Abstract
Federal and provincial policy responses to the COVID-19 pandemic raise a host of constitutional issues that decision makers must pay heed to or risk serious violations of individual rights under the Charter of Rights and Freedoms. This research note will examine a number of policy challenges as they relate to mobility rights (s. 6), legal rights (ss. 7 through 14), and equality rights (s. 15) and will articulate the factors that policy makers should consider in design and implementation. Other important constitutional questions, such as those relating to the division of powers, emergency powers and the relationship between the executive and Parliament, have also emerged in Canada but are beyond the scope of this note.
Highlights
Emmett Macfarlane*Federal and provincial policy responses to the COVID-19 pandemic raise a host of constitutional issues that decision makers must pay heed to or risk serious violations of individual rights under the Charter of Rights and Freedoms
It is worth noting at the outset that from a constitutional law perspective, courts are likely to pay deference to legislative initiatives in the context of an emergency
Government policy objectives seeking to act in the interest of health and safety are rightly regarded as pressing and substantial, and any analysis of the reasonableness of limitations imposed on rights under section 1 of the Charter will begin with this consideration in mind
Summary
Federal and provincial policy responses to the COVID-19 pandemic raise a host of constitutional issues that decision makers must pay heed to or risk serious violations of individual rights under the Charter of Rights and Freedoms. Other important constitutional questions, such as those relating to the division of powers, emergency powers and the relationship between the executive and Parliament, have emerged in Canada but are beyond the scope of this note. As the analysis will show, governments necessarily operate in a grey zone as they balance freedom with health and security concerns, but it is imperative that rights considerations are part of the (rapid) policy-making process currently underway. Attention to these factors will help to mitigate restrictions on the values we hold most dear
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