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. download at thecic.org 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: <https://canlii.ca/t/j9p6v> [Taylor]. See, in particular, paras 456-464 where Burrage J. explains that while the pandemic is not “a magic wand which can be waved to make constitutional rights disappear”, it is appropriate for the court (and not an abdication of its responsibility as guardian of the Constitution) to give some measure of deference to officials who have expertise given the sudden emergence of COVID-19 as a novel and deadly disease. 2Sanctuary et al v Toronto (City) et al, 2020 ONSC 6207, online: <https://canlii.ca/t/jb46b>. 3Clinique juridique itinérante c Procureur général du Québec, 2021 QCCS 182, en ligne : <https://canlii.ca/t/jct9h>. 4Jackman, Martha. “Fault Lines: COVID-19, the Charter, and Long-term Care,” in Vulnerable: The Law, Policy and Ethics of COVID-19, ed. Colleen M. Flood et al. (Ottawa: University of Ottawa Press, 2020), 339-354, https://ruor.uottawa.ca/ bitstream/10393/40726/4/9780776636429_WEB.pdf. 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.