T

he civil liberties debate about the response to COVID-19 has been muted compared to our debates about the anti-terrorism laws enacted in response to the September 11 terrorist attacks and after the 2014 terrorist attack on Parliament Hill. When one looks to the politicized opposition to lockdowns and even masks in the United States, the fact that the Canadian civil liberties dog has barked softly may seem like a good thing. This essay will examine why our critiques have been largely silent and why this may not be a good thing in terms of Canada’s response to the pandemic.

The Diffuse and Illusive Nature of Pandemic Law

One reason why the civil libertarian challenge has been muted is that it cannot focus on one central piece of federal legislation such as the terrorism laws that Parliament enacted in 2001 and 2015. 

Instead, the COVID-19 crisis has been regulated by a bewildering number of municipal, provincial and federal laws and regulations. A number of groups and individuals have made valiant attempts to keep tabs on these laws and regulations. There are also “tracking” websites that demonstrate how more than 80 countries have used emergency laws and more than 30 countries have responded to the current pandemic with laws limiting freedom of expression and privacy.

For example, Cambodia and Egypt have enacted particularly repressive laws augmenting military and executive powers. Hungary has banned elections and allowed government by decree, and both Russia and the Philippines have enacted a new “false news” offence.

Nevertheless, the domestic and international civil libertarian critique is hampered by the fact that the public is often confused about the precise and frequently changing nature of COVID-19-related regulations.

The lack of a central framework of laws makes political debate about whether the law goes too far or not far enough difficult. It also makes it difficult for people to know what they can and cannot do. This uncertainty can lead to needless confrontations with authorities. You cannot criticize and challenge laws you do not know about.

The lack of a central framework of laws makes political debate about whether the law goes too far or not far enough difficult.

It is a basic element of the rule of law that the law should be accessible to all. The law should not have retroactive effect. In the case of Alberta, its main response was retroactive in the sense that it attempted to legalize state actions that were taken before the law was enacted.

A related element is that it should be possible to obey the law. It may not be possible for people living in overcrowded homes and confronting food and other economic insecurities to obey strict forms of lockdown regulations.

Pandemics also affirm that security policy makers need to think more about federalism, including the important role of municipal governments. Cities such as Montreal, Toronto and New York have been on the front line of the battle against COVID-19. They have also been on the front line in concerns about terrorism.

In one of its two recent reports on Canadian responses, the Canadian Civil Liberties Association (CCLA) documented that Quebec has been far more punitive than other provinces and accounts for more than three-quarters of the $13 million in fines that have already been levied against Canadians for breaking a wide range of pandemic regulations.

This suggests that a more punitive approach may not always be the most effective. In any event, federalism provides a natural laboratory to study the effects of variations in national security policies and enforcement.

Permanent Emergencies?

Much of the Canadian response has been under provincial emergency laws. This approach differs from much of the legislative response to September 11 that was enacted with permanent laws with only a few long sunsets. This allows us to test whether emergency laws become permanent.

There are real concerns about subsequent waves of the pandemic. The danger will likely remain until a safe vaccine can be widely distributed. Even when and if this happens, there are likely to be more pandemics. This raises questions about whether people will become more accepting of limits on their liberty and privacy. House arrests, travel bans, border closings, restrictions on public gatherings and electronic tracking may not seem so bad, now that we have all experienced them.

The history of counterterrorism suggests that once the state uses powers to respond to a national security threat, it may use similar powers to respond to other concerns.

Ignoring Equality in the Liberty-Security Balance Again

Societies made a critical mistake after September 11 in conceiving national security as a balance between safety and liberty. To be sure, national security threats do affect this balance, but they also affect equality. Any idea that we are trading one group’s liberty for another group’s safety or sense of security will taint the legitimacy of security efforts.

Equality is a critical concern in our response to the pandemics. Both Indigenous and Black people are overrepresented among prisoners, a population vulnerable to COVID-19. There have been more than 100 reported cases about COVID-19 and prisons, many of them raising arguments that detention would violate prisoners’ Charter rights. Almost all of these cases, however, deal with individual matters such as granting bail. There has been even more emergency litigation in the United States, some of which has obtained class-based relief for prisoners with pre-existing vulnerabilities to COVID-19.  

Racialized groups seem to have been disproportionately affected both by COVID-19 and by police enforcement of physical distancing laws. These laws will be affected by systemic discrimination in their enforcement. Physical distancing measures have disproportionate effects on those who live in crowded homes or have no homes at all.

Authorities obtained an injunction to displace a homeless encampment in Vancouver to enforce a COVID-19-related ministerial order. This was done despite evidence that the majority of Vancouver’s homeless are Indigenous peoples. A coalition of Indigenous, Black and HIV-positive groups and the CCLA had to commence legal action against the City of Toronto before it implemented physical distancing at its homeless shelters.

Punishment even for non-criminal offences will also have disproportionate impacts. In Ontario, the average ticket for not engaging in physical distancing is $880. This is a significant amount, and non-payment may have collateral harms such as difficulties in renewing a driver’s licence. Fifteen people in one Quebec Cree community were given $1,000 tickets for a home gathering.

A complicating factor is that there is some evidence that COVID-19 is causing disproportionate deaths among racialized minorities as well as senior citizens in care homes. Asian people report hate crimes or a fear thereof. This situation raises familiar problems of over- and under-policing vulnerable groups. It also raises questions of whether the police are again being asked to do tasks that would be achieved more effectively and less coercively by others, such as public health officials.

Senior citizens in care homes have, by far, paid the greatest price in this pandemic. This raises troubling equality concerns about the value placed on their lives and their quality of life and our underregulation of these homes. It also suggests that ensuring a living wage for care workers can also have security benefits. To be sure, there are dangers such as those associated with countering violent extremism in securitizing all of our social interactions. At the same time, however, valid links can sometimes be made between social justice and anti-discrimination and increasing security.

Privacy

Some governments have enacted regulations that allow the release of health information. This raises concerns about the adequacy of privacy laws and safeguards. How long will the electronic footprint of such data last? How do we know with whom it is shared? Privacy watchdogs often have inadequate powers and they will be starved for funds as we come out of the COVID-19 crisis.

Some laws that diminish privacy might survive Charter challenges because, on paper, they are limited to valid health concerns. But this begs the difficult question about how these laws will be applied in practice.

Ontario’s law allowing emergency responders access to a list of those who have tested positive for COVID-19 should not, however, survive Charter challenge because there is no rational connection between legitimate health concerns and an out-of-date list that includes those who are no longer infectious.

Those who criticize civil liberties for stressing the rights of individuals over the collective are often wrong. Proportionality analysis is central to human rights analysis and it is concerned with the efficacy of laws in advancing security objectives as well as their effects on rights.

The Private Sector

Civil liberties are concerned with efficacy but they need to adjust to the fact that today’s threats to our rights often come from the private sector. Corporations harvest our data for profit and it is difficult to think they will not take advantage of COVID-19. The fact that Apple, Google and BlackBerry are helping the Ontario and federal governments to develop and market an app to track and notify people who have been near those who are infected with COVID-19 will produce different reactions in different people. Some may trust technology to protect privacy; others may not.

Both civil libertarians and those who study and practise national security need to devote more time to the private sector. Twitter, Facebook and Google are now far more important censors than the state. These companies have their own private security laws that are influenced by the laws and attitudes of their American headquarters. Security officials need to think more about how they interact with the private sector. Civil libertarians need to think more about how they influence corporate policies that affect rights.

Civil Liberties and Cultural and Political Wars

As the American debate about lockdowns and wearing masks well illustrates, civil liberties concerns about security efforts are subject to political and cultural polarization and manipulation. To be sure, there may be inconsistencies. Those who opposed lockdowns may often support other security efforts, such as border closings and vice versa. There is a danger that national security issues will be politicized and reduced to slogans. Fortunately, Canada seems to have resisted this tendency in the COVID-19 crisis, but we are not immune to this disease.

National security debates will be influenced by our attitudes toward expertise. In Canada, with the exception of some egregious racist smears against Dr. Theresa Tam, our chief public health officer, we have accepted public health expertise. Indeed, medical doctors are likely more trusted than intelligence and policing professionals. It will, however, be increasingly important that security professionals are impartial and avoid attempts to be conscripted into our political and cultural wars. They will also have to earn public trust by being as transparent as possible.

A counterterrorism analogy to the daily briefings on COVID-19 may have been the press conference held on June 3, 2006, after the arrest of the Toronto 18. The press conference by the Canadian Security Intelligence Service and policing officials was much more controversial because it led to claims that it threatened the rights of those arrested to bail and to a fair trial. It may be that the public is more willing to defer to expert risk assessments conducted by medical professionals than by intelligence professionals.

There is a danger that national security issues will be politicized and reduced to slogans.

At least some of the opposition to lockdowns reflects the economic concerns of many people in service industries who have lost their jobs. In contrast, those who can continue to work at home may have fewer objections to lockdowns. This is another reminder that equality issues must be factored into discussions of the appropriate balance between safety and liberty.

Canadians should not be complacent in believing we are immune from far-right extremism. There is a danger of scapegoating certain groups as national security threats. There are concerns about hate crimes and discrimination against Asians in the COVID-19 context and against Muslims in the counterterrorism context. Such actions are morally wrong. They may also make these groups less willing to seek help from the state.

Civil Liberties as a Necessary Tool to Challenge the Proportionality of National Security Efforts and Expertise

The CCLA, in another recent report, asks important questions about the necessity and proportionality of the response to COVID-19. In particular, the association raises concerns about possible privacy effects of automated contact tracing. This is not a knee-jerk privacy response because it also considers the lack of effectiveness of contact tracing, given low take-up rates, and significant problems with both false positives and false negatives.

The CCLA has also raised cogent concerns about allowing first responders access to outdated lists of people who have tested positive. Civil liberties, at best, are not an expression of political or cultural views; rather, they are founded on evidence-based reasoning about whether limits on rights are justified by the available evidence. This is the type of citizenship and critique that we need in any national security crisis.

Canadians have accepted restrictions on international and even interprovincial travel as a reasonable limit on their mobility rights under section 6 of the Canadian Charter of Rights and Freedoms. But this begs the question of whether such restrictions were truly necessary to respond to a global pandemic compared to less drastic alternatives that asked travellers to self-quarantine.

As with all national security crises, there is a need to have a lessons-learned accounting of the degree to which we have overreacted and underreacted. This must be done in real time, especially given the persistence of the pandemic.

Civil liberties concerns may be a thorn in the sides of security experts, whether in public health or intelligence. The uncomfortable questions about whether the measures taken to protect us are truly necessary and effective are, however, necessary in a free and democratic society. These questions can also improve our security policy making.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.
  • Kent Roach is professor of law and the Prichard-Wilson Chair of Law and Public Policy at the University of Toronto Faculty of Law.