Justice dismantled as restrictions placed on court systems

As a lawyer who works each day to protect individuals’ fundamental freedoms from government encroachment, it seems surreal to watch governments around the world grant themselves emergency powers, direct a global shutdown of the economy, and curtail the freedom of citizens to assemble in large numbers—or sometimes to even leave their homes at all.

Events have been unfolding almost too quickly to fully process the implications, but it appears likely that restrictions are only going to intensify in the days and weeks ahead.

At the time of writing, the Trudeau government has not yet triggered the Emergencies Act but is said to be contemplating it. That decision may depend on whether Canadians are doing as we are told to prevent the spread of COVID-19. If not, expect that increasingly restrictive measures, accompanied by threats of fines or imprisonment, will be imposed.

In Ontario, Premier Doug Ford declared on March 17 that the province would use its emergency powers legislation to shut down non-essential businesses and prohibit public gatherings of 50 or more people. The provincial government in Newfoundland has taken that step too, and others will soon follow.

So what do these powers entail? Under the federal and provincial legislation, emergency powers generally include the ability to restrict movement, shut down businesses, impose travel bans, control the distribution of essential goods and services, and establish emergency hospitals. Private property may be commandeered as needed, perhaps for ensuring isolation of infected individuals. Should that happen, reasonable compensation must be provided by the government.

These emergency powers are time-limited, but may be extended as the government deems necessary, subject to judicial oversight. To facilitate quick actions, governments are able to make more use of orders in council (cabinet decisions) rather than going to the Legislature. The most significant purpose of federal and provincial emergencies legislation is allowing governments to spend significant amounts of money outside of the approved budget.

Our laws contemplate that sometimes governments must make orders that infringe our rights so as to meet an external threat. The Canadian Charter of Rights and Freedoms and the rule of law still apply, but courts will give government more latitude than usual. As long as government actions are not arbitrary, such as targeting one group over another, courts will likely uphold them as reasonable and demonstrably justified.

While emergency measures and quarantines are meant to be temporary, there is no question that they deny freedom. This may soon feel very oppressive, particularly if the crisis is measured in months, not weeks, as some experts predict.

We have a right to expect that Draconian measures are based on sound reason and science, and are imposed in the least restrictive manner possible, for the shortest duration possible. At some point, the costs of the deprivation of liberty and the shutdown of the economy could outweigh the benefits of these measures, even when viewed through the lens of saving lives.

Protracted periods of isolation and an inability to work or operate businesses, coupled with severe financial losses or dysfunctional family situations, may lead to a decline in mental health and increased suicides. For society, the shutdown could lead to an economic depression, and even civil strife. Indeed, the cure may end up being worse than the disease, if the government forces public health measures to go on longer than absolutely necessary.

If the restrictions remain short-lived, it is unlikely they would be successfully challenged in the courts. If they persist beyond what is reasonable, then the checks and balances of our court system should be engaged.

It is unsettling that some of our courts have essentially ceased operations, without facilitating video-conferencing or other “no contact” methods that could allow courts to continue dispensing justice. The shut-down of our courts will have to be temporary, and technology will need to be utilized to ensure access for constitutional challenges and judicial review, among other pressing matters, should governments prolong their emergency powers or infringe our liberties unjustifiably.

Some commentators are looking to China as a model of how to get the virus under control. China is an authoritarian state, with a compliant citizenry accustomed to harsh punishment for stepping out of line, and unburdened by notions of individual liberties. It is not easy to replicate China’s reported success without also trampling excessively on human rights.

China has also readily adopted cyber-monitoring of the movement of its people, and now even democratic Israel has moved to use cybertechnology to monitor its citizens who are supposed to be self-isolating. While it may be appealing to limit the spread of COVID-19 by any means necessary, there will be temptation to utilize technology like this against citizens when the crisis is over, and we should not be too eager to adopt it.

The more dependent we become on government in times of crisis, the more likely we are to accept erosions of our freedom, so we must remain vigilant. For now, it appears reasonable to follow medical recommendations to self-isolate, and to set aside our personal desires in favour of working together to beat this virus – otherwise, we can expect governments to force our compliance. Freedom selfishly exercised today may be freedom unwillingly lost tomorrow.

Freedom belongs to us – it is not bestowed on us by government. We relinquish it carefully and willingly on those exceedingly rare occasions when needs must. But we should have every expectation and desire to see a return of that freedom, uneroded, when the immediate crisis has passed.