Pandemic Panic: How Canadian Government Responses to Covid-19 Changed Civil Liberties Forever
Joanna Baron and Christine Van Geyn, with forward by Preston Manning
Optimum Publishing International; 264 Pages
In March 2020, during the haze of the early and surreal weeks of COVID-19 lockdowns, the federal Liberals were preparing to go to parliament and table a bill that would grant themselves virtually unprecedented, sweeping powers to allocate billions of funds and raise taxes without consulting parliament – up to December 2021. Taxation is enumerated as a parliamentary power under the Constitution Act (1867), and even the Emergencies Act does not permit this to be modified.
The proposed bill meant many of the measures carried out under those new powers could be swept in without parliamentary debate and without the elected representatives of Canadians getting a chance to vote for or against the measures. The proposed bill was roundly rejected by all opposition parties. Andrew Scheer, then Conservative Party leader, commented “we will not give the government unlimited power to raise taxes without a parliamentary vote. We will authorize whatever spending measures are justified to respond to the situation but we will not sign a blank cheque.”
In the face of widespread opprobrium, the Liberals backed down and withdrew the blank-cheque provision from the bill. However, this early attempt at a power grab in the name of flexibility and public safety was, in retrospect, a foreshadowing of the numerous similar actions to come that undermined democracy and the rule of law in Canada.
The rule of law is the bedrock principle of liberal democracy that says no one in society – neither governments nor citizens – is above the law but all are governed under the law, and under the same rules, regardless of personal characteristics like wealth, connections, political power, race, or religious creed. It means that the rules that govern everyone are stable and predictable. From the perspective of the rule of law, citizens ought to know in advance the legal rules they could be held responsible for following. Legal rules should not be changed on an arbitrary whim or applied retroactively, and certain constitutional obligations are binding upon everyone.
Unfortunately, the requirements of wide-scale emergencies like pandemics have an observable tendency to hollow out the adherence to the rule of law, on the basis that flexibility, responsiveness, and swift action are more important in the moment than the higher-level importance of the rule of law. This sentiment is sometimes expressed by the maxims “necessity knows no law,” or, in Cicero’s words, salus populisuprema lex (the welfare of the people is the supreme law). However, these sentiments do not form part of our constitutional tradition and would seem to severely undermine the authority of our claim to be a constitutional polity at all.
During the pandemic we saw that departures from the basic requirements of the rule of law and democratic accountability in the name of public safety were sadly the rule and not the exception. Consider Ontario’s third-wave lockdown measures, likely enacted with the knowledge that they were unconstitutional.
For many Ontarians, Friday, April 26, 2021, stands out as a grim highwater mark of pandemic misery. While our friends and family south of the border were regaling us with stories of joyfully returning to normal life owing to widespread vaccine availability, most of Canada was being pummelled by a brutal third wave driven by the Delta variant. Due to a failure of Canadian government officials to either secure timely deliveries of vaccines or to scale-up domestic vaccine manufacturing, the vaccines were not estimated to become available at least until well into the summer.
On the afternoon of April 26th, in a press conference that was delayed by hours due to last-minute cabinet deliberations, Premier [Doug] Ford, flanked by Health Minister Christine Elliott and Solicitor General Sylvia Jones, announced a set of draconian measures aimed at curbing the spread of the virus. The measures included instituting a mandatory stay-at-home order and closing outdoor playgrounds. From a legal point of view the gravest worry was that the provincial police were now given extraordinary powers to randomly stop vehicles and inquire about an individual’s reasons for leaving their home. Police, along with bylaw officers, now had the power to demand that citizens provide their home address and explain why they were outside during the stay-at-home order.
The measures immediately struck alarm bells among civil rights activists: in a province of 15 million people, it would appear to be a foregone conclusion that police would by necessity engage in some sort of triaging behaviour in questioning individuals outside of their homes. And given what we know about police behaviour, that risked profiling of racialized communities, which already attract a heavier police presence. This issue is discussed in detail in Chapter 7.
This is concerning enough from a civil rights perspective, but reporting at the time also provided strong evidence that the government was thumbing its nose at the rule of law by ignoring strong signals that there were serious constitutional issues with the regulations. New legislation and regulations go through a legal risk assessment as standard practice, and the cabinet would almost certainly have required a legal risk assessment before approving the enhanced police powers. At the time, CBC reporting confirmed that Attorney General Doug Downey flagged potential constitutional problems during a cabinet meeting, only to be shut down.
We will never know what that risk assessment contained. However, it almost certainly raised some of the same concerns laid out by the Canadian Constitution Foundation and the Canadian Civil Liberties Association, which immediately put out statements that they would challenge these new police powers. Police departments across the province also put out their own statements that they would not use these new controversial (and likely illegal) powers.
But relying solely on police not to enforce an illegal regulation is completely unacceptable from the perspective of the rule of law, since the government should not be enacting unconstitutional laws in the first place, and knowingly so.
Indeed, the catch-22 of the police measures was that they were short-term regulations. The new police powers would likely have expired before a full legal challenge could be heard by the courts. So, it is likely that if the regulations had not been repealed, the government would have argued that any ultimate legal challenge would have been moot. The Ford government’s negligence was likely driven in part because it assumed that the courts would not hear such challenges in time, a deeply cynical perspective. Politicians who knowingly enact illegal laws deserve condemnation and have lost moral authority to govern.
The notorious Ontario “carding” measures were, sadly, just one colourful episode in an array of pandemic measures that flouted the ordinary operation of the rule of law. Another example was legislatures granting themselves infinitely expanded states of emergency.
At the beginning of the pandemic, Ontario entered a state of emergency under its Emergency Management and Civil Protection Act. Under section 7.0.1 of the EMCPA, the premier or the Lieutenant Governor in Council can declare a state of emergency in the province. However, the state of emergency expires after 14 days. But after a few months of the state of emergency under the EMCPA in the summer of 2020, the Ford government decided to replace the function of the EMCPA with a new act called the Reopening Ontario (A Flexible Response to COVID-19) Act. Under the new Reopening Ontario Act, the government defined the COVID-19 state of emergency to be over in Ontario. At the same time, however, it also transformed the emergency orders made under the EMCPA into orders under the Reopening Ontario Act and extended many of the powers of the EMCPA while eliminating the need for continued legislative approval and without any sunset clauses.
Repackaged power: By moving from its existing Emergency Management and Civil Protection Act to its new Reopening Ontario (A Flexible Response to COVID-19) Act, the Ford government was “able to eliminate even the vestiges of legislative democracy in order to benefit from the processes of executive authority,” maintains Patricia Hughes, executive director of the Law Commission of Ontario.
In other words, the Reopening Ontario Act allowed the government to extend and retain the bulk of its extraordinary powers obtained through the declaration of an emergency under the EMCPA. The Reopening Ontario Act allowed the government to sidestep ordinary legislative procedures in enacting extraordinary orders that restrict civil liberties. The new law also empowered the government to override certain key provisions of various collective union agreements, including especially for nurses and health care professionals, and to regulate businesses. As the founding executive director of the Law Commission of Ontario and former dean of law at the University of Calgary, Patricia Hughes noted, “By shifting from the EMCPA to the more positive and optimistic Reopening of Ontario Act, [the Ford government] is able to eliminate even the vestiges of legislative democracy in order to benefit from the processes of executive authority.”
In effect, the Ford government cleverly extended its own ability to make COVID-19 health orders without the need for the review processes originally set out by the EMCPA and repackaged this extension of executive authority in Ontario as an end to the COVID-19 emergency and a plan to reopen the province.
The politics surrounding the Reopening Ontario Act illustrate the general trend of federal and provincial governments’ concentration of discretionary power to the executive branch – both the executive cabinets and the bureaucrats – to the detriment of legislative bodies and the electorate. Any opposition to the government’s concentration of power was swiftly swept under the rug, and COVID-19 orders continued to be made without crucial legislative oversight before the beginning of the COVID-19 pandemic.
Another example of provincial governments widening the scope of the executive authority was Alberta’s Bill 10, Public Health (Emergency Powers) Amendment Act. Bill 10 was introduced, passed, and came into force at the lightning-fast speed of only forty-eight hours in April 2020. Only 21 out of 87, members of Alberta’s legislative assembly were present to vote on the bill, just enough to pass quorum. Bill 10’s emergency powers included two key amendments to the Public Health Act – sections 52.1(2)(b) and 52.21(2)(b) – both of which authorized government cabinet ministers to unilaterally create new laws and sidestep the legislature when doing so.
The amendments made under Bill 10 in Alberta did not just grant amazing powers to the minister to make new law unilaterally, it also granted the power to make law retroactively: it punished citizens’ past behaviours for failing to comply with the new law, even though they were not illegal at the time. This flies in the face of rule-of-law principles that attempt to make the law stable, predictable, and prospective rather than retroactive. The Government of Alberta would eventually walk these changes back in the following year with Bill 66, also amending the Public Health Act.
It became apparent early on that governments would be zig-zagging away from ordinary procedures for devising laws in response to the pandemic. Indeed, to some extent we should be sympathetic to this impulse: fast-moving emergencies require nimble responses. It was appropriate for the government to swiftly ensure that the Canada Emergency Response Benefit (CERB) would be available to Canadians to make sure nobody went without food or shelter in exchange for the government requiring them to stay home and, in many cases, not work.
However, this principle of prioritizing expediency above due process went completely haywire during the pandemic, with almost no scrutiny of due proportionality between the gravity of the emergency and its impact on individual rights. We should be vigilant to ensure that in future public health emergencies governments may not cut corners without consequences.
Joanna Baron has been executive director of the Canadian Constitution Foundation since 2019, and prior to that practised criminal law with the late Edward L. Greenspan. Christine Van Geyn is litigation director of the Canadian Constitution Foundation. This is their first book together.
Source of main image: Shutterstock.