National Post (National Edition)
Quebec judge strikes back against attack on freedom
Politicians around the world have mounted many terrible arguments for and against various pandemic-related countermeasures over the past 10 months. But Quebec Premier François Legault's justification for having police round people up for the crime of sleeping rough after the province's 8 p.m. curfew still manages to stand out.
If homeless Quebecers were exempt from enforcement, he told reporters on Jan. 19, there is a “risk that people would use this pretext to wander around in the streets.”
People would pretend to be homeless in order to go for a walk.
Where do you even start with an argument that unhinged?
A layperson might venture that if someone is willing to go to extraordinary measures to take a walk, then the easiest and kindest thing would be to let them do it. Going for a walk, certainly alone or with a member of your own household, is at worst a manifestly harmless act, no matter what the time of day. In some households, it could be a lifesaver.
A lawyer would likely come at it from a different direction, and some lawyers did. Bruce Johnston, André Lespérance and Lex Gill, on behalf of Montreal's Mobile Legal Clinic, sought an injunction quashing the curfew's jurisdiction over homeless people. They argued it violated various very basic rights and freedoms, and on Tuesday Quebec Superior Court Justice Chantal Masse agreed.
The rule violated “the right to life, liberty and security protected by the Canadian and Quebec charters (of rights and freedoms),” Masse wrote. “For objective reasons,” she trenchantly noted, many homeless Montrealers fear contracting COVID-19 in the city's shelters, “which are crowded in this winter period and have been the site of outbreaks.”
Homeless people are likely to hide from curfew-enforcing police, and thereby be placed at greater risk of terrible injury or death, she argued — and for no goddamn good reason, I might add.
Indeed, rights and freedoms aside, forcefully rounding up people sleeping in Montreal's bleak nighttime winterscape and shutting them up in warm shelters is thunderingly moronic anti-pandemic policy. It would make far more sense to buy and distribute proper winter camping equipment to them.
If the idiocy of forced cohabitation weren't obvious to begin with, it was tragically illustrated by the death of 51-year-old Raphael André in a portable toilet on the night before the curfew kicked in, right in the affluent heart of McGill University's “student ghetto,” steps from a drop-in centre André had been staying at — but that had closed due to a recent COVID outbreak.
There is speculation he was hiding in the toilet from police seeking to “help” him. If he wasn't, it's not unreasonable to fear other people in his situation might do so, and meet similar fates.
Thanks to Justice Masse, then, itinerant Quebecers join dog owners on the list of folks who can be out after 8 p.m. That illustrates the sick absurdity of the situation rather nicely, no? Dogs with more rights than dogless humans; homeless humans with fewer rights than dogs.
It is somewhat alarming to see how many Quebecers and Ontarians support curfews should case counts make them “necessary”: 74 per cent and 62 per cent, respectively, according to Léger's latest poll for the Association for Canadian Studies. It's far more alarming when you combine those figures with continued (though thankfully dwindling) approval ratings for the respective governments' anti-pandemic efforts: 69 per cent of Quebecers are satisfied with those efforts, despite world-class death tolls; 53 per cent of Ontarians are satisfied despite death tolls that only look good by comparison.
Prophylactic curfews are correlated with success in some jurisdictions. I'm writing this column in one: the Spanish island of Tenerife, which peaked at 164 new cases per million per day on December 19, versus 1,156 per million per day in Spain as a whole on Tuesday. (Quebec peaked at 394 on January 10, Ontario at 255 the day before.)
In Quebec, however, the curfew was the furthest thing from prophylactic. It was the morning-after pill — an act of desperation when nothing else worked to keep case counts down and long-term care homes continued to transform into charnel houses overnight.
No one should accept Legault's contention that the curfew is “working,” that “the results seem to be good.”
Quebec's daily new-case rate finally started to fall concurrently with the curfew's implementation, but too soon for the curfew to have been determinative. Ontario's daily new-case rate finally started dropping on the same day, with no curfew in place. In every province to the west of Ontario, the autumn surges began ebbing weeks beforehand with no curfew in place.
Leaving the house to perform almost literally zero-risk activities is the most basic freedom we have. It cannot be surrendered with a shrug, arguing that the times make it necessary and that it will never happen again in our lifetimes. Governments don't easily lose the taste for power like that.
Quebec's war on its homeless citizens, for the crime of leaving homes they do not have, was an especially poignant and grotesque illustration of just how awful a curfew is. But it's not much less grotesque, in principle, when it comes to everyone else. History may well record Montreal's Mobile Legal Clinic, and Justice Masse, as having done a great thing for Canadians' theoretically immutable freedoms.