COVID Impact on the Rule of Law in Canada
At various times and in various ways, FPT governments have been guilty of attending to the law as an afterthought to their government’s deliberations and then public communications during (often daily) ‘official’ briefings. That those public briefings, by First Minister, Health Minister or chief medical officer, are treated as ‘official,’ belies the problem: in 2020, we’ve gone from a nation too often governed not by laws, as required by our constitution, but by podiums.
The main problem with the diminishment of the rule of law is the disabling of our constitution. The problem with that, in turn, is the removal of the primary human rights shield against governmental overreach. As former SCC Justice and UN Human Rights Commissioner Louise Arbour put it:
In a democracy, the majority has all the tools. It has the votes. It can do what it wants. The whole point of having legal protections for human rights and civil liberties is to use the law to constrain the abuses of the majority.2
The breakdown of legal protections, therefore, removes our only constraint against fear-based emergency management during a pandemic. For example, did a Justice minister determine that mobility rights infringements were demonstrably justified at the time travel bans were decided upon, and implemented? Or did it just happen, after which the litigation response was assembled. Did a Justice ministry insert itself into the discussions regarding P/T quarantine enforcement by warrantless searches of homes, or was that presented to Cabinet as a fait accompli? It is this breakdown of legal protections that will be addressed immediately below.
Canada’s constitutions were designed (i) to divide and limit governmental powers by FPT jurisdiction (Constitution Act, 1867); and (ii) to protect human rights from those governmental powers (Constitution Act, 1982). Both constitutional purposes are being tested during COVID.
Decentralization of emergency management powers has meant that Canadians’ have received different approaches by different FPT governments. These regional differences can be significant, as found by our aforementioned report on enforcing new COVID rules, despite the fact that our human rights are expected to be universal. Besides that regional variation, public confusion arises since what’s true for one province/territory may not be true for another, even if most have access to media covering all jurisdictions. Public consumption of COVID media updates in Canada today is like following NHL scores without team uniforms. Meanwhile, the areas in which the federal government asserted jurisdiction have been limited to international borders and economic recovery; plus the management of a national contact tracing app (COVID Alert). That emergency management of this pandemic was decentralized was inevitable; that FPT coordination has been scarce is not.