February 2021 Published since 1940 | Vol.69 No. 9
Legal Tensions Are Rising
By Nathalie Des Rosiers and Zoe Sebastien
Synopsis
The pandemic has imposed a multitude of challenges on democratic societies - including legal ones. The challenges extend to issues at the border but at the core are efforts to ensure that the courts continue to exercise an accountability function and that legal doctrines of Charter compliance and reasonability prevail. This essay identifies and discusses five key legal challenges that have been brought about by COVID-19 which are likely to persist even after the pandemic is conquered.
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A CIC publication | thecic.org Nathalie Des Rosiers is Principal of Massey AboutCollege and the the co-editor,Author withs Peter Oliver and Patrick Macklem, of the Oxford Handbook of Canadian International Council the Canadian Constitution (2017). She taught “Pandemics and the Law” at the Faculty of Law, University of Toronto and Trinity College earlier this academic year. Previously, she has President and Research Director / Ben Rowswell been Dean of Law, (Common Law and Droit Civil) at the University of Ottawa, President of Programming Manager / Daniel Lis the Law Commission of Canada and the Operations Manager / Catherine Hume General Counsel to the Canadian Civil Liberties Chair of the Board / William C. Graham Association
Copyright 2021 by the Canadian International Council. Zoe Sebastien is a JD candidate at the University of Toronto Faculty of Law and will The opinions expressed in this publication are be articling next year at Osler, Hoskin & those of the author and do not necessarily reflect Harcourt LLP. Ms. Sebastien worked as a the views of the Canadian International Council summer student at the Superior Court of Justice or its Board of Directors. in the Office of the Chief Justice after her first year of law school. Prior to law school, Ms. Sebastien completed a SSHRC-funded MA and BA with honours in philosophy at the University of Toronto. Zoe is currently co- authoring two forthcoming undergraduate textbooks on law and society, one with Rock’s Mills Press and another with Oxford University Press.
Vol. 69 No. 9 | February 2021 2 Emergencies test democracies and their legal systems in consider the unequal burden of rules, particularly how profound ways. As dramatic decisions are left to the they will accentuate inequality. A human rights framework executive branch, many affected people have little does not mean that restrictions are unwarranted or must recourse to be heard or accommodated. Although law is be eliminated. Indeed, because vulnerable groups are more no stranger to the management of emergencies, tensions likely to be infected, the failure to deal with the spread of do arise. We describe five major legal tensions that arise in the disease can be analyzed as a violation of the right to times of pandemics, linked to border management. We equality. For example, failures to address the recurrent suggest that these tensions are likely to be exacerbated in organizational weaknesses in long term care homes are the coming months as the toll on persons, the spread of likely to be challenged as violations of the right to new variants and the uncertainty surrounding vaccine equality.4 What a human rights framework for the delivery and distribution force governments to act more management of the pandemic does require is the and more harshly. The COVID-19 fatigue could translate evaluation of and mitigation of differential impact. In the into legal challenges, as trust and hope wear thin. context of border closings, this will require an assessment of the differential impact on families disseminated Canadian law does recognize that emergencies require throughout the world or on workers forced to travel. The adaptation of legal norms: after all, the right to life is media often represent the imposition of restrictions essential to the exercise of all other rights and liberties. through a middle-class lens: border closings are about Courts tend to be quite deferential to decisions of elected limiting the “snowbirds” from travelling or preventing officials made in difficult circumstances, with little families from going to Cancun for March break. However, information and little time.1 This has been the case travel is not only about middle-class hobbies; rather, travel generally in Canada for the last few months. However, can be essential for survival when one flees violence or courts also recognize that they remain important required for humanitarian reasons. For example, the accountability forums and they must ensure that the lives failure to address the gender implications of denying travel of all persons are valued equally, that the Constitution is to escaping victims of domestic violence ought not be followed, and that rationality prevails. Up to now, the tolerated when there are ways to manage the risk of protection of equality and human rights have been the infection through self-isolation. primary reason for judicial intervention. Second, many of the freedoms provided in the Canadian The pandemic has revealed profound inequalities. A Charter of Rights and Freedoms are violated by public human rights framework to deal with the pandemic is health orders. Limits on religious services violate the sorely needed. We know that “stay at home” orders, freedom of religion, limits on public gatherings infringe curfews and confinement cannot be respected by people the freedom of association and freedom of expression. who do not have a home, or a safe one – one where they Compulsory mask-wearing also violates the freedom of are not threatened or belittled, one where there is not expression since masks are now symbols of compliance enough space for every member of the household to work, with government policy and a refusal to wear one has a study or play. Courts have recognized that the homeless political message. In addition, the Atlantic “bubble”, and are particularly affected by the pandemic: shelters may be compulsory isolation at the border or upon arrival from an unsafe or unable to accommodate everyone2 and so streets international flight all limit mobility rights. However, in must remain “open” for the people who have nowhere else Canada, no right is absolute, and governments can always to go.3 seek to defend the limits on freedoms by claiming that they are “demonstrably justified in a free and democratic A first legal tension arises when governments do not take society”. This is how the issue will be defined by the into account the differential impact of rules. A human courts: are the measures necessary, proportionate and rights or equality framework requires that governments reasonable?
1Taylor v Newfoundland and Labrador, 2020 NLSC 125, online:
Vol. 69 No. 9 | February 2021 3 Up to now, courts have accepted that governments may demand, a continuation of emergency powers beyond follow an approach rooted in the precautionary principle,5 what is necessary. There will be limits to executive and that they do not need to have the “perfect” system. orders being tolerated. Some irrational distinctions have been tolerated.6 Nevertheless, we can predict that the failure to provide a In federations like Canada, a fourth tension is clearly minimum level of accommodation for humanitarian cases palpable as federal and provincial governments must or the denial of any appeal mechanism will be challenged. coordinate the sharing of information and work Up to now, the legal challenges, even if unsuccessful, have together to orchestrate mass vaccinations. Federalism precipitated reviews of policies and an attempt to allow challenges occur: to divert attention away from for exceptions. For example, cases have been brought to problems in one's own jurisdiction, it is tempting to challenge absolute bans on family caregivers in long-term blame the other level of government. The emergence of care homes and the government responded by mollifying provincial frontiers, as provincial governments attempt its approach and recognizing the health promotion role of to protect their own residents by restricting inter- family members for residents.7 Similarly, the recent provincial travel, has been legally challenged, compulsory 3-day quarantine for international travellers unsuccessfully to date. Eventually, courts will be called arriving at Canadian airports may have to be adapted to on to determine whether travel restrictions are give exceptional treatment to people attending funerals or justifiable in light of public health advice or rather caring for their loved ones. Blanket rules without motivated by provincial residents' attempts to secure exceptions may be vulnerable under the Charter: the preferential vaccine treatment. Already, some people courts will not invalidate the entire scheme but may force are asking for additional powers to be exercised by the governments to respond in a more nuanced way in cases federal government and provincial governments are of serious hardship. demanding additional funds. The role of cities in the federation has also been highlighted and their Some may see public health models as incompatible with constitutional “weakness”, articulated around their a rights-based model. We disagree. Both are based on the dependency on other governments, will need to be prevalence of rationality over fear. Courts do understand addressed. Because the pandemic was not experienced and use the precautionary principle. What they do not in the same way across the country, the acceptability of and should not tolerate is irrational and abusive federal border restrictions may eventually be authoritarian rule-making dressed up as good public challenged. The duration of the closing of the American health measures. When governments act in a manner that border may become an issue for provinces, such as is not rational, when their responses are not grounded in Ontario and Quebec, which depend on trade with the evidence, when they go further than they must, just US. The strength and functionality of Canada's health because it is politically expedient, courts should intervene. care system is likely to be challenged by the Public health measures are grounded in respect for catastrophic impact of the pandemic. Our federation evidence and an understanding of a variety of health will not emerge unscathed from this pandemic: it will concerns, social determinants of health and evolving have been transformed. knowledge. The legal concerns are not about public health vs. the Charter, but rather about a need for reconciliation Finally, a serious legal tension that has arisen is the role of varied human needs in a rational and transparent way. of courts as a retrospective accountability mechanism. Already, some governments have sought to limit or 8 A third legal tension always arises in times of emergency, eliminate access to courts post pandemic for any when the executive branch is empowered to act quickly liability issue related to it. Our legal system will have to and begins dispensing with the rigors of legislative reckon with these attempts: can governments insulate debates. Throughout the world, we have seen themselves from liability for the pandemic and eschew authoritarian reflexes emerge from the sustained use of legal accountability simply by declaring it so? Can they emergency powers: executives may get used to, and prevent challenges against various actors who behaved
5Taylor, supra note 1 at para 467 6 Hudson’s Bay Company ULC v Ontario (Attorney General), 2020 ONSC 8046, online:
Vol. 69 No. 9 | February 2021 4 negligently? Can they limit the ways in which commercial actors are redistributing the costs of the pandemic?
Legality is essential to the management of a pandemic because the public health response rests on people willingly abiding by the rules. A policing approach to ensuring compliance is expensive, unrealistic and fraught with problems. For this reason, it is critical that constitutional constraints be taken into account in managing the pandemic.
Legal questions abound and they should. Times of uncertainty create vacuums, resulting in a great deal of pressure to decide things quickly. Inertia is despised and careful analysis of actions may sometimes be put aside. Yet, time for Charter scrutiny must be made, even in the midst of a pandemic. We all want the vaccine yesterday and we all want fast decisions, but not illegal or unconstitutional ones.
Vol. 69 No. 9 | February 2021 5 About the CIC The Canadian International Council (CIC) is Canada’s foreign relations council. It is an independent, non-partisan membership organization and think tank dedicated to advancing constructive dialogue on Canada’s place in the world and providing an incubator for innovative ideas on how to address the world’s most pressing problems.
The non-profit CIC integrates the voices of a diverse and multidisciplinary group of societal actors from academia, business, civil society, government and the media, and endeavours to inform and develop the capacity of the country’s next generation of foreign policy leaders.
One of Canada’s oldest and most respected think tanks, the CIC is not only dedicated to nurturing dialogue on Canadian foreign policy domestically, but also in projecting a Canadian perspective on the international stage. In our rapidly changing world, this effort to promote greater understanding and foster meaningful debate on critical challenges is more important than ever.
The CIC would like to acknowledge the editorial contribution of Wesley Wark and Arne Kislenko in making this series of articles possible.
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Behind the Headlines | February 2021