By: David Côté
Whether it be non-essential business closures, vaccine passports, social gathering limits, or otherwise, COVID-19 policy and civil liberties have become intertwined. Now two years into the pandemic, people are increasingly wondering when and why certain government actions are justified. A basic understanding of the Canadian Charter of Rights and Freedoms (“Charter”) is necessary for policy-minded folks. This explainer offers an overview of the relationship between COVID-19 policy and three pertinent Charter rights. In doing so, I will use some legalese to get as close as possible to how courts will be thinking about these issues, so bear with me.
The Charter is enshrined in the Constitution Act, 1982 and protects the rights and freedoms of Canadians, subject to limits. When someone challenges a given policy, a court will work through two basic steps. First, they will consider whether a policy infringes a Charter right. Second, if an infringement is proved, the court will consider whether it is justified. If the infringement is not justified, then the policy will cease to have force or effect. If the infringement is justified, the policy will stand – meaning that Charter rights are not absolute.
The most commonly discussed Charter right with respect to COVID-19 is section 7, which states, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The potential application of this provision is broad, ranging from policies that govern medical decision-making to those that prevent individuals from working. For example, the vaccine passports implemented in various provinces, Quebec’s health contribution tax for the unvaccinated, or stay-at-home orders may all be implicated. Legally speaking, section 7 involves a two-part analysis. First, the court will consider if there is a deprivation of life, liberty, or security of the person. The right to life is engaged when a policy imposes a risk of death on a person, the right to liberty is engaged when a policy interferes with one’s ability to make fundamental personal choices, and the right to security of the person is engaged when a policy interferes with one’s physical or psychological integrity. Second, the court will consider if the deprivation is in accordance with the principles of fundamental justice. In the context of COVID-19, this likely means the court will consider whether the policy is arbitrary, overbroad or grossly disproportionate to its effects.
Another important category of Charter rights in the context of the pandemic is equality rights. Section 15(1) states, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Section 15 is particularly relevant because it recognizes discrimination based on the impact of a policy. So, section 15 is relevant for any government action that produces disparate outcomes amongst different groups, even if the policy does not intentionally discriminate. For instance, if a lockdown produces unequal economic effects for a minority group, then section 15 may be engaged. As with section 7, section 15 involves a two-part legal analysis. First, the court will consider if the policy creates a distinction based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability, or an analogous ground. Second, the court will ask if the distinction imposes a burden or denies a benefit that reinforces/perpetuates/exacerbates disadvantage.
A third salient category of rights, especially coming out of the holiday season, is mobility rights. Section 6(1) states, “Every citizen of Canada has the right to enter, remain in and leave Canada.” Section 6(2) states, “Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right: (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province.” Relevant policies include the federally implemented COVID-19 testing requirements before returning to Canada and interprovincial/international travel bans. Aside from a couple of cases, the relevant case law is sparse and it is quite unclear how section 6 rights would be interpreted in this context. The best one can do for now is assume that Section 6(1) and 6(2)(a) inquiries would, quite literally, ask whether a policy interferes with a Canadian citizen’s ability to enter, remain in, and leave the country, or to take up residence in any province, respectively. However, analyses of section 6(2)(b) are a bit clearer. First, the court will ask if the policy differentially treats residents and non-residents of a province or territory in the pursuit of their livelihood. Second, the court will consider if the distinction primarily discriminates on the basis of province/territory.
Irrespective of the above, section 1 is the real test of any COVID-19 policy. Even if one can show an infringement of a Charter right, demonstrating that it is unjustified is a whole other beast. Section 1 states, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section 1 analyses have four steps. First, the court will ask whether the objective of the policy is pressing and substantial. Second, the court will look to whether there is a rational connection between the policy and its objective. Third, the court will consider if the policy is no more infringing on the right than necessary. Fourth, the court will assess whether the benefits of the policy are proportionate to its deleterious effects. Only when all four of these steps are satisfied, will an infringement be justified. As the reader has likely gathered, the debates surrounding how the above principles will be applied can go either way. In the end, only time will tell.
David Côté is a Master of Public Policy and Juris Doctor candidate at the University of Toronto’s Munk School of Global Affairs of Public Policy and Faculty of Law. His interests include justice, the intersection of law and policy, and more broadly, policy efficacy and how evidence informs policy decisions. David is also a legal researcher at the David Asper Centre for Constitutional Rights and a Senior Associate Editor for the University of Toronto Faculty of Law Review. David holds a Bachelor of Sciences (Honours) in Life Sciences from Queen’s University.