Public (or civil) liberties were not designed for peace and social stability: they were forged in the tumultuous period after the Second World War and designed to create safeguards against state incursions into our fundamental rights. In the context of the COVID-19 pandemic, here in Canada and around the world, citizens have been inundated with declarations of emergency, orders, and decrees, touching every aspect of our lives.
This briefing examines the legal authority for the new powers that governments are exercising and argues that this is a time for more, rather than less, vigilance. Emergency powers are usually exercised with little if any legislative oversight and the courts are (and will likely be) deferential to government decisions during times of crisis.
Nonetheless, there are warning signs internationally and even in Canada about overreach and about the legacy of the pandemic in terms of state powers. The media have sounded warnings about “coronavirus coups” in authoritarian regimes, where leaders use the crisis to crush opposition and criticism.
At home, a range of executive orders has been issued to restrict the rights of Canadians, including mobility rights -- in terms of the right to enter the country and travel across borders -- and the rights to association and peaceful assembly, which have been eliminated in terms of the bans on physical gatherings and rules on social distancing.
In some cases, these broad orders, designed for the collective good, have not been calibrated to address the needs of vulnerable groups and populations or individual circumstances. The measures put into place in seniors’ homes and institutional and long care facilities, for example, have had unintended consequences for the security of the very people they were trying to protect. Indigenous communities, especially remote communities, have inadequate access to health care and food security. Prisoners and correctional facilities have encountered unique challenges. Just this past weekend, the Quebec government announced that it would be geo-tracking people using cell phone data, without securing judicial warrants. New forced isolation orders have been introduced, with minimal judicial oversight.
Meanwhile, though, the Canadian Charter of Rights and Freedoms is still firmly in place. None of the new measures have been introduced using the notwithstanding clause. The federal Emergencies Act has not (yet) been invoked. And international law still applies to protect many human rights, even in times of emergency.
All of this raises fundamental questions that we are all still grappling with: how do we assess the legality and transparency of government action in the face of new and rapidly changing circumstances? Are we experiencing irreversible surveillance creep and force drift as law enforcement exercises ever-growing powers, to track, trace, and control our movements? And how will we roll it all back afterwards?
In closing, this pandemic may have wrought havoc, but it has also offered us a unique opportunity, to address the glaring gaps in some of our social and health services, to improve access to justice, and to ensure that we are better positioned to address the needs of those most vulnerable among us for both the long term and for the next time.
This briefing note was prepared by Pearl Eliadis in response to her webinar delivered on April 8, 2020. You can watch that webinar below.
Affiliate Member at the Max Bell School of Public Policy
Adjunct Professor in McGill’s Faculty of Law
Over 20 years of experience in democratic governance and public policy; has been retained by clients including the UN, the European Commission and the OSCE in China, Ethiopia, Nepal, Rwanda, Sri Lanka, Sudan, Tajikistan and Timor-Leste
Core Policy Course: Ethics, Rights, and Law;
Policy Case Study: Preventing Violence Against Women and Children in Kenya