In the inaugural post for this series on Canadian law and the COVID-19 pandemic, David Dyzenhaus argued that the federal government should not invoke the federal Emergencies Act, but rather, Canadian responses to COVID-19 should continue to employ our usual constitutional and legal frameworks. Dyzenhaus identified four reasons to be cautious about employing the Emergencies Act. I agree with his post, and I want to highlight another consideration that should inform the debate around whether to employ emergency frameworks: namely, the likelihood that the threat of COVID-19 is a long-term reality or, in the words of our Chief Public Health Officer, Dr. Theresa Tam, “the new normal”. This blog post draws on scholarship from the security and anti-terrorism field to caution about operating outside the usual legal frameworks to deal with the pandemic. To be clear, I recognize that governments may need to employ exceptional measures to tackle the destructive spread of the virus. However, I suggest that these exceptional measures should be taken through usual constitutional and legal frameworks and we should resist changes to legal or constitutional norms, such as, for example, erosion of constitutional and Indigenous rights, employment of the notwithstanding clause, departures from federalism constraints, or violations of unwritten principles like the rule of law.
The past month has brought sweeping, unprecedented change as individuals, communities and nations around the world struggle to deal with the COVID-19 pandemic. Efforts to contain the virus include significantly increased government powers and corresponding limits on civil liberties, as well as disruptions to individuals’ ability to work, socialize and care for one another. In Canada, Indigenous Peoples stand to be disproportionately affected by both COVID-19 and government measures intended to limit its spread. These impacts are a direct result of the historic and ongoing process of colonization. Below, we highlight some of the key issues raised by our clients and other Indigenous groups as the pandemic situation evolves.
INTRODUCTION On March 11, 2020, the World Health Organization declared SARS-CoV-2 (COVID-19) a pandemic. The world, and the administration of justice in Canada, changed dramatically within days. As pertinent examples of the effects on the administration of justice: circuit courts closed; the public were excluded from court rooms; criminal and civil court matters were summarily adjourned far into the future, sometimes with warrants “held,” although the accused were precluded from attending; trials were adjourned. This list is not intended to be exhaustive but highlights the events that may cause breaches of section 11(b) of the Charter of Rights and Freedoms, which protects the rights of individuals to be tried within a reasonable time. At the time of writing, this author knows of no case brought alleging delay caused in any part by the pandemic. This paper discusses the potential for such a case, and what courts and counsel may do to mitigate potential breaches of section 11(b).
On June 16, 2019, the Quebec legislature invoked Section 33 of the Canadian Charter of Rights and Freedoms in order to suspend, with regard to the Act respecting the laicity [secularism] of the State (ALS) that it was passing, all constitutional rights and freedoms which this section permits. The ALS prohibits certain categories of persons, such as public officials and managers, civil servants, administrative justices and statutory arbitrators, from wearing religious symbols in the exercise of their duties. . It also states that certain public services must both be provided and received with one’s face uncovered. Insofar as the reception of these services is concerned, however, this obligation applies only where face uncovering is “necessary to allow […] identity to be verified or for security reasons”. The face-uncovering obligation that is incumbent upon the beneficiaries of public services “does not apply to persons whose face is covered for health reasons or because of a handicap or of requirements tied to their functions or to the performance of certain tasks”.
Individuals and communities around the globe have been impacted by the COVID-19 pandemic. As federal and provincial governments introduce emergency measures in response to the evolving situation, the actions being taken often fail to take into consideration the unique vulnerabilities of Indigenous communities.
As a result, Indigenous governments are acting to safeguard their citizens and communities from the spread of the COVID-19 virus. Unfortunately, due to chronic underfunding and the suppression of Indigeous governance structures by the Crown, the majority are doing so without the infrastructure and governance capacity required to fully implement these measures.