Charter rights subject to ‘reasonable limits’
Fox was a teen in university when the War Measures Act was imposed during the October Crisis in 1970. He recalls being at a small townhome party that was interrupted by police. At the time, Fox questioned how police were able to simply walk in, but he now knows the War Measures Act probably meant they could.
“It drove home to me how you put something like that in place and, man, the individual rights are gone, and how easily it can be abused as well,” he says. “It’s pretty draconian-type legislation. I think all our governments today recognize that it has to be a situation where national security is really at stake, and that’s what we’re talking about here.”
John Whyte, formerly with the Saskatchewan Institute of Public Policy and a professor of constitutional law, says war measures or emergency measures acts do take precedence and can supersede certain civil rights. But he adds human rights should largely remain intact.
“It’s a very sweeping power, but it probably doesn’t in itself eradicate the Charter,” he says.
But Whyte adds the Charter also says the rights contained within are subject to “reasonable limits” within a free and democratic society — limits that can be shortened in situations like war or pandemic.
While not a Charter right, per se, the right to privacy has become enshrined in various pieces of legislation.
Whyte says while health authorities have shown, even during the pandemic, they want to maintain patient privacy, there is nothing absolute about that under current circumstances.
“I mean, if people who have been diagnosed or even who are presumptive then act irresponsibly, (authorities) won’t think twice about trying to control them, even if it involves public disclosure,” he says.
Reasonable limits on Charter protections exist all the time, whether or not the country is in crisis. Whyte says context drives each test.
For instance, while accused persons typically have a right to know details of the case against them, those rights can be curtailed when the accused person is suspected of terrorist activity and disclosure would mean revealing details of Canada’s network of information or informants.
Whyte says while emergency measures pertaining to, for instance, foreign invasions might affect pockets of individuals within the country, this situation is altogether different.
“This is so incredibly social-wide,” he says. “It touches into people’s very private choices about their health, their eating, their religions, their associations and their family relationships ... There’s a lot the Charter is concerned with around self-determination and freedom of association and freedom of one’s own destiny which are at stake here. But none of them are actually going to really get to court or be upheld against the pandemic protection regime.”
While many people appreciate the need to forego their usual rights to go where they want and see who they want, not everyone can, or will, follow emergency measures. People on society’s fringes, such as those with mental health issues or severe addictions, might find self-isolating extremely difficult or even impossible.
Fox says we might need to take a realistic approach to dealing with people who aren’t in the same position to follow emergency measures provisions.
“You are going to have to put some systems in place for the people who are going to have a very, very hard time complying with that,” he says.
But he adds for anyone capable of conscious decision, they are subject to penalty when choosing to flout the rules.
If someone else is infected as a result, he says it isn’t inconceivable criminal charges could result, as is being discussed in some parts of the world.
“This is a world war we’re fighting, and if I’m knowledgeable and everything else and breach it, I’m going to have to be held accountable,” Fox says.