Caging the Virus: Is Mandatory Isolation Constitutional?
Category: The Charter, Legal Rights (Sections 7-14)
Introduction
Recent news articles raise concerns about how government measures to contain COVID-19 may infringe the Charter of Rights and Freedoms. One of the many measures raising concerns is mandatory isolation. While it is likely that the measures violate Charter rights, a court will likely find them constitutional. This article will explain why.
On March 17, 2020, the Government of Alberta declared a public health emergency due to pandemic COVID-19 and proceeded to implement emergency protections. These emergency protections include public health orders that restrict gatherings and services, and require mandatory isolation.
Conversion Therapy Ban: Does Calgary’s New Bylaw Violate Religious Freedom?
Category: The Charter, Fundamental Freedoms (Section 2)
On May 25th, 2020, the City of Calgary passed the Prohibited Businesses Bylaw that prohibits the practice of “conversion therapy”. Conversion therapy is any form of treatment that seeks to change someone’s sexual orientation, gender identity, or gender expression. The therapy can take the form of talk therapy, behavioural or aversion therapy, spiritual prayer, exorcism, and medical or drug-based treatments.
Positive that the Government is obligated to support you? Think again
Category: Legal Rights (Sections 7-14)
While financial struggles are not unique to times of emergency, the COVID-19 pandemic has thrown many Canadians into dire straits, such as losing their jobs, being unable to support their families, or even pay their rent. Since mid-March, the Federal Government has been providing financial support to Canadians out of work because of COVID-19.
The Freedoms We Cannot Afford to Ignore During COVID-19
Category: Pandemic
One of Canada’s forgotten constitutional freedoms has quickly become one of the most restricted in the era of COVID-19. In the nearly four decades since the Charter of Rights and Freedoms arrived, Canadian courts have paid almost no attention to section 2(c), which guarantees freedom of peaceful assembly.
Are Protests Illegal in Alberta? Charter Issues with Bill 1
Category: Fundamental Freedoms (Section 2), Equality Rights (Section 15)
In February 2020, amidst protests across the country interfering with railways and pipeline construction, the Government of Alberta introduced the Critical Infrastructure Defence Act. More commonly known as Bill 1, it outlaws interference with “essential infrastructure”. Several commentators oppose the Bill, arguing it violates the Charter of Rights and Freedoms. A group of professors from the University of Calgary called on the Government to recognize “that Bill 1 violates the Charter”. This article will summarise the Bill and analyze some of the key ways in which it may violate the Charter.
To be Tried Within a Reasonable Time: Affirming the Jordan Ceilings
Category: Legal Rights (Sections 7-14)
In October 2014, police charged a B.C. man with sexual assault against his daughter. Two years later a B.C. judge issued a stay of proceedings, dismissing the case against the man because the prosecution took too long, in the judge’s words: “the delay was excessive”. The result is that a man accused of a serious crime now walks free without a trial. This was an ordinary case, reflective of a shift in Canadian law brought about by the Supreme Court of Canada’s 2016 decision in the Jordan case. Since then, Canada’s judiciary takes the timeliness of trials more seriously than ever before. Jordan created presumptive ceilings – 18 months for provincial court trials and 30 months for superior court trials. If a trial takes longer than the ceiling, courts presume it is unreasonable.
COVID-19 and the Exercise of Legislative Power by the Executive
Category: Pandemic
Legislation Commented On: Regulations Act, RSA 2000, c R-14 and Public Health Orders issued in relation to COVID-19
The COVID-19 pandemic has become a rare opportunity to study the widespread exercise of emergency lawmaking powers in Canada. Governments have enacted legal rules on matters such as social distancing, quarantine, economic controls, regulatory relief, employment standards, landlord-tenant, access to justice, and health care protocols. Commentators have warned that we must remain vigilant in ensuring these emergency measures do not offend the rule of law, and this message is likely to intensify as more emergency measures are used to either further the current shutdown or control our emergence from it; for example, in relation to surveillance and privacy rights as Joel Reardon, Emily Laidlaw, and Greg Hagen recently noted here. These substantive concerns are amplified by the fact that most COVID-19 emergency powers are being exercised by the executive branch of government and its delegates, using legislative power delegated to them in public health or emergency statutes. Because it is unlikely that legislatures envisioned such an extensive use of these powers for a prolonged time period, shortcomings and gaps in the lawmaking process are becoming apparent. Hallmarks such as organization, clarity, predictability, consistency, transparency, and justification – which, in normal times, provide the executive with much of its legitimacy to govern – have been impaired or are missing altogether in the exercise of legal power to contain COVID-19. This post examines how Alberta ministers and the Chief Medical Officer of Health have been exercising emergency powers so far during the pandemic, and makes some pointed observations on the hallmarks of legitimate governance and the role of the Regulations Act, RSA 2000, c R-14, in this regard.
Alberta and its Physicians Clash Over a Right to Something Besides Striking
Category: The Charter, Fundamental Freedoms (Section 2)
On 9 April 2020, the Alberta Medical Association (AMA) filed a lawsuit against the Government of Alberta alleging the Government violated the rights of the AMA and its members by unilaterally terminating a contract between the AMA and the Government.[1] The AMA represents physicians in Alberta, with one of its key roles being to negotiate with the Government on their behalf.[2] They claim the Government of Alberta violated their members’ Charter right to freedom of association.[3] This right protects employees’ ability to bargain collectively with employers – allowing employees to negotiate with employers more effectively.
Pandemic Preparedness and Responsiveness in Canada: Exploring the Case for an Intergovernmental Agreement
Category: Pandemic
Canada’s lack of a coordinated response to the COVID-19 pandemic and the improvisatory nature of (at least many) individual provincial responses suggest that the Canadian approach to public health emergency preparedness and early public health emergency responsiveness remains inadequate. The federal government primarily played an advisory, spending, and/or data collating role in its “early” (though some said “late” where it followed provincial initiatives) response to the crisis. Provinces took and continue to take various approaches, some of which (like restrictions on interprovincial movement) have questionable jurisdictional bases and human rights implications.
Rights, Freedoms, and Medical Assistance in Dying
Category: Videos, Downtown Charter Series
Wednesday, June 10, 2020. Downtown Charter Series presented by Associate Professor Ubaka Ogbogu, University of Alberta. Canadian medical assistance in dying (MAID) laws were recently updated. However, they remain controversial in so many ways. Who qualifies? Who does not and why? Can health care providers object to any involvement in MAID? What safeguards to prevent abuse are in place? Professor Ogbogu answers these questions and more from the perspective of the Canadian Charter of Rights and Freedoms.
The Absolute Limits of Canada’s Emergency Powers: The Unwritten Constitutional Principles Entrench Rights that Remain Non-Derogable in Extremis
Category: Pandemic
Since the launch of the Centre for Constitutional Studies’ Pandemic Powers and the Constitution Blog, a number of thought-provoking posts have been penned by leading scholars in the areas of public law, health law, and constitutional law, including the contributions of Professors David Dyzenhaus, Paul Daly, Sujit Choudhry, Amy Swiffen, and Maxime St-Hilaire.
This post builds upon their observations about the constitutional limits of emergency powers implicit to the statutes that authorize them, the division of powers established by the Constitution Act, 1867, and the Canadian Charter of Rights and Freedoms. It presents the author’s position that there is another important source of rights in Canada; it is in our constitution’s grand entrance hall that Canadians should seek the principles that safeguard our most fundamental rights –regardless of the nature or scale of any future pandemic or public order emergency. Should these principles receive explicit recognition by the Canadian judiciary, this would also make it indisputable that Canada remains in compliance with its most rudimentary international obligations, namely those enumerated in Section 4.2 of the International Covenant on Civil and Political Rights (as interpreted by the Siracusa Principles on the Limitation and Derogation of Rights in the ICCPR, and General Comment 29 to the ICCPR of the United Nations Human Rights Committee).
“The New Normal”: COVID-19 and the Temporary Nature of Emergencies
Category: Pandemic
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”.[1] 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.
Indigenous Peoples and COVID-19: Protecting People, Protecting Rights
Category: Pandemic
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.
Justice in Troubled Times: Pandemic Disrupts the Right to be Tried Within a Reasonable Time
Category: Pandemic
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).
Additional Resources
Category: Pandemic
Connections to reputable sources of scholarly information on the COVID-19 pandemic.