Stronger COVID-19 restrictions do not flout Charter, experts say
Legal experts say Premier Jason Kenney's suggestion that enacting a full lockdown to stop the spread of COVID-19 would violate Albertans' Charter rights doesn't reflect the law.
On Tuesday, Kenney declared a state of public health emergency and announced new restrictions, including outlawing social gatherings and moving students in Grades 7 to 12 to online learning next week.
Kenney said his UCP government resisted calls from doctors and health experts for a lockdown because it would “be an unprecedented violation of fundamental constitutionally protected rights and freedoms.”
“Since when should governments start with an impairment of fundamental charter-protected rights and freedoms rather than engage in such an impairment as a last and final resort?”
Eric Adams, professor of law and constitutional expert at the University of Alberta, said Kenney's comments seemed to inaccurately suggest the premier's hands were tied by the Canadian Charter of Rights and Freedoms.
Section 1 — the reasonable limits clause — says the government has the authority to limit rights and freedoms if it is “demonstrably justified.”
Adams said there is no hard line on what constitutes the most minimal restriction on rights and that the courts have given governments considerable leeway to try to meet important public policy objectives.
In the context of COVID-19, he expects them to extend even wider authority to governments in an effort to prevent the virus' spread and to save lives.
“It's a pandemic. People are dying. There's no clear formula of what level of restrictions will combat this disease most effectively and ( be) balanced against other health-care concerns and business and economic concerns,” said Adams.
Avnish Nanda, a lawyer who teaches constitutional law at the University of Alberta, said Kenney's claims appeared to be “political bluster” and that Section 1 means the government can impose whatever laws it can demonstrate are necessary to protect the broader public interest.
“Every other government in this country has managed to put these (pandemic) restrictions in place without a court striking them down,” said Nanda, adding the charter does not recognize economic rights — including the ability to operate a business.
Kenney said Tuesday that the one-third capacity on religious gatherings balanced the charter-protected right to freedom of religion with public health imperatives.
Adams pointed out that a law declaring that you can no longer practise your religion in the province of Alberta is much different than one saying a religious group cannot gather for a ceremony in large numbers.
“That's an infringement of their freedom of religion, too, but it's not to the same degree or extent,” he said.
One civil liberties advocate said the measures go too far.
Jay Cameron, litigation manager at the Justice Centre for Constitutional Freedoms (JCCF), said in an emailed statement current COVID-19 testing is not a lawful basis for stripping people of their civil liberties.
“State measures to prevent people from gathering for worship and praise in the practise of their religion is a severe infringement of (the freedom of conscience and religion), and it is our view it is entirely unjustified,” said Cameron.