Legal Challenges to Pandemic Measures on the Rise as Civil Liberties Groups Cry Foul

March 3, 2021 Updated: March 3, 2021

The constitutional rights and freedoms of Canadians are front and centre in a flurry of legal challenges to pandemic measures, as civil liberties groups take on multiple cases they say represent unconstitutional measures implemented by authorities.

The Justice Centre for Constitutional Freedoms (JCCF) has court actions underway or pending, as of Feb. 25, against five provinces around lockdown measures it says violate Charter rights. And it’s suing the federal government for imposing mandatory hotel quarantine on travellers, among other travel restrictions

JCCF is also representing dozens of individuals across the country for violation tickets they’ve received related to pandemic measures, says litigation director Jay Cameron.

“We have at least 50 ticket cases where we are challenging the constitutionality of everything, from tickets for peacefully assembling to … people who were [ticketed for] sitting on a park bench,” he told The Epoch Times. “The list is growing.”

Cameron cites a laundry list of Charter rights—from fundamental rights such as freedom of religion or peaceful assembly, to specific mobility and legal rights—that have been violated by ongoing lockdowns and other pandemic measures. 

He says the unprecedented powers transferred to health officials during the pandemic has meant that many measures are mandated without the benefit of the parliamentary scrutiny and public consultation that are vital to a functional democracy. 

In many cases, officials are not providing the public with the evidence or guidance used to justify the measures, he says, which sets a dangerous precedent for government accountability. The Canadian Charter of Rights and Freedoms allows certain legal restrictions—so long as they are demonstrably justified.

“There has to be a requirement for public consultation in a legislative context, and a requirement for [health officials] to consider public feedback and the directions of the legislature,” Cameron says. 

“Otherwise, the whole thing is just completely undemocratic. It’s a dictatorship, and that is not too strong a word.”

The issue of policy transparency takes on more urgency in light of health measures that appear contradictory or that ignore prevailing evidence, he says. Examples include small businesses shuttered for months while big box stores remain open, churches ruled as non-essential while cannabis and liquor stores are deemed essential, and schools forced to close despite COVID-19’s minuscule risk to young people.

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People shop at the Toronto Premium Outlets mall on Black Friday in Milton, Ont., on Nov. 27, 2020. (The Canadian Press/Nathan Denette)

Bruce Pardy, a law professor at Queen’s University, says the pandemic has sparked “the most widespread violations of civil liberties in Canadian history,” and he worries that citizens have reached a “psychological threshold” where people become accustomed to having their basic rights bypassed.

“Whether we can recover our free society remains to be seen,” he said. 

Legal Challenges

Many pandemic health measures, such as travel rules, fall under the Quarantine Act—legislation that broadly extends the federal government’s powers during times of public health crises. But the act, rewritten after the 2003 SARS pandemic, was only ever intended to guide policy temporarily.

Though health officials proposed two weeks of lockdown measures during the initial outbreak a year ago to “flatten the curve,” many measures have continued for nearly a year, and in some cases increased. As the pandemic drags on, the legality and reasoning behind some measures appear to be attracting more scrutiny.

In B.C., a dispute between the province and religious leaders was heard in the B.C. Supreme Court on March 1 as three Fraser Valley churches challenged the constitutionality of public health orders, under which all in-person religious services have been banned since November. 

Quebec, which has seen some of the strictest pandemic measures in North America, has also been a target of legal challenges of late. 

In December, a coalition of Quebec business leaders, “Les Entrepreneurs en Action du Québec, filed a lawsuit against Premier François Legault’s government, saying that the province’s state of health emergency order and widespread lockdown measures, which have been continually extended, is unconstitutional. 

And last month, the Foundation for the Defense of People’s Rights and Freedoms filed a constitutional challenge to Quebec’s enforced curfew mandate, arguing that it violates people’s rights to liberty and to not be subjected to arbitrary detention under the Charter. Quebec is the only jurisdiction in Canada, aside from some northern communities such as in Nunavut and Manitoba, to adopt a curfew as a means to fight the pandemic

Cara Zwibel, director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association, said in a previous interview that the Quebec government should be required to communicate, using reliable data and evidence from other jurisdictions, why it’s necessary to impose curfews. Quebec’s public health director, Dr. Horacio Arruda, has admitted that there’s no study that proves curfews stop transmission, but said the measure was meant to discourage people from gathering. 

Zwibel also expressed concern that fines and ticketing, the primary methods of enforcing the curfew, appear to have had little impact on slowing transmission. She noted that the police’s main role in the pandemic should instead be to educate the public, while charges and arrests should be “a last resort.”

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A police officer checks the identification of a man in a park in Montreal on May 2, 2020, as police patrol the park to make sure people are observing physical distancing protocols amid the pandemic. (Graham Hughes/The Canadian Press)

In Ontario, meanwhile, the Toronto-based Constitutional Rights Centre (CRC) announced in January that it has taken on cases from several police officers in the province who are concerned that the public health enforcement measures they are tasked with violate the very Charter rights they swore an oath to protect. 

A press release from the CRC said the officers have retained legal representation to “clarify the constitutionality of the COVID measures they are being asked/directed to enforce” and on the “scope of their authority, duty, and discretion in their enforcement.”

Travel Rules Spark Rights, Safety Concerns

New travel rules are of particular concern to JCCF, which in February sued the federal government over what it calls a “blatant violation” of the charter. Cameron says the forced quarantine of returning Canadians violates five sections of the charter, as travellers are forced into quarantine even when they test negative for COVID-19 before boarding.

“You have more rights as somebody accused of homicide than you do as a citizen returning to your own country with a negative PCR test right now,” he said. “It’s a gross violation of fundamental rights and freedoms.”

The new rules, which came into effect on Feb. 22, require incoming travellers to quarantine in a government-authorized hotel at their own expense while awaiting results of a second COVID-19 test. 

After the rule was imposed, disturbing reports emerged of a sexual assault at one of the hotels in Montreal on Feb. 17. Another incident on Feb. 18 involved a quarantine screening officer who was accused of sexually assaulting a woman he was sent to check on at her home in Oakville, Ont. Travellers have also reported abysmal conditions at some of the hotels, including a lack of access to proper meals and bottled water, poor service, and minimal security. 

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Travellers arrive at the Toronto Pearson International Airport in Toronto on Feb. 1, 2021. (Nathan Denette/The Canadian Press)

Despite being pressed by the Official Opposition, federal health officials have so far failed to provide answers on what data was used to inform the decision to have travellers quarantine in hotels instead of at home. On March 1, the parliamentary public safety committee voted unanimously to study Ottawa’s quarantine enforcement measures in light of the sexual assault reports, and will call on federal ministers and health officials to testify. 

Cameron says that where JCCF and others have brought legal challenges against measures, the government has shown a “disinclination to litigate.” The cases that do make it to the courts have a good chance of success, he adds. 

“As the challenges wind their way through the courts, I do believe that some of these measures will be struck down.”