COVID-19 & the Canadian Constitution

Over the past two months, the federal government, the provinces, and municipalities have exercised a variety of legal powers to respond to the COVID-19 pandemic. Not surprisingly, a large number of constitutional issues have emerged — and could soon give rise to constitutional challenges in the courts.

While physical distancing measures are beginning to generate controversy as infringements of the freedoms of assembly and association, they are only one of a long and growing number of constitutional issues, including those arising from: domestic violence; contact tracing via cellphone data; resource allocation decisions in hospitals for end-of-life care; the federal-provincial division of powers with respect to public health (including interprovincial transport and the Emergencies Act); and the delegation of legislative powers by Parliament and provincial legislatures to the executive.

In this article I provide a brief overview of the constitutional landscape in Canada, through the lens of COVID-19.

1. Lockdowns, Canadian-style

Canada vs. the United States: Provinces and municipalities across Canada have enacted a range of measures that have closed down non-essential businesses, government offices and schools, and sharply restricted the use of public property. While the media has taken to referring to these measures in aggregate as “lockdowns”, from a constitutional perspective, it is important to look at the details.

To see why, let’s quickly compare the COVID-19 measures in California and Ontario:

· In California, Governor Gavin Newsom’s Executive Order N-33–20 (19 March 2020) ordered “all individuals living in the State of California to stay home or at least their place of residency” subject to exceptions for individuals employed in “critical infrastructure sectors” (including communications, financial institutions, food and agriculture, health care, and transportation) and essential government services. Individuals can leave the house to access “necessities” such as food, prescriptions, and health care — and when they leave the house, must maintain physical distancing. This is known as a shelter-in-place order.

· In Ontario, public health is regionalized to boards of health, each of which has a Medical Officer of Health (MOH). Dr. Ellen de Villa, Toronto’s MOH, issued a “class order” on 1 April 2020 pursuant to s. 22(5.0.1) of the Health Protection and Promotion Act, to direct the following individuals to self-isolate at home for a 14-day period: persons diagnosed or showing symptoms of COVID-19, or members of the same household as one of those individuals. While the City of Toronto website states that all other individuals are “strongly directed to stay home” except for necessities (health care, prescriptions, groceries, exercise), that “directive” lacks any legal force. In addition, municipalities have enacted by-laws to impose physical distancing on public property (e.g. see Toronto’s physical distancing by-law and Mayor John Tory’s 3 April 2020 emergency order). Finally, Ontario banned public events and social gatherings of more than five people on 28 March 2020 (which explains why the highly publicized backyard birthday party in Brampton broke the law).

California’s shelter-in-place order is much more restrictive than the sum total of the various measures in Ontario, because it establishes a default rule that all residents must remain at home, subject to limited exceptions. While the Canadian Civil Liberties Association has criticized the enforcement of physical distancing restrictions on the bases that police officers have not educated or warned individuals before issuing tickets, and that the fines imposed are disproportionately high, we should not lose sight of the relative narrowness of Ontario’s approach, and how that keeps it on relatively safe constitutional terrain.

Self-isolation orders infringe a number of rights under the Canadian Charter of Rights and Freedoms, including the freedoms of religion, expression, assembly and association. However, all Charter infringements can potentially be justified under s. 1, the Charter’s limitation clause. A central issue to any potential Charter challenge would be whether the government has chosen the approach that infringes rights only to the extent necessary. The decision to not issue a blanket shelter-in-place order, and instead rely on self-isolation directed at a class of individuals based on objective criteria for a limited timeframe, would count in favour of the constitutionality of the order.

· Charter duties to protect health care workers and the vulnerable: The Charter may actually require lockdowns of some fashion. It is arguable that governments have positive Charter duties to take measures to protect those most at risk from infection: the elderly and the immunocompromised (who are at risk involuntarily), and health care workers (who are at risk because of their professional duties). A critical constitutional fact is the risk of transmission by persons who are COVID-19 positive but asymptomatic, and who may therefore be unaware that they are infected and pose a threat to others.

Under European human rights law, it has long been accepted that governments have a duty to protect individuals from threats to their life posed by natural risks or other persons under certain circumstances. European commentators have accordingly argued that shelter-in-place orders are obligatory for this reason. A parallel line of argument could be developed under the Charter. The potentially fatal nature of COVID-19 engages s. 7 of the Charter, which protects the right to life, liberty and security of the person. In R v. Bedford, the Supreme Court held that the government had acted unconstitutionally by criminally prohibiting individuals (sex workers) from engaging in conduct (solicitation). Notably, the prohibition was found to be unconstitutional because it put sex workers at greater risk of physical harm from other persons (pimps), not the state. In Dunmore v. Ontario (Attorney General), the Supreme Court held that the exclusion of an industry (agriculture) from private sector collective bargaining legislation violated employees’ freedom of association, because it breached a positive duty to extend to workers the scope of protective legislation that protected them from management, not the state. Bedford and Dunmore in combination arguably create a positive duty on the state to protect human life, even at the hands of non-state actors, at least where the state knows or ought to know of the risk.

· Domestic violence: Globally, one of the most horrific consequences of lockdowns has been a steep rise in domestic violence, because abused partners, generally women, are now forced to spend more time at home with, and are more limited in their ability to flee, their abusive partners. The risk of domestic violence is exacerbated by the economic stress created by COVID-19. The situation is so serious that it has led to public statements from the United Nations and the Government of Canada. The increased risk of domestic violence has constitutional implications under the Charter. Using Bedford (see above) as a model, if lockdowns place abused partners at greater risk of abuse, they breach s. 7. Under a s. 1 analysis, governments could more easily justify lockdowns if they adopted measures such as exemptions for victims of domestic violence, providing and/or increasing funding to emergency shelters, and providing mechanisms for abused partners fleeing domestic violence to alert authorities (e.g. at pharmacies or by texting).

2. Contact tracing and privacy

As governments chart a path out of lockdowns and to reopen the economy and public institutions, a key element will be contact tracing, which has long been an important weapon in the arsenal of public health authorities. The basic idea behind contact tracing is simple: to identify individuals who have come into contact with those who have tested positive for COVID-19, and to notify them that they may be infected and should therefore go into self-isolation.

Until recently, contact tracing has taken place manually — that is, by interviews and old-fashioned detective work. The widespread use of mobile phones offers new possibilities for contact tracing at the population level using cellphone data. South Korea and Singapore have taken this approach, and Germany is considering it. An individual downloads an app, which, through GPS or Bluetooth, tracks information about other cellphone users with whom they have been in close proximity. If the individual tests positive, notifications are sent out accordingly.

However, there is no consensus as to how any such apps should use, disclose, and retain individuals’ COVID-19 information. Nor do we know what governance mechanisms would be implemented for the contact tracing programs that such apps would enable. Practical questions abound about how such app-based programs would actually work. For example, is participation in such programs to be voluntary, mandatory, or a condition for receiving a COVID-19 test? Are data collected about persons going to be individually identifiable to government authorities, or de-identified? What types and volumes of data will be collected and shared with governments: just physical location history and COVID-19 status, or other demographic information such as age and sex? What about other potentially relevant personal information, such as the geolocations of contactless payments? What data will be shared with infected individuals’ contacts? Who else will have access to this information — paramedics, nurses and doctors, law enforcement — and under what circumstances and according to what procedures? What about employers and co-workers? How long will the information be retained? Would the data be held by the government or a newly created arms-length agency? What would the forms of legal and political oversight and accountability be?

At present, it is projected that a COVID-19 vaccine is 12 to 18 months away, so contact tracing programs based on mobile app technology may be in place for some time. Privacy groups, such as the Electronic Frontier Foundation, have raised the alarm. Canadian commentators have also urged caution. This has led to proposals, such as Pan-European Privacy-Preserving Proximity Tracing, to create digital platforms that preserve privacy while achieving the health benefits of population-level contact tracing.

If Canadian governments head in this direction, there are a number of complex legal issues they would face. Would the approach be national, led by the federal government, or would some provinces attempt to move ahead on their own, as has been suggested might happen in Alberta? Would governments attempt to invoke existing statutory powers, or would a new legislative basis be required? If the former route is taken, federal and provincial privacy legislation — such as the federal Privacy Act and Personal Information Protection and Electronic Documents Act (PIPEDA), or provincial statutes such as the Ontario Freedom of Information and Protection of Privacy Act — would apply.

If new legislation were required, it would raise a host of novel constitutional questions. The Charter does not expressly protect the right to privacy, unlike many other constitutions. The Supreme Court’s privacy jurisprudence under the Charter has largely developed in the context of the criminal legal process with respect to the right to be secure against unreasonable search or seizure. The Court has not had many opportunities to develop the right to informational privacy in the non-criminal context, unlike courts in other jurisdictions. What can be expected, though, is that differences in app design and governance will have a direct bearing on whether a contact tracing program is constitutional.

3. End-of-life decisions

In the battle against COVID-19, a major focus has been on the capacity of hospitals to admit and treat patients that require it. Provincial governments are aggressively trying to expand the necessary resources, especially intensive care unit (ICU) beds and ventilators. The goal is to avoid a situation where hospital admissions rise to the point where the demand for these items exceeds the available supply, as appears to be happening in some parts of the United States. In a worst-case scenario, it is possible this could happen in Canada — although based on current trends, it is possible that ICU admissions will prove to be lower than predicted.

Nonetheless, the Ontario government has reportedly made contingency plans to triage access to ICUs, in the form of draft “last resort guidelines”. According to news reports, the draft guidelines — the “Clinical Triage Protocol for Major Surge in COVID Pandemic” (28 March 2020) — would kick in when hospitals are operating at 200 percent capacity. The Protocol has three levels of triage: level 1 would deny life-saving treatment to patients with more than an 80 percent chance of death; level 2 would deny life-saving treatment to patients with more than a 50 percent chance of death; level 3 would deny such treatment to patients with more than a 30 percent of death. It is not clear if the guidelines have been formally approved. The Ontario government has insisted that it will not make triaging decisions on the basis of age. The draft guidelines would apply both to initial access to ventilators, as well as to decisions to withdraw life support.

Rationing access to ventilators on the basis of the likelihood of survival might breach the equality rights provision of the Charter, s. 15. Under federal and provincial human rights codes, disability has been interpreted to include medical conditions in some circumstances, and the same may apply under the Charter. If so, triaging patients on the basis of the likelihood of survival might amount to disability discrimination under the Charter. An open letter to the Ontario government advances a related argument — that “the Triage Protocol identifies particular disabilities, such as cognitive disabilities and advanced neurodegenerative diseases including Parkinson Disease, and Amyotrophic Lateral Sclerosis” — which could give rise to a claim of disability discrimination, depending on how they are used.

The chances of a successful Charter challenge to the Protocol under s. 15 are unclear. In Auton v. British Columbia, the Supreme Court rejected a Charter challenge to the failure to publicly fund a particular treatment for autistic children, on the basis that it was novel. Auton did not address access to a hospital service that is already publicly funded and is not novel. But on the other hand, Auton might also have established a political questions doctrine around the content of publicly funded health care services, sending the message that the courts will avoid being pulled into disputes over the allocation of scare health care resources under the Charter.

Withdrawing life-sustaining treatment raises different issues. Legal disputes may arise in situations where a patient is incapable, the Protocol provides that a patient may be weaned off a ventilator and the medical team wishes to do so, but the patient’s family disagrees. Until now, such disputes have arisen without the involvement of formal government policy and have been governed by the statutory and common law framework for consent to treatment and substitute decision-making. The core legal question has been whether the substitute decision-maker’s refusal to consent to the withdrawal of treatment is in the patient’s best interests, as the Ontario Court of Appeal explained in Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre. The Protocol would bring such disagreements under the Charter, and would raise a novel issue that falls outside the scope of the Supreme Court’s landmark decision in Carter v. Canada on Medical Assistance in Dying (MAID).

4. Federal-provincial division of powers

· Public health: The COVID-19 pandemic has brought to the fore the complicated relationship between federal and provincial jurisdiction over public health. On the one hand, the provinces have historically been viewed as having primary responsibility for creating public health institutions and laying down public health norms. The front-line response to COVID-19, such as closing down non-essential businesses, government offices and schools, and sharply restricting the use of public property, has been led by local and provincial public health authorities. But on the other hand, the COVID-19 pandemic originated outside Canada, is global in scope, and requires a coordinated, comprehensive international response. Moreover, an infectious disease outbreak in one province affects all the others, because of inter-provincial mobility — COVID-19 does not respect provincial borders. The international and interprovincial dimensions of public health can only be addressed by the federal government.

Intergovernmental cooperation has been central to the response to COVID-19 (for example, with respect to international procurement). However, this cooperation has not been taking place in accordance with Canada-wide public health norms about surveillance, outbreak investigations, and outbreak management, because there are no such Canada-wide public health norms at present.

In its report, Learning from SARS: Renewal of Public Health in Canada (2003), the National Advisory Committee on SARS and Public Health recommended the adoption of Canada-wide public health norms through the creation of a new legislative services agency, the Canadian Agency for Public Health. That agency would have flowed earmarked federal funds to front-line local and provincial/territorial public health agencies, in exchange for compliance with Canada-wide public health norms developed through negotiations among federal/provincial/territorial public health professionals. While Parliament adopted legislation to create the Public Health Agency of Canada, the Agency was never given this mandate.

At this stage of the crisis, federal/provincial/territorial cooperation may be working sufficiently well that this underlying structural issue need not be addressed at present. However, it is worth considering two options for creating Canada-wide public health norms.

· Emergencies Act: The COVID-19 pandemic meets the definition of a “public welfare emergency” under s. 5 of the federal Emergencies Act. Pursuant to s. 8(1), the Governor-in-Council could issue regulations setting out Canada-wide public health norms that would bind health care institutions and professionals. However, the Emergencies Act suffers from three main shortcomings: (a) declarations of public welfare emergencies expire at the end of 90 days unless they are continued by a positive vote of both houses of Parliament; (b) orders and regulations under s. 8(1) must be “temporary” and cannot create public health norms that outlast the emergency, which is meant to eventually come to an end; and (c) Canada-wide public health norms would be seen as a federal takeover of provincial and territorial public health systems, which could give rise to intergovernmental tensions and create difficulties of implementation, especially if there are no accompanying federal transfers to provincial and territorial authorities. In addition, unilateral actions might run afoul of s. 8(3)(a), which provides that the G-in-C’s power shall not be exercised or performed to “unduly impair the ability of any province to make measures, under an Act of the legislature of the province, for dealing with an emergency in the province” and “with the view of achieving, to the extent possible, concerted action with each province with respect to which the power, duty or function is exercised or performed”.

· New federal legislation: The federal government could propose legislation that vests the Public Health Agency of Canada with the power to establish Canada-wide public health norms, and which would be based on the following principles: (a) the legislation would apply in a province unless the Agency were to determine that the provincial public health norms were substantially similar to Canada-wide public health norms (the “backstop”); and (b) the federal government would provide earmarked funding to provinces to ensure the effective implementation of Canada-wide public health norms, whether the backstop applies or not. “Backstops” are currently in use in the Greenhouse Gas Pollution Pricing Act, PIPEDA, the Tobacco and Vaping Products Act, and the Canadian Environmental Protection Act. The backstop, coupled with funding, provides provincial and territorial public health authorities with the incentive to comply with Canada-wide public health norms, and with the legal room and financial capacity to innovate and adapt those norms to specific local circumstances. In ideal circumstances, the backstop would not apply in any provincial or territorial jurisdiction.

The constitutional basis for federal backstop legislation would be the Peace, Order and Good Government (POGG) power, which can be exercised in cases of “provincial inability”. In Reference re Securities Act, the Supreme Court interpreted the idea of provincial inability to encompass federal jurisdiction over “systemic risks”. In the economic context, the Court defined systemic risks as “risks that occasion a ‘domino effect’ whereby the risk of default by one market participant will impact the ability of others to fulfill their legal obligations, setting off a chain of negative economic consequences that pervade an entire financial system”. It reasoned that “by definition, such risks can be evasive of provincial boundaries and usual methods of control”. The concept of systemic risk should encompass federal authority to manage global pandemics, as a systemic health risk is characterized by chain reactions and domino effects which do not respect national or provincial borders.

· International and interprovincial travel: International and interprovincial transportation fall under federal jurisdiction. Canada has imposed new border controls, including an interim order under the Aeronautics Act that air carriers screen Canadian citizens trying to board flights back to Canada and not board those who have suspected signs or symptoms of COVID-19. It has been argued that this policy may be unconstitutional under the Charter. Section 6(1) of the Charter guarantees the right of every Canadian to enter Canada. A constitutional challenge would turn on whether the federal government has chosen the approach that infringes rights only to the extent necessary — the approach taken may create both false positives (if individuals do not have COVID-19 but are prevented from boarding) and false negatives (if asymptomatic COVID-19 individuals are allowed to board).

Interprovincial travel restrictions also raise potential constitutional issues. A number of provinces are reported to have set up border checkpoints — for example, along the Nova Scotia-New Brunswick border and on the Alexandra Bridge in Gatineau. Provincial governments are reportedly stopping vehicles, requesting identification, asking travelers about the purpose of their visit, and enforcing a ban against “non-essential” travel. If this is in fact occurring, it raises three constitutional issues. First, under s. 6(2) of the Charter, Canadians and permanent residents have the right to economic mobility — that is “to move to and take up residence in any province” and “to pursue the gaining of a livelihood in any province.” This right would encompass the inter-provincial provision of a service. However, it does not extend to strictly social travel — for example, to visit an ailing family member. Second, travel for non-economic purposes is arguably protected by s. 7 of the Charter, which protects the right to liberty. Third, interprovincial transportation falls under federal jurisdiction, under s. 92(10)(a) of the Constitution Act, 1867, which entails that a province “must not prevent or restrict interprovincial traffic”, as the Privy Council held in Attorney-General (Ontario) v. Winner.

5. Legislatures and Executives

Finally, let’s turn to the relationship between legislatures and executives. COVID-19 has led executives around the world to propose legislation to delegate legislative powers to them, on the basis that the crisis is so fast-moving that the traditional legislative process cannot keep pace with it. Canada is no exception.

· Federal: The first legislative response to COVID-19 was Bill C-13, An Act respecting certain measures in response to COVID-19. A draft version of Bill C-13 contained a provision that would have authorized Parliament to change taxes without parliamentary approval until the end of 2021. This portion of Bill C-13 was dropped, in the face of the objections of opposition parties. An interesting question is whether the delegation of tax authority would have been constitutional. Under s. 53 of the Constitution Act, 1867, only Parliament — not the federal government — can impose taxes. However, the Supreme Court held in Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General) that the legislature can delegate its power to set taxes to the executive through “express and unambiguous language” in a statute. If the omitted portion of Bill C-13 met this condition, it would have probably been constitutional.

· Alberta: Alberta’s Bill C-10, the Public Health Emergency Powers Amendment Act, 2020, might go one step further. It purports to grant ministers the power, upon the declaration of a public health emergency, to “specify or set out provisions that apply in addition to, or instead of, any provision of an enactment” — that is, the power to amend any legislation, without recourse to the legislative process. The legal question is whether such amendments are limited in duration to the public health emergency itself, or whether they are permanent. If they are permanent, Bill C-10 contains what is known as a “Henry VIII clause”, so named because Henry VIII preferred to legislate through executive proclamation rather than by Parliament. Over a century ago, the Supreme Court ruled that Henry VIII clauses were constitutional, in Re Gray. However that decision was handed down during armed conflict — not a pandemic during peacetime. The constitutionality of Henry VIII clauses during peacetime has been subject to debate and in my view is an open question.

***

The COVID-19 pandemic has already thrown up myriad constitutional issues. More will likely emerge in the weeks and months to come. As we craft public policy responses to COVID-19, we will need to be increasingly attentive to the constitutional questions they raise.

Sujit Choudhry is the Principal of choudhry.law. He is a leading expert on the Canadian Constitution. He has appeared as counsel before the Supreme Court of Canada, and was a legal consultant to the National Advisory Committee on SARS and Public Health. He has published over 100 articles, book chapters, working papers, and reports, and work has been cited with approval by the Supreme Court of Canada and other courts across Canada.