The past few weeks have involved unprecedented changes to our lives. School is out, many of us are working remotely, and we are encouraged or required to stay home. Each day seems to bring new measures to try to limit the spread of the novel coronavirus. For instance, at a press conference on March 28, 2020 Prime Minister Justin Trudeau announced that the federal government is banning domestic air travel and inter-city train travel for people presenting with symptoms of COVID-19, effective March 30, 2020.
With such significant powers being exercised by all levels of government, it’s important to consider the constitutional implications. In Canada, the main source of our constitutional rights is the Charter of Rights and Freedoms. It doesn’t take a lengthy review of the Charter to realize that a number of rights are potentially implicated. Section 2 guarantees various fundamental freedoms, including freedom of speech, religion, peaceful assembly, and association. Section 6 guarantees mobility rights – every Canadian citizen has the right to enter, remain in and leave Canada, and to move to and take up residence in any province. Section 7 protects our right to life, liberty, and security of the person. There are also specific constitutional protections for those charged with criminal offences, including the right to be tried within a reasonable time.
Although the Charter protects our rights, it also allows for governments to limit them. Section 1 states that the rights and freedoms set out in the Charter are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The rarely invoked notwithstanding clause in section 33 allows governments to declare that legislation applies despite certain rights guaranteed in the Charter.
Courts in Ontario are presently open, but access is limited to only the most urgent matters, which is defined to include urgent requests for injunctions, appeals, and judicial reviews related to COVID-19. Ultimately, if/when any of the measures implemented by the government are challenged, most of the focus will be on whether the government can prove the limits imposed on Charter rights were demonstrably justified in a free and democratic society. It will be interesting to see how the courts respond to these unprecedented and ongoing changes to our way of life.