Are lockdowns unconstitutional? Ontario constitutional lawyer answers your lockdown questions

Jurisdictions across the world are reimposing lockdowns to “curve the spread” of the second wave of COVID-19. In Canada, Manitoba and Nunavut have already reimposed full lockdowns and some doctors are pushing for other provinces to follow suit.

Ontario Premier Doug Ford has also reimposed a full lockdown in Toronto and Peel region, after spending the week warning he would do so. The new lockdowns in Ontario means that "non-essential" stores, gyms, and restauranrs being once again forced to shut down. The government has also completely banned private indoor gatherings in the two affected regions. Many questions have arised about the legality of these lockdowns and if they are constitutional.

The Post Millennial reached out to Lisa Bildy, a lawyer for the Justice Centre for Constitutional Freedom who plans to challenge the new lockdown imposed by the Ontario government in court. We asked Bildy, who believes that governments always need boundaries, commonly asked legal questions about government imposed lockdowns.

How are COVID-19 lockdowns imposed by provincial governments unconstitutional?

“The Canadian Charter of Rights and Freedoms guarantees citizens the right to worship, assemble, travel, move and associate as they see fit. The Charter requires that any violation of those rights by the state must be 'demonstrably justified' in a free and democratic society. The burden of proof is on the government to show that the measures it is taking do more good than harm, and are a minimal impairment of those rights.

“Even back in the spring, when lockdowns were first initiated, the modelling that was done suggested that the threat was far greater than it actually was. All provinces did better than the best-case scenarios, even then. Now, death rates are even lower and the data shows that for the vast majority of the population, other than the very elderly and the already very sick, this virus is not a significant threat to life or health. Given all the data we now have about this virus, ongoing lockdowns are likely no longer demonstrably justifiable and are therefore unconstitutional.

“Further, in some provinces the health orders are being imposed unilaterally, without legislative oversight, by unelected officials who have essentially no limits on their authority. This is unconstitutional because law-making power is bestowed on legislatures, not individuals. The broad shutdown of society by one individual, like a chief medical officer, violates the requirement that laws be democratically implemented.”

Do governments have the right to override the charter of rights and freedoms through declaring a state of emergency? and is there a limit to how long a state of emergency can last?

“Declaring a state of emergency may signal that the government believes the violation of citizens Charter-guaranteed freedoms are justified, but the onus is still on the government, if challenged in court, to prove that the measures they are taking are justified, and are being properly balanced against the harms caused by such measures. Whether they are taken to court or not, the government should be doing this analysis before taking steps to curtail peoples' normally-legal activities, or shutting down their livelihoods.”

“Although a state of emergency was declared in the spring, the Ford government brought in Bill 195 (the Reopening Ontario Act) in July to end the formal emergency declaration, but keep the power to restrict peoples' rights as though there were an emergency. They have granted themselves this power to continually extend or amend orders limiting gatherings and restricting businesses for up to a year, without having to go back to the legislature for debate and review.”

Are potential penalties imposed by the government for religious people that defy restrictions and worship with their congregations during the lockdown guaranteed to be overruled in court?

“Nothing is guaranteed, but any restrictions that single out places of worship or religious groups would likely be found to be unconstitutional because they disproportionately target specific groups/religions. Unreasonable government interference with certain religious practices might also be overruled, but this hasn't really been put to the test in the courts in Canada during the pandemic. In both of the religious freedom cases that the Justice Centre started or threatened in the spring, the Ford government backed down and amended its orders to be less restrictive, so the cases didn't get into court.”

Would Provincial governments be allowed to strictly limit people’s movements, like what France is doing with their lockdown?

“Governments can make laws that limit peoples' freedoms in all sorts of ways, some of which could be quite draconian. If there is no sound evidentiary basis for it, and the Justice Centre strongly takes the view that there is not, then such laws should be immediately challenged in the courts and the government should be expected to prove that its laws are not unconstitutional.”

Are you confident that a judge would make a ruling against lockdowns? and why?

“To the extent that there have been rulings so far, and there have only been a few, the courts were inclined to grant the governments in this country wide latitude to handle this virus. This was when little was known about the virus, and the courts themselves had largely voluntarily closed down, except for urgent cases. That is no longer the case. Ultimately, governments know they have to justify their actions in the courts, and if they go too far, we will certainly force them to do that.”

If a provincial lockdown is struck down by the courts, could premiers use the “notwithstanding clause” to keep it in place?

“While governments could do so, it would be politically foolish to try it. They would look like complete tyrants if they attempted another widespread curtailment of civil liberties over a virus that has such a low fatality rate, and then prevented any access to the courts to make them justify it.”

With Canada going through its second wave of COVID-19 and seeing grim projections, what are some constitutional ways to “flatten the curve” that governments could put in place instead of lockdowns?

“First of all, these projections must be taken with a grain of salt, given how vastly overstated they have been all along, and given the extreme limitations of the PCR tests being used to generate case numbers. Even Associate Chief Medical Officer of Health, Dr. Barbara Yaffe, has stated that such tests present false-positives at least 50 percent of the time when testing large populations without COVID.”

Ontario residents should be treated like the adults living in a free society that they are, and should be presented with the data necessary to assess their own risk. Imagine the number of hospitals that could have been built with the funds that have been expended to keep healthy people at home and out of work. Efforts should be directed toward protecting vulnerable populations, to the extent they wish to be protected.

Bildy also cited the fact that Ontario has a population of 14.4 million people, and an average 115,000 deaths per year. So far in Ontario, over 3400 people have died from COVID -19. However, Canada also saw an alarming 111,600 deaths caused by drug overdoses, cancelled surgeries, delayed cancer diagnoses and other conditions worsened by the negative impacts of lockdowns.

On the claim from doctors that hospitals are on the verge of overcapacity, Bildy says that COVID-19 patients are using less than 2% of Ontario’s hospital beds and less than 2% of ICU capacity, and that COVID-19 deaths make up less than 3% of total deaths. She added that “Premier Ford calls it a crisis that justifies lockdowns.”