a minister can now create a new order requiring people to install tracking devices on their cellphones, and requiring them to register their phones with the government. Without any oversight, a minister can create an exclusive list of people who are legally permitted to go outside, or legally authorized to drive a vehicle, and impose a $1,000 fine on those who walk outside or drive ‘illegally’ because they are not on the list.” The bill could also allow the health minister to forcibly remove all sick people from their homes, and to issue an order for mass vaccination. Granting a minister such powers is unprecedented in the history of Canadian democracy and a clear violation of the Canadian Charter of Rights and Freedoms.
The JCCF has issued a legal warning letter to Alberta Premier Jason Kenney regarding “his government’s arbitrary and unscientific treatment of houses of worship compared to restaurants and bars.” The Justice Centre also filed a constitutional challenge to the Ontario government’s infringement of the constitutional right to peaceful religious assembly, causing the government to amend its order. Vaccine Choice Canada has engaged constitutional lawyer Rocco Galati to challenge the federal government “for violating our rights and freedoms during the COVID-19 outbreak,” based on the most dubious scientific grounds, citing a research paper by Professor Denis Rancourt written for the OCLA. (See LINKS.)
So far the BC Civil Liberties Association has primarily focused its work on public awareness campaigns and monitoring of civil rights abuses rather than litigation. It has generated a useful set of fact sheets that explain what our rights are during lockdown. (See LINKS.) In BC, we are currently under the Emergency Program Act (1996), which has a “sunset” clause requiring it to be re-proclaimed by the government every 14 days. The BCCLA points out that while people are strongly advised to maintain “social distancing,” there are no public health orders in BC requiring all individuals to physically distance outside their homes, with the exception of inside food premises. The Provincial Health Officer, Dr. Bonnie Henry, has also invoked the Public Health Act to declare a “public health emergency,” which empowers the Provincial Health Officer to issue verbal orders that have immediate effect. According to the BCCLA, “both the Emergency Program Act and the Public Health Act contain provisions for fines and imprisonment for a range of offences under those acts.” Police officers cannot ticket or detain people who have – or whom they suspect – may have violated provincial public health orders. However, health officers do have the power to enforce provincial health orders, and may call on the assistance of police or other officials. If called upon, police officers are authorized to use their powers, including the use of reasonable force. Violating provincial public health orders can result in fines upwards of $25,000 and/or up to six months imprisonment.
At the federal level, the Canadian Quarantine Act has been invoked, which grants quarantine officers broad but not total powers. Punishment for those contravening the act can include fines ranging from $200,000 to $1 million or imprisonment for up to three years. Most of this federal legislation has to do with managing imports and borders. An even more powerful legislation, the federal Emergencies Act, has not been sought because it subsumes the authority of provincial Premiers to the Prime Minister’s office, something few provinces are willing to do. According to lawyer Rocco Galati, Prime Minister Trudeau’s weekly pronouncements are essentially recommendations and do not have the force of law. Only the federal Cabinet has the authority under the Quarantine Act to issue binding orders, for example, the requirement for citizens returning from abroad to quarantine for 14 days whether ill or not. A peace officer may arrest those who fail to comply.
Unfortunately, some Canadian jurisdictions have reacted with draconian force. The City of Toronto announced that there could be fines as high as $5,000 for citizens who fail to observe two-metre social distancing. An Ottawa man was fined $880 for walking his dog in a public park that had been closed by the city. An April 8 Ottawa Citizen report noted that Regina Police issued a $2,800 ticket to a young woman for failing to observe “social distancing,” while a homeowner in Brampton, Ontario was charged on March 31 for hosting a barbecue attended by about 20 people. Mayor Patrick Brown suggested the fine could reach as high as the maximum $100,000. When Edmonton resident Patrick Lefebvre rallied a small group to demonstrate at the Provincial Legislature, he was arrested by a Sherriff and fined $1,200. This despite the fact that he was following Alberta regulations limiting gatherings to a maximum of 15 people, and that the demonstration was peaceful. “The Canadian Constitution protects the rights of people to assemble peacefully and to express their opinions at places such as the Legislature grounds,” stated Justice Centre lawyer James Kitchen. “The Charter does not cease to protect these rights, even during a declared public health emergency. COVID-19 has not suspended the rule of law. The Sheriffs’ actions in physically detaining and ticketing Mr. Lefebvre without cause were egregious.” At one point, the federal government toyed with the idea of a new law to fight “pandemic misinformation.” Opposition Leader Andrew Scheer has so far been the most vocal critic of the idea, correctly pointing out that this would eliminate the right to free speech as guaranteed under the Canadian Charter of Rights and Freedoms.
Denis Rancourt, a retired professor of physics at the University of Ottawa, has prepared a report for the OCLA, assessing the scientific literature being used to justify lockdown policies. He concluded that there is insufficient evidence to support a general population lockdown. “The long-term impacts of the broadly-applied infringements in civil rights and freedoms are not known, including any permanent structural erosion of democracy itself, due to increased authoritarianism and heightened regulatory or penal consequences for violating government directives.” Rancourt has also recently issued a research paper debunking the effectiveness of masks in preventing the spread of flu-like viruses.
Groups such as OCLA and JCCF are urging anyone who has received a fine to contact them for advice and possible representation. Please keep in mind that these groups are mostly nonprofits so support them generously with your donations. “The price of freedom is eternal vigilance.”
“Bill 10: Alberta government gives itself sweeping new powers to create new laws without Legislative Assembly approval,” Justice Centre for Constitutional Freedoms, April 6, 2020: https://www.jccf.ca/alberta-government-gives-itself-sweeping-new-powers-to-create-new-laws-without-legislative-assembly-approval/
“John Carpay: Alberta’s Bill 10 is an affront to the rule of law,” John Carpay, National Post, April 14, 2020: https://nationalpost.com/opinion/john-carpay-albertas-bill-10-is-an-affront-to-the-rule-of-law
“Kenney challenged on unscientific and arbitrary violations of Charter freedoms,” Justice Centre for Constitutional Freedoms, May 19, 2020:
“Ford government amends prohibition on gatherings to permit drive-in religious services,” Justice Centre for Constitutional Freedoms, May 19, 2020:
“VCC Announces Legal Action,” Vaccine Choice Canada, May 13, 2020: https://vaccinechoicecanada.com/in-the-news/vcc-announces-legal-action/
“The Pandemic is a Prism:” Civil Liberties and the COVID-19 Crisis,” May 22, 2020: https://bccla.org/2020/05/the-pandemic-is-a-prism-civil-liberties-and-the-covid-19-crisis/
“Criticism of Government Response to COVID-19 in Canada,” Professor Denis Rancourt, Ontario Civil Liberties Association, April 18, 2020: https://www.researchgate.net/publication/340738912_OCLA_Report_2020-1_Criticism_of_Government_Response_to_COVID-19_in_Canada
“Masks Don’t Work: A review of science relevant to COVID-19 social policy,” Professor Denis Rancourt, Research Gate, full research paper: https://www.researchgate.net/publication/340570735_Masks_Don’t_Work_A_review_of_science_relevant_to_COVID-19_social_policy
“Alberta man challenges $1,200 COVID ticket over peaceful assembly and expression at legislature,” Justice Centre for Constitutional Freedoms, May 8, 2020: https://www.jccf.ca/alberta-man-challenges-1200-covid-ticket-over-peaceful-assembly-and-expression-at-legislature/
“Britannia man fined $880 while walking dog through Britannia Park,” Ottawa Citizen, April 7, 2020: https://ottawacitizen.com/news/local-news/britannia-man-fined-880-while-walking-dog-through-britannia-park/