The Rule of Law in Pandemic Ti-1

The Rule of Law in Pandemic Times*
Dr. A. Wayne MacKay C.M., Q.C.**
1. THE COVID PANDEMIC: A CASE STUDY IN BALANCING RIGHTS

IN A HEALTH EMERGENCY
In times of crisis, such as the COVID-19 global pandemic, we are forced to

define who we are as both individuals and as citizens of the larger society. The rule
of law in such a crisis is a vital pillar of our democratic edifice. Striking the correct
balance between individual rights and the welfare of the broader society is always
critical, but it is even more so in times of crisis. This article begins with one of the
key tenets of the rule of law — the need for all exercise of government authority
(especially restrictions on rights) to be grounded in valid legal authority. Another
critical aspect of the rule of law is equality before and under the law, This is
explored in section two of this article in respect to the impact of both COVID-19
itself, and the restrictions enacted in response to it, on the most vulnerable members
of Canadian society.
In part three Professor MacKay examines in considerable detail the various
categories of government restrictions and the reactions and challenges to them. He
organizes the restrictions into ten categories: Mandatory Masks; Business
Closures; Gathering Restrictions; The Freedom Convoy Protests; Dissent and
Free Speech; Proposed Vaccination Tax; Curfews and Lockdowns; Travel;
Mandatory Isolation and Quarantine; and finally, COVID Vaccines and Privacy
Concerns.
After a fourth section on emerging and future issues, Professor MacKay
concludes that the rule of law has served us well during these challenging times.
Courts and administrative agencies have struck a reasonable balance between
individual and collective rights and kept pace with the ever-changing and evolving
*
This article was first delivered as a lecture on October 4, 2021, at the 1st Annual Rule of
Law Lecture, sponsored by the Schulich School of Law at Dalhousie University and the
International Commission of Jurists (I.C.J.). It was revised and updated in early March
2022, to reflect the changing nature of the pandemic and the related legal developments.
**
Professor Emeritus of Law, Schulich School of Law at Dalhousie University. Dr. A.
Wayne MacKay C.M., Q.C. is a nationally recognized teacher and scholar, and
accomplished author in the areas of Constitutional Law, the Charter of Rights, Human
Rights, Privacy Law, and Education Law. In addition to teaching courses in the previous
areas, he has also taught Administrative Law, Criminology, and Aboriginal Rights. He
has conducted major government studies on inclusive education, cyberbullying, and
social and economic rights, and he has written extensively in these areas. The author
acknowledges the excellent research and input of Natasha Procenko, a 2021 graduate
of the Schulich School of Law at Dalhousie University and Jason Stephanian, of the
2023 graduating class Schulich School of Law at Dalhousie University.
36 [43 N.J.C.L.]
nature of the pandemic. He also opines that perhaps Canada can emerge from
COVID-19 as a more caring nation and one that is truly committed to justice and
equity as embodied in the rule of law.
———————
En temps de crise, telle la pande´mie mondiale de la Covid-19, on doit se de´finir
en tant qu’individus et membres de la socie´te´ en geńe´ral. L’État de droit lors d’une
telle crise est le socle de notre e´difice de´mocratique. S’il est primordial de trouver le
juste milieu entre les droits individuels et de la socie´te´, ce l’est davantage en temps
de crise. L’article de´bute avec l’un des principes fondamentaux de l’E´tat de droit-
soit la validation de l‘exercice du pouvoir gouvernemental (surtout celui qui porte
atteinte aux droits). L’autre aspect critique demeure l’e´galite´ devant la loi.
L’impact de la Covid-19 et des mesures sanitaires sur les membres les plus
vulne´rables de la socie´te´ est aborde´ dans la deuxie`me partie de l’article.
Dans la troisie`me partie, le Professeur MacKay examine de façon de´tailleé les
diffe´rentes cate´gories de consignes sanitaires ainsi que les reáctions et de´fis qu’elles
ont suscite´s. Les consignes sont re´pertorieés en dix cate´gories, soit : le port du
masque obligatoire; les fermetures de commerces; les rassemblements limite´s; le «
Convoi de la liberte´ » ; la dissidence et la liberte´ d’expression; l’isolement et la
quarantaine; et enfin, les vaccins contre la Covid et la preóccupation d’atteinte à la
vie priveé
A la suite d’une quatrie`me partie sur les questions nouvelles et a` venir, le
Professeur MacKay conclut que l’E´tat de droit nous a bien desservi en cette pe´riode
difficile. Les tribunaux ainsi que les organismes administratifs ont su trouver
l’e´quilibre entre les droits individuels et collectifs tout en s’adaptant a` l’e´volution
constante de la pande´mie. Il estime que le Canada pourrait se relever de la COVID-
19 plus bienveillant et vraiment engage´ à la justice et l’e´quite´, tels qu’incarne´s dans
l’État de droit.
The importance of the rule of law, and the role of law in responding to a
global pandemic is a topic of vital importance throughout the world. In times of
crisis such as the COVID-19 global pandemic, we are forced to define who we are
as individual citizens and as a society. Both at an individual level and at a
broader national level, we need to clarify our basic values and principles. One of
the defining characteristics of any society is how it strikes the balance between
individual rights and the broader collective good of that society. An exploration
of the rule of law in these challenging times of the COVID-19 pandemic offers a
vivid illustration of who we are as individual people and as a nation.
This article will consider the challenge of balancing individual rights, be they
Charter, statutory or common law in their origins, and the collective rights of the
population. This is not just a balancing of individual rights and collective
restrictions but in some sense a balancing of competing rights. One of the most
important rights is the right to life and health. Without our health we have a
reduced quality of life or no life at all. The need for this balancing approach is
THE RULE OF LAW IN PANDEMIC TIMES 37
well articulated in s. 1 of the Canadian Charter of Rights and Freedoms which

reads as follows:
The Canadian Charter of Rights and Freedoms guarantees the rights
set out in it subject only to such reasonable limits prescribed by law as
can demonstrably be justified in a free and democratic society.1
The proper approach to applying this important section of the Charter was first
articulated by the Supreme Court of Canada in R. v. Oakes2 and has been
revisited in most of the thousands of Charter cases since then. In simple form, the
section emphasizes that rights are not absolute but are subject to ‘‘reasonable
limits in a free and democratic society.” The burden is clearly on the relevant
state authority to ‘‘demonstrably justify” such limits on rights. The burden is a
high one. It requires proof of a ‘‘pressing and substantial” state objective and the
pursuit of that objective by reasonable and proportional means. The means must
be rationally connected to the objective, impair the relevant rights as little as
possible (be minimally impairing) and properly balance the harm of restricting
rights against the benefits of pursuing the relevant state objective.
This same kind of balance is played out in respect to many statutory and
common law rights as well. Many statutes define basic rights but also recognize
the need for certain limits and exceptions to promote collective rights and values.
This upfront recognition of limits on rights to advance the reasonable collective
goals of the larger society is a defining feature of the Canadian Charter. The need
to protect the general public from the various forms of the COVID-19 virus is
pretty clearly a pressing and substantial state objective in the context of this
global pandemic. The central debate is about the means adopted by the state to
promote public health and whether these means are reasonable and
proportionate, as limits on our individual freedoms. Even though the Charter
only applies to the state,3 broadly defined, it is also increasingly relevant in the
private sector as well. The consideration of ‘‘Charter values” even in private
sector disputes accentuates this point.4 Indeed, the traditional categories of
public and private law are breaking down and the lines between public and
private spheres have become increasingly blurred.5 This shift in the Canadian
1
Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.),
1982, c. 11 [Hereafter the Charter].
2
R. v. Oakes, 1986 CarswellOnt 95, 1986 CarswellOnt 1001, 50 C.R. (3d) 1, [1986] 1
S.C.R. 103 (S.C.C.); Wayne MacKay & Thomas Cromwell, ‘‘Oakes: A Bold Initiative
Impeded by Old Ghosts” (1983), 32 Crim L Rev (3d) 221.
3
Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580, 1986 CarswellBC 411, 1986
CarswellBC 764, (sub nom. R.W.D.S.U. v. Dolphin Delivery Ltd.) [1986] 2 S.C.R.
573 (S.C.C.).
4
Dore´ c. Que´bec (Tribunal des professions), 2012 SCC 12, 2012 CarswellQue 2048, 2012
CarswellQue 2049, [2012] 1 S.C.R. 395 (S.C.C.); Hill v. Church of Scientology of
Toronto, 1995 CarswellOnt 396, 1995 CarswellOnt 534, 184 N.R. 1, [1995] 2 S.C.R.
1130 (S.C.C.).
5
Wayne MacKay, ‘‘Evolving Fundamental Principles and Merging Public Law Silos:
38 [43 N.J.C.L.]
legal landscape has been accompanied by changing roles for all branches of the
state in promoting the Charter and an evolving and expanding concept of the rule
of law.6 I will expand on this phenomenon in the next section of this article.
Suffice to say at this point, that the challenges of balancing individual and
collective rights of the larger society in the context of the COVID-19 global
pandemic are challenges facing all three branches of the Canadian state —
legislative, executive, and judicial. All three arms of the state have obligations to
uphold the rights and values of the Charter, while also responding to the public
health emergency in a way that promotes the health and wellbeing of all
Canadians. In so doing, they provide a fascinating case study in the respective
roles of the legislature, the executive branch, and the courts, in promoting the
rule of law in pandemic times.
2. RULE OF LAW AND AUTHORITY FOR RESTRICTIONS LIMITING

RIGHTS
(a) Expanding Concept of Rule of Law

Constitutionalism and the Rule of Law are identified by the Quebec
Succession Reference as among Canada’s underlying constitutional principles. 7
The Supreme Court of Canada states:
At its most basic level, the rule of law vouchsafes to the citizens and
residents of the country a stable, predictable, and ordered society in
which to conduct their affairs. It provides a shield for individuals from
arbitrary state action.8
The rule of law is also called ‘‘a fundamental postulate of our constitutional
structure,” in the classic decision by former Justice Ivan Rand in Roncarelli c.
Duplessis.9
Providing an ‘‘ordered and predictable” social order when confronting the
COVID-19 global pandemic is a major challenge for all nations, including
Canada. It is the major task facing all three branches of the Canadian state.
Inherent in the expanding concept of the rule of law is establishing the proper
lines of accountability. There is always a need for the executive arm of the state
to operate within its statutory mandates. In that sense, the executive or
administrative branch must be fully accountable to the legislative branch and
The Reshaping of Canada’s Constitutional Law Landscape” in Erol Mendes &

Stéphane Beaulac, Canadian Charter of Rights, 5th ed. (Toronto: Lexis Nexis, 2013) 83
at 83.
6
Ibid., at 106-110.
7
Reference re Secession of Quebec, 1998 CarswellNat 1300, 1998 CarswellNat 1299,
[1998] 2 S.C.R. 217, [1998] S.C.J. No. 61 (S.C.C.) at para. 70.
8
Ibid.
9
Roncarelli c. Duplessis, 1959 CarswellQue 37, [1959] S.C.R. 121 (S.C.C.) at 142.
where necessary, to the courts. As Justice Rand indicates in Roncarelli c.

Duplessis, however broad the statutory grant of authority to an administrative
officer may be, no discretion is absolute and unfettered. 10 All government
authorities must operate within both their statutory and constitutional limits. No
person is above the law.
Not only has the concept of the rule of law expanded over time, but it has
also become even more important in these troubling pandemic times.
Traditionally, the executive arm was seen as the enemy of individual rights
and the courts were seen as the major check on the discretionary actions of the
administrative arm. In our complex society the role of the executive has grown,
and the number of important administrative boards and agencies has
mushroomed. Legislatures have given these boards and agencies broader
statutory authority and wide discretionary powers. This growth in executive
power has been further accentuated by the COVID-19 pandemic. The nature of a
crisis such as a war or health crisis, is that power is centralized in the executive
branch of the state. Thus, administrative health authorities have broad power
over the lives of citizens in pandemic times.
There are always tensions between the rule of law and the supremacy of
parliament — both pillars of our British style constitutional structure. The roles
of legislators, administrators and courts are evolving to meet the demands of the
current health crisis. The proper system of checks and balances is even more vital
in these difficult pandemic times. In an excellent article, my friend and former
Supreme Court Justice Thomas Cromwell clearly articulates the need for the
administrative arm of the state to be a constructive part of promoting the rule of
law, and no longer be seen as the primary enemy of individual rights. He states:
We have a collective responsibility for making real the promises of the
rule of law; we are partners in the administration of justice. In short we
have avoided the apocalypse that Lord Heward feared and we are fully
engaged in the project of making administrative law strike a just
balance between the at times competing demands of the rule of law and
legislative supremacy.11
The need for all three branches of the state to promote the rule of law is even
more imperative in a time of crisis. That is also true with respect to upholding
Charter rights and values.
As with the rule of law, all three branches of the state share responsibility for
the promotion and protection of Charter rights and values. While the courts are
the ultimate guardians of Charter rights, they are not the sole protectors of these
rights, nor do they have a monopoly on balancing individual and collective
10
Ibid., at 140.
11
Justice Thomas A. Cromwell, ‘‘From the New Despotism to Dunsmuir: A Funny
Thing Happened on the Way to the Apocalypse” (2011), 24 Can J of Admin L & Prac
285 at 290.
40 [43 N.J.C.L.]
rights. As former Chief Justice of the Supreme Court of Canada, the Hon.
Beverley McLachlin states:
A just society is the project of responsible action by all three segments
of government — the elected legislators, the executive charged with
enforcing and administering the law and the courts.12
Former Chief Justice McLachlin also explains that the courts must maintain
their independence and separation from the other branches of the state, but the
courts must also work with other branches to make Charter rights meaningful on
the front lines. Like the other more political branches of the state the courts do
take account of the practical impacts of how the balance gets struck between the
individual rights of the people and the collective rights of all Canadians to be
protected from the dangerous COVID-19 virus. That is partly why I do not
expect the courts to differ significantly from the other branches of the state in
striking the right balance. All three branches of the Canadian state must carefully
consider the impact of their decisions on the real lives of people.
The arrival of the Charter itself in 1982 has had a major impact on Canada’s
constitutional landscape and has changed it for the better. It has injected a rights
focus into political decision-making and the exercise of government authority. 13
However, the Charter is not just about individual rights, but also about
respecting collective rights. This distinguishes Canada from some other countries
such as the United States of America. The ‘‘reasonable limits” provision in s. 1 of
the Charter emphasizes the need to balance our individual rights with the
collective good, as initially defined by the elected legislators. All three branches
of the state must be actively involved in responding to the health crisis presented
by COVID-19. The legislators provide the initial legal framework, the
administrators execute the responses, and both the courts and the
administrative agencies, such as human rights commissions and privacy
agencies, ensure that the right balance is struck between individual and
collective rights. The nuanced interactions of all three branches of the
Canadian state are being put to the test in responding to the COVID-19
pandemic health crisis.
(b) Exercise of Emergency Powers

In spite of the fact that COVID-19 is a global pandemic with devastating
repercussions throughout the world, most Canadian responses to the health crisis
have been at the provincial and municipal levels. This is partly explained by the
constitutional division of powers in Canada as a federal state, where much of the
frontline health authority is exercised by the provinces. The municipalities
acquire any jurisdiction by delegation from the provinces. Given that the
12
Justice Beverley McLachlin, ‘‘Charter Myths” (1999), 33 UBC L Rev 23 at 35.
13
MacKay, supra note 5 at 86-106.
COVID-19 virus does not respect provincial borders, this poses an additional
complication to an effective pandemic response.
Health is not a discrete matter of jurisdiction assigned exclusively to either
the federal or provincial levels of government. It is rather a disparate matter
subject to regulation by both levels of government. Each level of government can
regulate different aspects of health in Canada. The federal government’s
authority over health includes powers related to spending, criminal law, inter-
provincial and international aspects of health and the general power to make
laws for the ‘‘Peace, Order and Good Government of Canada.” 14 Provincial
constitutional authority in respect to health is based upon their s. 92 jurisdiction
over hospitals, property and civil rights and matters of a local nature in the
province.15 This division of legislative authority has translated into provinces
delivering healthcare, including emergency healthcare.
The federal role has been largely focused on setting of national health
standards and funding some aspects of health delivery through its spending
power. In a health crisis such as COVID-19, the powers of the federal
government can be broader, using its emergency or general power over ‘‘Peace,
Order and Good Government.” This head of power allows the federal
government to intrude upon traditional areas of provincial jurisdiction, so
long as it meets three conditions. First, it must be temporary in nature, not
permanent. Second, there must be some rational link to federal authority. Third,
it must be for the benefit of Canadians as a whole.16
In spite of the above powers, the federal government of Canada did not
exercise its power under the Emergencies Act,17 to declare a national emergency
in respect to COVID-19. With or without this emergency power, some have
argued that the federal level of government should have been more active in
setting national health standards.
These standards could have expanded the scope for intergovernmental
cooperation to coordinating provincial responses to the pandemic, on matters
such as surveillance, investigations, and general outbreak management. On
matters such as the procuring of vital vaccines this kind of intergovernmental
cooperation was generally very effective. Sujit Choudhry argues that the federal
government should have passed new legislation giving the mandate to create such
public health norms to the Public Health Agency of Canada.18 In its 2003 report,
14
Constitution Act, 1867 (U.K.), 31 Vict., c. 3, reprinted in R.S.C. 1985, Appendix 11, No.
5 (hereinafter Constitution Act, 1867) at s. 91.
15
Ibid., at s. 92.
16
Reference re Anti-Inflation Act, 1975 (Canada), 1976 CarswellOnt 405F, 1976
CarswellOnt 405, [1976] 2 S.C.R. 373 (S.C.C.) at 425 [S.C.R.].
17
Emergency Measures Act, R.S.C. 1985 (4th Supp.), c. 22; Prime Minister Justin
Trudeau does trigger the Emergencies Act for the first time ever in February 2022, in
respect to trucker protests against COVID restrictions, but not in respect to the
COVID-19 pandemic itself.
18
Sujit Choudhry, ‘‘COVID-10 and the Canadian Constitution”, Sujit Choudhry (May
42 [43 N.J.C.L.]
Learning from SARS: Renewal of Public Health in Canada the National Advisory
Committee on SARS and Public Health recommended the creation of such
public health norms as part of the mandate of the newly created federal agency.
In light of the tragic loss of life in many long-term care facilities in Canada,
the federal government could have played a more active role by setting national
standards for long term care in this country. This has been a problem area long
before COVID-19 struck but that crisis accentuated the problems. Between
March 2020 and February 2021, more than 80,000 residents and staff members
of long-term care facilities in Canada were infected with COVID-19. Outbreaks
occurred in 2,500 such facilities resulting in the death of 14,000 residents. 19 While
the core problems in long term care are under-funding and staffing of these
facilities, the existence of national standards and more federal funding might
have reduced the magnitude of this national tragedy. Canada’s loss of life (on a
per capita basis) in these types of facilities during COVID-19 to February 2021
exceeds that of most other wealthy countries in the world.20
A crucial aspect of the rule of law is that those administering the laws must
operate within their legal sources of authority. This is particularly problematic in
respect to the provincial responses to the COVID-19 pandemic because the
numerous legal sources of authority form a complex and often tangled web.
There are three major categories of relevant provincial law: (1) statute law, (2)
delegated or subordinate legislation, and (3) quasi-legal instruments which are
not binding, and which can be called soft law.
Every province had at least two major types of statutes to respond to a health
crisis such as the COVID pandemic. They are public health statutes like the
Health Protection Act in Nova Scotia,21 and the statutes related to emergencies,
such as the Emergency Management Act22 in Nova Scotia. While there is some
variation from one province to another, they are all very similar.
Most provinces (nine out of the 13 jurisdictions) have triggered both statutes
and declared a provincial emergency. The remaining four jurisdictions (Alberta,
Quebec, Newfoundland and Labrador, and Nunavut) have just declared a health
emergency under their public health statutes. In general, most emergency
12, 2020), online: <https://sujitchoudhry.medium.com/covid-19-the-canadian-con-

stitution-52221ef31dc3> [perma.cc/W8P4-RVRF].
19
Jean-Guy Soulière, ‘‘Seniors have suffered enough — implement national standards in
long-term care”, Halifax Chronicle Herald (September 16, 2021) A6.
20
Ibid. It is also notable that a class action lawsuit has been launched in Nova Scotia
against both the provincial government and the long-term care facility Northwood, in
response to the many deaths there. See Carla Munroe v. Nova Scotia Health Authority,
Hfx No 520113. Many other provinces also have experienced tragic losses of lives
among vulnerable residents of these facilities. There are also other ongoing legal actions
against provincial governments related to the long term care sector.
21
Health Protection Act, S.N.S. 2004, c. 4.
22
Emergency Management Act, S.N.S. 1990, c. 8.
management statutes have a wider range of powers and more severe penalties.
The state of emergency must be renewed every few months.
Typically, under the Nova Scotia Health Protection Act there is a significant
concentration of authority in the Chief Medical Officer of Health and through
them, their staff. Even though s, 2 of this statute cautions that the exercise of
these broader powers are to be ‘‘no greater than are reasonably required
considering all the circumstances. . .” The powers of the Chief Medical Officer
and their staff include detentions, quarantines, confiscation, closing premises,
surveillance and confinement, to name only a few. Under s. 32 of the Nova
Scotia Health Protection Act, the Chief Medical Officer also has broad powers to
issue orders and directives. This officer can also declare an emergency and take a
wide range of measures under s. 53 of the statute, including ‘‘any other measures
the Chief Medical Officer reasonably believes are necessary.” 23
Similarly, under Nova Scotia’s Emergency Management Act a very broad
range of powers are concentrated in the Minister of Municipal Affairs who
operates on the advice of the majority of the Provincial Cabinet on certain
critical matters. This statute like those in other provinces grants sweeping powers
and significant penalties for violations. It is this statute that permits regulation of
who crosses provincial borders.
In Taylor v. Newfoundland and Labrador24 an order was issued under the
Public Health Protection and Promotion Act25 restricting travel to or from the
province while the emergency declaration was in effect. Ms. Taylor, whose
mother died the day before the health emergency was declared in Newfoundland,
sought an exemption to travel from Halifax, Nova Scotia to Newfoundland to
attend her mother’s funeral. The exemption was denied, and she challenged that
denial in court on both a division of powers and Charter basis. She lost on both
grounds. The court held that Newfoundland was within its provincial jurisdiction
as a local matter in the province under s. 92(16) of the Constitution Act, 1867. I
shall address the failed Charter challenges in a later section of this article. This
gives the flavour of the broad exercise of statutory powers and the difficulty of
challenging them.
The second and most prevalent source of provincial emergency powers is
delegated legislation. Both the public health and emergency categories of
provincial legislation allow for broad delegations of statutory authority. These
come in many forms such as regulations, orders, directives, and bylaws. Such
subordinate legislation has the full force of law so long as it is authorized by the
statute. This source of law is less open and subject to debate than the more open
legislative process. Centralization of government powers in the Executive branch
is the normal response during times of war or other crises to allow swift and
23
Health Protection Act, S.N.S. 2004, c. 4.
24
Taylor v. Newfoundland and Labrador, 2020 NLSC 125, 2020 CarswellNfld 237 (N.L.
S.C.).
25
Public Health Protection and Promotion Act, S.N.L. 2018, c. P-37.3, s. 28(1)(h).
44 [43 N.J.C.L.]
decisive action. In times of emergency, courts have accepted broad delegations of

authority so long as the effect is that the legislature does not abdicate its role or
that of Cabinet or breach the Constitution.26 The rule of law is not suspended but
some would say it is potentially compromised.
The final source of law for the provincial responses to the pandemic is ‘‘soft
law”.27 These are various types of non-binding authorities that can be in both
written and oral form. These flexible kinds of instruments can be easily changed
and thus can keep pace with a rapidly evolving problem like COVID-19. They
can also be expressed in simple language suitable for public access on a website.
However, this source of authority can also be confusing and misleading.
Members of the general public are likely to have difficulty in making
distinctions between legal rules subject to penalties and guidelines or
recommendations with no legal effect. For example, when Stephen McNeil,
former Premier of Nova Scotia, made his famous ‘‘request” that Nova Scotians
‘‘stay the blazes home,”28 it was at best in the category of soft law as were some
of the recommendations in press releases or media briefings. There are dangers
with the soft law approach from a rule of law perspective. If people are going to
be penalized for breaking the rules, they deserve to know clearly what the rules
are.
Another core tenet of the rule of law is that the lines of accountability for all
branches of the state should be clear. Soft law can be difficult to scrutinize
because the sources of the rule are not always known. There is also more room
for inconsistency and unequal application. In Sprague v. Her Majesty the Queen
in right of Ontario29 it was determined that a memorandum issued by the Chief
Medical Officer of Health for Ontario had no legal force as it was not pursuant
to statutory authority. Thus, the person challenging the memorandum related to
visitor policies at hospitals, could not get judicial review of the document to
determine whether it violated the Charter. I will return to the actual Charter
challenge later in this article.
Issues of accountability in courts and administrative agencies for broad
exercises of discretionary power are central to the rule of law concept. These
accountability issues are even more vital in times of a health crisis like COVID,
26
Reference re Regulations (Chemical) under War Measures Act (Canada), 1943
CarswellNat 29, [1943] S.C.R. 1 (S.C.C.). Sujit Choudhry argues that another effect of
this broad crisis delegation is that statutes can effectively be amended by executive
orders by what he calls Henry VIII clauses, supra note 18.
27
This is a term used by my research assistant Natasha Procenko, in an unpublished
paper she did for LAWS 2172: Advanced Legal Research at the Schulich School of Law
at Dalhousie University ‘‘Emergency powers and accountability of provincial
governments in the context of COVID-19” (December 2, 2020). I am also indebted
to her analysis in that paper.
28
This phrase is now the title of a book about the COVID-19 pandemic in Nova Scotia.
Len Wagg, Stay the Blazes Home (Halifax: Nimbus Publishing Limited, 2020).
29
Sprague v. Her Majesty the Queen in right of Ontario, 2020 ONSC 2335, 2020
CarswellOnt 5215 (Ont. Div. Ct.).
when sittings of the legislatures and their committees are significantly curtailed
or, in some cases suspended completely.30 These traditional political avenues of
accountability were impeded by COVID, making access to the courts and
administrative agencies such as human rights commissions even more important.
To make matters worse these latter bodies were also restricted by the risks of
COVID-19. Often the press was the main check on potential abuse of political
authority.
(c) Enforcement of Rules and Orders

Another central tenet of the rule of law is that the enforcement of the law (in
all its forms) should be fair and non-discriminatory. One aspect of being fair is
that the rules themselves should be clearly expressed and reasonably
communicated to the broader public. At various times over the last couple of
years many people struggled with what was forbidden and what was allowed.
This was particularly true during the more severe stages of the lockdowns, when
people were asked to stay home as much as possible and avoid being in public
spaces such as parks and walking trails. Because of the many demands on health
officials, they were not always able to clearly articulate or communicate the rules.
If people were found in forbidden spaces without a valid reason, they were
subject to penalties, often in the form of summary offence tickets for sums as
high as 1,000 dollars. To further complicate matters, these public health orders
were sometimes enforced by bylaw officers as well as the police and the
approaches were not always consistent. The Canadian Civil Liberties Association
(CCLA) became concerned about this problem in the spring of 2020 and began
collecting cases of possible abuse of enforcement authority from all across
Canada. This is an important contribution as the courts themselves were
hampered by the limits of COVID-19. The victims of fines often had neither the
time nor the money to pursue challenges.
The CCLA took a strong position against a punitive approach to combating
the COVID-19 pandemic and instead advocated a public health / educational
approach. It argued the latter was more appropriate for a democracy such as
Canada. In April of 2021 the Ontario government issued Regulation 8/21. This
gave police the authority to stop vehicles and pedestrians who were not in their
place of residence, without any grounds, to detain, question and obtain personal
information. The offence seemed to be just being outside. The CCLA sought an
injunction to prevent the Regulation from coming into force and before it got to
the court, these random police checks were replaced with far more reasonable
measures tied to specific public health objectives. This pre-emptive CCLA
success underscores the dangers of granting overly broad discretion without
accountability.
30
In Nova Scotia sittings of the Legislature and most of its committees were suspended
for most of the COVID-19 emergency. Most provinces reduced the open sittings.
46 [43 N.J.C.L.]
The proposed random police checks were similar to the now discredited
street checks, which were discriminatory in nature. In a recent CCLA Report,
Stay Off the Grass: COVID-19 and Law Enforcement in Canada the following
points were emphasized.31 First, is that a reliance on punitive enforcement tends
to disproportionately harm already marginalized communities. Second, studies
from other national jurisdictions that collect and release race-based data on
police responses to COVID-19 enforcement support the concern that existing
discriminatory police practices will be reflected in COVID-19 enforcement as
well. It appears that some provinces adopted a more punitive approach than
others. Of the five jurisdictions where detailed enforcement statistics are
available, the CCLA report found that Manitoba and Quebec were the most
punitive based on tickets issued.32
(d) Vulnerable Populations and Equity Challenges

To various degrees everyone has been impacted by the COVID-19 pandemic.
However, the impact has been most acute for those vulnerable communities
living on the margins of society. This is true in Canada as it has been throughout
the world. The poor (particularly those who are homeless), people of colour,
Indigenous people, people with disabilities, women, children, the elderly and
other marginalized groups have been disproportionately disadvantaged by
COVID-19 itself and sometimes also by the government measures designed to
counteract it. As one unfortunate example, mandates to stay at home have been
harmful to women and children in homes where they are subject to abuse.
Because many of these vulnerable groups include the categories of people
protected in provincial human rights codes, human rights commissions are one
form of redress for people who are facing discrimination. These administrative
agencies are often more accessible and flexible in meeting the needs of victims of
unequal treatment.33
The Charter also enshrines a broad concept of equality, building upon the
prior experiences with statutory guarantees of human rights. Section 15 of the
Charter reads as follows:
Equality Rights
31
Abby Deshman et al, ‘‘Stay Off the Grass: COVID-19 and Law Enforcement in
Canada”, Canadian Civil Liberties Association (June 2020), online: <https://ccla.org/
wp-content/uploads/2021/06/2020-06-24-Stay-Off-the-Grass-COVID19-and-Law-
Enforcement-in-Canada1.pdf> [perma.cc/HLT6-JA84].
32
Ontario, British Columbia, and Nova Scotia all had similar rates of ticket issuance
during the second wave of COVID-19 (October 2020-February 2021) — handing out
between 0.21 and 0.28 tickets per 1,000 people. Quebec and Manitoba had ticketing
rates of 0.51 and 0.69 per 1,000 residents respectively. Ibid., at 16.
33
A. Wayne MacKay, ‘‘The Marriage of Human Rights Codes and Section 15 of the
Charter in Pursuit of Equality: A Case for Greater Separation in Both Theory and
Practice” (2013), 64 UNBLJ 54.
15. (1) Every individual is equal before and under the law and has
the right to equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.
(2) Subsection (1) does not preclude any law, program or activity
that has as its object the amelioration of conditions of disadvantaged
individuals or groups including those that are disadvantaged because of
race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
There are many challenges in using either the courts to pursue a Charter equality
claim or a human rights tribunal to establish a discrimination complaint. These
include the cost, the time required and the lack of knowledge about these avenues
of redress. All of these barriers are accentuated by the limitations imposed by
COVID-19 and the related restrictions. Furthermore, it is difficult to argue that
there is a positive duty on governments to promote equality in addition to
responding to discrimination after the fact.34
One other Charter provision does offer some hope for imposing a more
positive duty on governments to act in an affirmative and proactive way. That is
s. 7 of the Charter. This section guarantees the following rights:
Legal Rights
Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
Sujit Choudhry argues that this above section, with its references to ‘‘life, liberty
and security of the person” does offer a possible duty to protect people, such as
health care workers and vulnerable populations, like the ones discussed in this
section. He argues that s. 7 of the Charter can be argued to impose a duty on
governments to take measures to protect those most at risk from a COVID-19
infection — the elderly, the disabled, and people with immunity issues, as prime
examples.35 For this assertion he relies on Bedford v. Canada (Attorney General)
and its Supreme Court ruling that prostitutes should not be exposed to increased
risk by the laws regulating them. 36 It is an interesting and appealing argument
but one that would face many hurdles. The interpretations of s. 7 of the Charter
have not been that bold to date, focusing more on the principles of fundamental
34
At the international level, there are more positive duties imposed under the Covenant on
Economic, Social and Cultural Rights to which Canada is a signatory. However, these
cannot be directly enforced and are mainly useful to encourage the courts and tribunals
to take a broad interpretation of domestic human rights documents.
35
Supra note 18.
36
Bedford v. Canada (Attorney General), 2013 SCC 72, 2013 CarswellOnt 17681, 2013
CarswellOnt 17682, [2013] 3 S.C.R. 1101 (S.C.C.).
48 [43 N.J.C.L.]
justice and less on the more substantive interpretations of life and security of the
person.
This more cautious approach to both ss. 7 and 15 of the Charter are reflected
in the few COVID-19 related cases to date. Many of the early COVID-19 cases
have arisen by way of an interlocutory injunction, because of the urgency of the
situations. Therefore, the burden on the claimants to establish a Charter
violation is the less demanding one of demonstrating there is a reasonable
argument to be made.37 In light of this the numbers of failures to establish a
Charter violation are even more surprising, although the overall test for an
interlocutory injunction is strict. The balancing of the competing rights of
claimants and respondents in the final step of the test for an interlocutory
injunction also provide a proxy for the s. 1 reasonable limits analysis in a full
Charter case. However, the analogy is not perfect.
In the actual s. 1 Charter analysis, a reasonable limit intended to protect the
members of a vulnerable group are given increased deference by the courts. This
was established in Irwin Toy Ltd. c. Que´bec (Procureur geńe´ral).38 This means
that government restrictions designed to protect the welfare of children, elderly
residents of long-term care facilities, or hospital patients, people experiencing
homelessness or prisoners, will be easier to defend. I will now turn to these types
of cases.
(i) People Experiencing Homelessness
Fourteen people experiencing homelessness who had been living in
encampments in parks in the City of Toronto and two organizations that
work with homeless populations brought a motion for an interlocutory
injunction. This was to prevent the City, during the COVID-19 pandemic,
from enforcing its by-law which prohibited camping and the erection of tents in
City parks.39 The applicants were concerned about the adequacy and safety of
the City’s shelter and housing facilities, given physical distancing requirements.
The applicants argued that enforcement of the by-law violated ss. 7, 12, and 15 of
the Charter in a way that was not justified by s. 1 and was contrary to several
provisions of the Ontario Human Rights Code.40 The application was dismissed
because the applicants failed to meet the test for injunctive relief. The court was
not satisfied that the broad relief sought by the applicants was justified, as the
applicants had not met the burden of establishing harm to the public interest.
Moreover, the relief sought was not supported given that the City had taken
steps to ensure shelters were available.
37
R. v. Canadian Broadcasting Corp., 2018 SCC 5, 2018 CarswellAlta 206, 2018
CarswellAlta 207, [2018] 1 S.C.R. 196 (S.C.C.).
38
Irwin Toy Ltd. c. Que´bec (Procureur geńe´ral), 1989 CarswellQue 115F, 1989
CarswellQue 115, (sub nom. Irwin Toy Ltd. v. Quebec (Attorney General)) [1989] 1
S.C.R. 927, [1989] S.C.J. No. 36 (S.C.C.).
39
Black et al. v. City of Toronto, 2020 ONSC 6398, 2020 CarswellOnt 15654 (Ont. S.C.J.).
40
Human Rights Code, R.S.O. 1990, c. H-19.
A similar removal of people from tents and temporary Tyvek huts being used
as temporary shelter for the homeless, occurred in Halifax, Nova Scotia in
August 2021. This encampment was in front of the now vacant old city library.
These kinds of shelters have sprung up around both Halifax and Dartmouth in
various public lands. When the police descended to remove some of the
occupants, they were met by protesters and there were violent encounters,
including the use of pepper spray. There are some pending challenges to the
police use of force and the actions of Halifax City in executing this encampment
removal. A motion to allow the Board of Police Commissioners to prepare a
draft of a mandate and terms of reference for an independent civilian review of
the oversight, governance, and policy aspects of the HRP’s handling of the
protests on August 18, 2021, has been brought forward.41
In a 2009 pre-COVID case, Victoria (City) v. Adams, both the British
Columbia Supreme Court and the British Columbia Court of Appeal concluded
that access to housing does raise a s. 7 Charter issue of ‘‘security of the person.”42
There is also some suggestion in these cases that in some circumstances the s. 7
claim can lead to a positive government duty to act. Another more recent
Vancouver case, Bamberger v. Vancouver (Board of Parks and Recreation), also
raises a similar issue in the context of a park tent encampment.43 Judicial review
of municipal orders and enforcement actions was successful in challenging the
fairness of the proposed eviction process and the matter was sent back for
reconsideration. If eviction was going to happen, it was going to be delayed and
would have to be executed in accordance with a fair process. This case illustrates
the value of common law rules of administrative fairness as another means of
upholding the rule of law during the COVID-19 pandemic.
Affordable housing and the plight of those experiencing homelessness is a
significant issue in many parts of this country. In some places it also raises
discrimination issues, as a disproportionate number of unhoused people are
Indigenous. Furthermore, unhoused women are also particularly vulnerable to
sexual exploitation. All of these concerns have been accentuated by the added
exposure to COVID-19. The homelessness and affordable housing crisis is one
that is more amenable to a political rather than judicial solution and is an
election issue at both provincial and federal levels.
Following the enactment of a decree imposing a curfew, a Quebec Legal
Clinic filed an application for judicial review seeking a partial suspension of the
decree with respect to people experiencing homelessness. The application was
granted, and the decree was suspended for the unhoused.44 The court considered
41
Harry Critchley, ‘‘Request for Consideration” (2021), online: <www.halifax.ca/sites/
default/files/documents/city-hall/boards-committees-commissions/
211018bopc71.pdf> [perma.cc/Z2Y4-7QUR].
42
Victoria (City) v. Adams, 2009 BCCA 563, 2009 CarswellBC 3314 (B.C. C.A.); Victoria
(City) v. Adams, 2009 BCSC 1043, 2009 CarswellBC 2065 (B.C. S.C.).
43
Bamberger v. Vancouver (Board of Parks and Recreation), 2022 BCSC 49, 2022
CarswellBC 77 (B.C. S.C.).
50 [43 N.J.C.L.]
the s. 7 rights of people experiencing homelessness, as well as the

disproportionate effect that the curfew has on them, contrary to s. 15 equality
rights. The applicant met the test for the relief it sought, with the court finding
that there was a serious issue to be tried; that the moving party would suffer
irreparable harm if the application were not granted; and that the balance of
convenience favoured the partial suspension. Importantly, the evidence brought
by the plaintiff Legal Clinic was uncontested and not subject to objection.
On December 31, 2021, the government of Quebec reimposed a mandatory
nighttime curfew to reduce the spread of the Omicron variant. 45 The curfew was
in effect from 10 pm to 5 am starting on New Year’s Eve until January 17,
2022.46 Documents later revealed that the curfew was enacted despite
recommendations to the contrary from Montreal Public Health, citing that
evidence showed curfews are not only ineffective but also detrimental to
vulnerable populations such as those at risk of domestic violence, those with
mental illness, and Quebec’s unhoused population.47
(ii) Hospital Patients, Group Home Residents and the Elderly
An Ontario application for judicial review, brought by a substitute decision
maker and son of a patient, concerned a no visitor policy instituted by the North
York General Hospital as well as a memorandum issued to Ontario hospitals by
the Chief Medical Officer of Health for Ontario. These were both issued in
March 2020.48 The memorandum recommended that hospitals only allow access
to ‘‘essential visitors.” The applicant was denied in-person access to his father
and claimed that the visitor policy violated his father’s ss. 7, 12, and 15 Charter
rights, and that the memorandum violated his s. 15 Charter right. The court held
that both the visitor policy and the memorandum were not amenable to judicial
review because neither was made pursuant to a statutory authority.
However, even if they were subject to statutory authority, neither infringed
the applicant’s Charter rights. The applicant’s s. 15 right was not infringed
because the visitor policy and the Memorandum did not create a distinction on
44
Clinique juridique itine´rante c. Procureur geńe´ral du Que´bec, 2021 QCCS 182, 2021
CarswellQue 907 (C.S. Que.).
45
‘‘Quebec to resume provincewide night curfew starting on Dec. 31 in attempt to lower
COVID cases”, National Post (December 30, 2021), online: <https://nationalpost.-
com/news/canada/cp-newsalert-quebec-imposes-covid-19-nighttime-curfew-starting-
on-new-years-eve> [perma.cc/SCW3-K95H].
46
Luca Caruso-Moro, ‘‘Quebec’s 10 p.m. curfew will be lifted on Monday”, CTV News
(January 13, 2022), online: <https://montreal.ctvnews.ca/quebec-s-10-p-m-curfew-
will-be-lifted-on-monday-1.5739074> [perma.cc/VZ9Q-Z2BD].
47
‘‘Unredacted document shows Montreal Public Health urged Quebec not to impose
2nd curfew”, CBC News (March 4, 2022), online: <www.cbc.ca/news/canada/
montreal/curfew-does-more-harm-than-good-montreal-1.6372538> [perma.cc/
A6KB-CK9B]; For more commentary on curfews and lockdowns, see III. Government
Restrictions: Challenges and Reactions, 7. Curfews and Lockdowns, below.
48
Sprague, supra note 29.
the basis of an enumerated ground, nor did they reinforce, perpetuate, or

exacerbate a disadvantage. The court also rejected the applicant’s claim that the
Visitor Policy infringed Mr. Sprague’s ss. 7 and 12 Charter rights.
The visitor policy did not infringe s. 7 because it fulfilled its objective of
limiting the spread of the virus, and was therefore not arbitrary; it was not
overbroad as its tailored exceptions ensured that it did not affect more people
than it needed to; and it was not grossly disproportionate since it did not go too
far to protect patients. The court determined that Mr. Sprague’s s. 12 Charter
right was not engaged because neither Mr. Sprague nor the applicant as a visitor
was subject to active state control.
In another Ontario case, the Ontario Human Rights Tribunal considered
whether a group home’s visitation ban was discriminatory against a 14-year-old
resident with a communications disability.49 Due to the visitation restriction
policy, the resident was not permitted to see his family for several months and
was instead offered video calls and drive-by visits. After his request for
accommodation was denied, the applicant filed an application with the Human
Rights Tribunal, alleging that the home’s visitation policy discriminated against
him and failed to accommodate him to the point of undue hardship. The
Tribunal agreed with the applicant, finding that prima facie discrimination had
been demonstrated and that the home failed to establish that accommodating his
disability-related needs would constitute undue hardship. As such, the home was
ordered to pay damages and implement an accommodation policy for visitor
restrictions during the pandemic. The decision confirms that a service provider is
required to follow the requirements of the Human Rights Code and is required to
apply government guidance in a way that is consistent with human rights
obligations, even in a pandemic.
As discussed in an earlier section of this article, another highly vulnerable
group is the elderly residents of Canada’s long term care facilities. These people
are particularly susceptible to contracting COVID-19 and the consequences of so
doing may well be death. A disproportionately large number of the Canadians
who died in the pandemic were residents of long-term care homes. This tragic
loss of life in these homes was acute in the first wave of COVID-19, when the
disease was less well understood, and governments did not always act as quickly
as they should. These tragedies in these facilities sparked a number of actions for
negligence throughout Canada. These actions often took the form of class
actions which will play out in the courts over the next several years.
There are several ongoing legal actions against governments related to the
long-term care sector that may be worth monitoring as they develop, specifically
out of Ontario. One example is a lawsuit against the Ontario government filed on
behalf of an 89-year-old former resident of an Ontario long term care home who
contracted COVID-19 while living there. The lawsuit alleges that the province
49
JL v. Empower Simcoe, 2021 HRTO 222, 2021 CarswellOnt 4469 (Ont. Human Rights
Trib.), reconsideration / rehearing refused 2021 CarswellOnt 6729 (Ont. Human Rights
Trib.).
52 [43 N.J.C.L.]
failed to oversee nursing homes, and that this resulted in ‘‘widespread and
avoidable illness, suffering and loss of life.” The lawsuit also alleges that the
province breached the Charter.50 Another is a class action lawsuit which was
launched on behalf of the residents at 96 long term care homes and their families,
who seek damages over alleged negligence, breaches of fiduciary duty, and
Charter s. 7 rights to life, liberty and security of the person.51 There are also
similar cases in other provinces as well, such as the one in Nova Scotia in respect
to Northwood Manor, mentioned earlier.
(iii) Students
On the opposite end of the age spectrum, the young are also vulnerable. Two
sets of British Columbia parents with health conditions who did not want their
children to return to school without a mask mandate, sought an interlocutory
injunction restraining the Ministers of Education and Health from transitioning
between classes without mandatory masks in classrooms.52 In the alternative, the
applicants sought an interlocutory injunction requiring that the government
implement a mandatory mask and physical distancing requirement in
classrooms. The applicants alleged a breach of their s. 7 Charter right. The
application was dismissed. The applicants were not entitled to the injunctive
relief they sought as they did not identify the exercise of statutory authority that
entitled them to an injunction and did not identify under which authority the
ministers may make the orders being sought. However, even if the applicants had
properly framed the injunction, they were still not entitled to it because they did
not establish a strong prima facie case, or that they would suffer irreparable
harm.
In Quebec a decree reinstating compulsory school attendance contained an
exception for students if they or a family member would have serious
complications if they contracted COVID. The Plaintiffs asked the court to
maintain distance education for all students on the basis that the decree violated
the right to life, liberty, and security as protected by both the Quebec Charter53
and the Charter. The court concluded that the measure did not infringe any
constitutional rights because nothing prevented parents from offering
homeschooling if they did not want to attend in person.54
50
Application between Vincenzina De Sao Jose et al v Ontario (Chief Medical Officer of
Health and Minister of Long-Term Care, online: <https://www.jccf.ca/wp-content/
uploads/2020/08/Urgent-Notice-of-Application-for-Judicial-Review-Maione-v.-On-
tario_Redacted.pdf> [perma.cc/54A6-XE3R].
51
‘‘Class Action Lawsuit Launched on Behalf of Residents of 96 Ontario Long Term
Care Homes”, Rochon Genova LLP (July 29, 2020), online: <https://www.rochon-
genova.com/class-actions/hospital-and-nursing-home-outbreaks/> [perma.cc/
C6AP-2XUB].
52
Trest v. British Columbia (Minister of Health), 2020 BCSC 1524, 2020 CarswellBC
3564 (B.C. S.C.).
53
Quebec Charter of Human Rights and Freedoms, C.Q.L.R., c. C-12.
(iv) Prisoners
For the purposes of this section, I will summarize the analysis and
conclusions of Schulich School of Law Professor and prisoners’ rights expert
Adelina Iftene.55
Correctional Service of Canada and the provincial prison systems have a
duty to provide incarcerated individuals with health services that are comparable
to those in the community, but they have failed to do so during the COVID-19
pandemic. There are inherent practical difficulties in implementing health care in
prisons. In addition, prison demographics include a higher proportion of
populations that are vulnerable to disease. These factors together mean that the
prison response to COVID-19 must involve depopulation and the
implementation of guidelines provided by public health agencies in all
institutions.
So far, the measures taken have been insufficient, as is evidenced by the rapid
rates of spread of COVID-19 within prisons compared to the broader
community. An overreliance on segregation of incarcerated individuals as a
preventive measure raises concerns under s. 7 of the Charter and international
human rights. There are also equality concerns under s. 15 of the Charter, given
the high proportion of Indigenous people in prison. Ultimately, some prison
systems’ failure to respond adequately to the pandemic impedes the successful
flattening of the curve and will likely prolong the life of COVID-19 in the
community. Such failure highlights the urgency of the much-needed prison
reforms that have been overlooked for decades.
The John Howard Society of Canada, which advocates for criminal-justice
reform, along with seven people incarcerated in federal penitentiaries in British
Columbia. during the pandemic, filed a civil claim in the Supreme Court of
British Columbia. They say that, in efforts to stop the spread of the disease,
Correctional Service Canada imposed restrictions that infringed the Charter
rights of prisoners, depriving them of meaningful human interaction, hindering
their prospects of parole and negatively impacting their mental, physical, and
psychological well-being. The plaintiffs are seeking declarations and injunctive
relief against Correctional Service Canada and the Attorney-General of Canada.
The lawsuit also asserts that Correctional Service Canada directly deprived
prisoners of reasonable opportunities for parole or release by delaying,
suspending or otherwise restricting the availability of the opportunities
themselves.
There are a few conclusions from these early cases dealing with legal
challenges arising from within vulnerable populations. It would appear that few
54
Karounis c. Procureur geńe´ral du Que´bec, 2021 QCCS 310, 2021 CarswellQue 1339 (C.S.
Que.).
55
Adeline Iftene, ‘‘CoVID-19 in Canadian Prisons: Policy, Practice and Concerns” in
Colleen M. Flood et al, eds, VULNERABLE The Law, Policy and Ethics of COVID-19
(Ottawa: University of Ottawa Press, 2020).
54 [43 N.J.C.L.]
of the existing claims succeeded, especially in the courts. However, many of these
Charter challenges are ongoing, such as the ones from prisoners. That is also true
for the negligence claims against the operators of long-term care facilities during
COVID-19. Clearly this pandemic will be a test for the rule of law, which will be
further explored in the next section.
3. GOVERNMENT RESTRICTIONS: CHALLENGES AND

REACTIONS
The crisis situation facing Canadians with this COVID-19 pandemic is one
that is ripe with potential legal challenges. The centralization of authority in the
hands of chief medical officers of health, and in the executive branches of
governments generally, has produced situations where the provincial premiers
(and sometimes also the ministers of health) and the chief medical officers,
govern by decrees and orders. Their main accountability has been through press
conferences. The media has replaced the elected legislators as the opposition. In
such a scenario, the rule of law in all its forms is a vital bulwark against abuse.
From the perspectives of governments, it is a situation where either inaction
or action can be the source of trouble in both political and legal terms. In
colloquial terms, you can be damned if you act or damned if you do not. While
the courts have been slow to find affirmative duties on governments to act in
order to protect and prevent problems, the COVID-19 challenge makes the call
for such proactive duties far more compelling. Government failure to respond
aggressively and appropriately to the health crisis may produce both legal and
political consequences. When the responses in places like Alberta or British
Columbia and Saskatchewan are contrasted with the far more proactive
responses in Atlantic Canada and the result is a significant and tragic loss of
lives, legal challenges become more likely. It is even more tragic when the loss of
life is from a preventable disease.
Problems can also arise from the actions that governments do take in the
form of restrictions and limitations on people’s rights. There will be criticisms
from different quarters for both going too far with restrictions and not going far
enough. If the various measures adopted fail to take account of various
vulnerable groups or make their existing situations worse, then that can raise
legal arguments such as the duty to protect in Bedford v. Canada (Attorney
General).56 The nature of COVID restrictions advocated by health authorities is
that there will be significant limits placed upon individual rights. Among those
individual rights will be the majority of constitutionally guaranteed rights in the
Charter.
As emphasized at the beginning of this article, the fact that Charter rights are
engaged by the COVID-19 restrictions does not mean that the courts will find
violations at the end of the day. The critical question is whether the restrictions
56
Supra note 36.
can be defended by the relevant governments as reasonable limits in Canada’s

‘‘free and democratic society.”
As indicated in the previous section, the disparate impacts of COVID
restrictions on various vulnerable groups raise important issues of equality under
both s. 15 of the Charter and the statutory equality rights in human rights codes.
As made clear by the Supreme Court of Canada in O’Malley v. Simpsons-Sears
Ltd.57 it is the impact of the allegedly discriminatory conduct that is critical, not
just the intent. Also as discussed above, the issues of enforcing the various
COVID-19 rules and orders in the midst of this pandemic can raise both
problems of equity and unfair application. The need for fair and clear rules that
are communicated effectively is at the heart of the rule of law. Equal treatment of
all is also vital in the concept. Effect, not just intent, is at the core of modern
conceptions of equality.
There are very few aspects of our daily lives that have not been affected by
COVID-19 and the restrictions developed to respond to the pandemic. The
shutdown of many provinces has had a major impact on our economies at
international, federal, and provincial levels. In the cases that follow there is an
exploration of the legal issues raised in closing businesses and restricting
consumer access to markets. One of the central challenges facing our leaders at
both the national and provincial levels, is balancing the need to protect people
from the COVID health crisis on one hand, and on the other hand, to do so in a
way that damages the economy as little as possible. In the long-term people want
both physical and economic health. The courts are likely to be quite deferential
to the elected leaders who have struck this highly contested political balance.
Another everyday impact of pandemic restrictions is their effect on our core
democratic processes of conducting elections. There have been a number of
provincial elections in provinces such as British Columbia, New Brunswick,
Nova Scotia, and Newfoundland and Labrador, to name a few. As I write this
article, we are in the final stages of what I believe is Canada’s first federal election
conducted during a global pandemic. Newfoundland and Labrador offers one of
the clearest examples of how conducting an election during a pandemic can raise
serious legal issues. Premier Andrew Furey of Newfoundland and Labrador won
a very narrow victory over his rivals in the spring 2021 election. There was a low
turnout and challenges with the large numbers of mail-in ballots. There were also
argued to be particularly negative impacts on people with disability and people in
isolated communities, including Indigenous people.
After the election was finished the leader of the Newfoundland New
Democratic Party (NDP), Alison Coffin, challenged the result in her riding
which she lost by only 53 votes. This challenge is supported by the provincial
NDP and at least one other voter in Ms. Coffin’s district.58 The outcome of the
57
O’Malley v. Simpsons-Sears Ltd., 1985 CarswellOnt 887, 1985 CarswellOnt 946, (sub
nom. Ontario Human Rights Commission v. Simpsons-Sears Ltd.) [1985] 2 S.C.R. 536,
[1985] S.C.J. No. 74 (S.C.C.).
58
Sarah Smellie, ‘‘NL NDP launched constitutional challenge of election results”, CTV
56 [43 N.J.C.L.]
case, before the Newfoundland and Labrador Supreme Court is still pending.
Among the constitutional challenges, there are likely to be claims of equality
violations under s. 15 of the Charter.
However, the main arguments are likely to focus on the lack of a meaningful
opportunity for people to exercise their democratic right to participate in a
provincial election. The democratic rights set out in ss. 3-5 of the Charter have
been interpreted broadly and unlike most of the rights under the Charter, these
rights are not subject to the override s. 33 of the Constitution Act, 1982.59 Thus
they cannot be set aside even for a short period of time. It will be interesting to
watch how these Newfoundland and Labrador challenges play out.
Even at the federal election level there have been some impacts of the
COVID-19 restrictions. The costs of the election have been increased by the
demands of conducting an election in the midst of a pandemic. The total cost of
this election has been estimated at 610 million dollars. The fact that Prime
Minister Justin Trudeau called the election during the fourth wave of the
pandemic in itself became a major election issue. Furthermore, the requirements
of wearing a mask to the voting booth led to some confrontations such as one in
Alberta on Election Day, September 20, 2021.60 The issue of mandatory mask
wearing in many public interactions is the first issue addressed in the categories
of cases that follow.
The following selection of the cases to date has been organized around types
of restrictions rather than the relevant sections of the Charter. The latter arise in
the context of exploring the categories. By so doing, it is my hope to make this
article more accessible to a wider range of people.
A large number of fundamental freedom issues in s. 2 of the Charter are
engaged by the pandemic restrictions. These include gathering restrictions
engaging both freedom of expression and association; as well as freedom of
religion in the context of places of worship issues; raising dissent and freedom of
assembly, in many different settings. The debates around the hotly contested
rules about vaccinations and the protests by anti-vaxers, have raised a host of
important questions about the proper balance between individual rights and the
collective rights of people to health and wellbeing.
Restrictions mandating lockdowns, setting severe limits on people’s mobility
rights to move between and within provinces, as well as curfews provide high
profile examples of limits on liberty interests in s. 7 of the Charter and mobility in
s. 6. Rules requiring people to isolate or quarantine again engage mobility rights
News (April 12, 2021), online: <https://atlantic.ctvnews.ca/n-l-ndp-launches-consti-

tutional-challenge-of-election-results-calls-for-new-vote-1.5384501> [perma.cc/
8RBF-NXP6].
59
Supra note 1 (in addition to the democratic rights, the mobility rights in s. 6 and the
language rights in ss. 16-23 of the Charter are not subject to the s. 33 override).
60
Karen Bartko, ‘‘Police respond to anti-mask dispute at Edmonton polling station”,
Global News (September 20, 2021), online: <https://globalnews.ca/news/8205087/
edmonton-polling-station-mask-dispute/> [perma.cc/XKY6-J98L].
as well as issues of detention. These issues of detention and mobility limits trigger
some of the legal rights under the Charter, as set out in ss. 7-14 and particularly
ss. 7, 8 and 9. The broad statutory powers used to respond to the COVID-19
crisis, coupled with police and bylaw enforcement, directly limit the liberty and
security of the person, and once again raise the challenge of balancing individual
and collective rights during a pandemic. Let me now turn to a review of some of
the existing cases. The following does not claim to be an exhaustive list but rather
an illustrative sample.
(a) Categories of Restrictions: Challenges and Reactions
(i) Mandatory Masks

In Ingram v. Alberta (Chief Medical Officer of Health),61 the applicants,
consisting of two churches and three individuals, sought an interlocutory
injunction staying a Chief Medical Officer of Health Order which mandated the
wearing of masks; restricted indoor and outdoor gatherings, including those in
private residences; and restricted the conduct of business in Alberta. The
applicants challenged the validity of the Orders on the grounds that they
unjustifiably infringe Charter rights, namely ss. 2 and 7. The application was
dismissed. The applicants met the first part of the three-part test for obtaining an
interlocutory injunction, namely, that there was a serious issue to be tried.
Additionally, the second part of the test was met in relation to the restriction on
gathering limit insofar as there was sufficient evidence upon which the court
could find that the applicants were likely to suffer harm to their right to manifest
sincerely held religious beliefs and promote positive relationships through
communal institutions and traditions.
However, the court was not persuaded and concluded that the impediments
caused by the mask wearing (i.e., that masks interfere with the ability to sing, to
reflect the glory of God through facial expressions, and to hear and communicate
with one another) did not meet the standard of irreparable harm. Similarly, the
evidence brought by one of the applicants asserting that she would not be able to
financially recover without the injunction reversing the business closure order,
fell short of establishing irreparable harm. Overall, the court was not satisfied
that the balance of convenience favoured granting an interlocutory injunction
and dismissed the application.
In The Customer v. The Store,62 a screening decision, the British Columbia
Human Rights Tribunal undertook an initial assessment of whether a store that
required customers to wear a face mask was discriminatory in the provision of an
accommodation, service, or facility customarily available to the public, contrary
to the province’s Human Rights Code.63 At the time, it was not a legal
61
Ingram v. Alberta (Chief Medical Officer of Health), 2020 ABQB 806, 2020
CarswellAlta 2542 (Alta. Q.B.).
62
The Customer v. The Store, 2021 BCHRT 39, 2021 CarswellBC 970 (B.C. Human
Rights Trib.).
58 [43 N.J.C.L.]
requirement for face masks to be worn inside, however the store implemented its
own mask requirement. The incident occurred when the complainant advised a
security guard at the store that she was exempt from wearing a mask but would
not provide any information other than claiming that wearing a mask caused
breathing issues and anxiety. She was asked to leave, and subsequently filed a
human rights complaint, alleging that the store had discriminated against her
based on a physical and mental disability by requiring that she wear a mask.
The Tribunal decided not to proceed with the complaint on the basis that the
alleged facts did not constitute a contravention of the Human Rights Code. In
order to establish a discrimination claim, a complainant must establish a
disability protected by the Code. Personal preference and disagreement with
mask mandates is not a protected ground. As such, some medical information is
required to succeed with a human rights complaint. However, the Tribunal
recommended that ‘‘[w]here the relationship is brief . . . duty bearers
accommodate those who are unable to wear masks without requiring them to
provide medical information, as this is sensitive personal information.”
Another human rights case, Beaudin v. Zale Canada Co. o/a Peoples
Jewellers64 involved two individuals who filed complaints with the Alberta
Human Rights Commission alleging that they had been discriminated against
when they did not wear a mask in retail stores. For both cases, the Commissioner
found that the retail stores were reasonable when they insisted that customers
and employees wear masks, and accordingly dismissed the complaints. Both
individuals told staff that they had disabilities which exempted them from
wearing masks. The stores, Costco and People’s Jewelers, both argued that they
offered appropriate alternatives to in-person shopping, such as online shopping;
home delivery; and curb-side pickup.
Miller v. Edmonton (City)65 presents an extreme anti-masking claim that the
Alberta Queen’s Bench handled quite easily. The applicant alleged that the
mandatory mask requirement was a risk to himself and others because of
unsanitary discarded masks. The applicant argued that this amounted to the tort
of nuisance and a violation of his Charter protected right to security of the
person. He requested a $565 million remedy. The action was terminated as the
claim had no basis in law, and the remedy was impossible and disproportionate.
It takes all kinds of people to make a society.
It is more than a coincidence that all of these complaints about masks
originate in the west, where there has generally been more resistance to COVID-
19 controls, than in Eastern Canada. People in Atlantic Canada in particular
have generally been more tolerant of the COVID-19 restrictions than our cousins
in the west. The contrast between the tolerance of restrictions in the east and
63
British Columbia Human Rights Code, R.S.B.C. 1996, c. 210.
64
Beaudin v. Zale Canada Co. o/a Peoples Jewellers, 2021 AHRC 155, 2021 CarswellAlta
2007 (Alta. H.R.T.).
65
Miller v. Edmonton (City), 2020 ABQB 784, 2020 CarswellAlta 2446 (Alta. Q.B.).
resistance to them in the west is intriguing. This greater degree of tolerance for
restrictions in Atlantic Canada is again demonstrated by the higher support for
COVID-19 restrictions even into 2022, when western provinces were quicker to
reduce restrictions.66
(ii) Business Closures
In Ingram v. Alberta (Chief Medical Officer of Health)67 discussed above, the
court held that the financial losses caused by the COVID-19 related business
closure did not cause irreparable harm, and the requested injunction was denied.
In another case, Rep Room London Inc. v. Summers,68 a fitness centre in London,
Ontario refused to close despite a COVID-19 public health order. The centre
argued that they fell within the disability exception of the mandate, which
allowed facilities to open ‘‘solely for the purpose of allowing use of the facility by
persons with a disability,” as defined by the Accessibility for Ontarians with
Disabilities Act,69 and intended for individuals who received written instruction
for physical therapy from a regulated health professional and who could not
engage in physical activity elsewhere. The Health Services Appeal and Review
Board (HSARB) determined that the centre had failed to establish that it met the
criteria for the disability exception. The centre further argued that the Order
offended s. 15 of the Charter because it made an exception for people with
physical conditions, but not mental health disabilities. The Board rejected this
argument as well, on the basis that physical therapy is not prescribed for mental
health disorders. Another Board member found that s. 15 only applied to
physical persons, not corporations.
In Hudson’s Bay Company ULC v. Ontario (Attorney General) 70 there was a
challenge to how Ontario handled the reopening of businesses. Under the
Reopening Ontario Act, 2020 (‘‘ROA”),71 the Ontario government made
regulations that restricted the operation of retail businesses during COVID-19,
including a regulation that certain businesses in specified areas were to close. 72
The applicant, the Hudson’s Bay Company (HBC) was one such retailer and
challenged the section of a regulation that permitted ‘‘discount and big box
retailers selling groceries”73 to open, maintaining that it drew an irrational
66
‘‘As 24 months of pandemic restrictions lift, are Canadians ready — or reluctant — to
let go?”, Angus Reid Institute (March 15, 2022), online: <https://angusreid.org/covid-
restrictions-precautions-masking-trudeau/> [perma.cc/FU8B-E4P8].
67
Supra note 61.
68
Rep Room London Inc. v. Summers (July 23, 2021), Doc. 21-HPP-0042 (Ont.
H.S.A.R.B.).
69
Accessibility for Ontarians with Disabilities Act, S.O. 2005, c. 11.
70
Hudson’s Bay Company ULC v. Ontario (Attorney General), 2020 ONSC 8046, 2020
71
Reopening Ontario (A Flexible Response to COVID-19) Act, S.O. 2020, c. 17.
72
Rules for Areas in Shutdown Zone and at Step 1, O. Reg. 82/20, Schedule 1, s. 1(2).
73
Ibid., at Schedule 2, s. 2(1)3.
60 [43 N.J.C.L.]
distinction between its stores and stores such as Walmart since, other than
groceries, the merchandise sold by both stores was essentially the same. The
applicant applied for judicial review seeking a remedy that would allow its 16
stores in specified regions to reopen.
The application for judicial review was dismissed. O. Reg. 82/20 is intra vires
because it is authorized by a grant of authority from the ROA and is related to
the purposes of the ROA.
On March 23, 2020, Ontario ordered the closure of all non-essential
businesses through O. Reg. 82/20 under the Emergency Management and Civil
Protection Act (‘‘EMCPA”).74 On July 24, 2020, the ROA,75 came into force, and
all ECMPA orders and regulations were continued under the ROA. On
November 23, 2020, O. Reg. 82/20 was amended to limit the type of retail
stores that were allowed to open in specified areas.76 Specifically, big box stores
that do not sell groceries were not allowed to open, but those that sold groceries
could open and sell all types of merchandise.
Successfully challenging regulations as ultra vires requires that ‘‘they be
shown to be inconsistent with the objective of the enabling statute or the scope of
the statutory mandate”.77 As such, the court held that O. Reg. 82/20, as well as
the provision allowing big box stores that sell groceries to remain open, was
authorized by the statutory grant of authority. The court ruled that the provision
was consistent with the purpose of the ROA, namely, to provide a flexible
approach to balancing the health and safety of Ontarians during the pandemic
against the province’s economic and business interests.
The inclusion of big box retailers selling groceries was about giving members
of the public access to additional retail venues for buying groceries. That the
restriction allowed people to buy more than necessary goods does not mean, on
its own, that the provision does not fall within the purpose of the ROA. Even
though the operation and effect of the regulation may seem unfair to the
applicant and other retailers in a similar position, unfairness is not a legal ground
to challenge a regulation. Therefore, the court ruled that the regulation was intra
vires. This is a very different situation from Roncarelli c. Duplessis where then
Premier Duplessis attempted to use a liquor licensing statute to punish a
supporter of the Jehovah’s Witnesses.78
74
Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9.
75
Supra note 71.
76
The purpose of the ROA was to move toward the reopening of Ontario while retaining
the flexibility to adapt to changing circumstances in different regions over time. A
colour-coded framework was introduced on November 3, 2020, which provided for the
designation of regions. ‘‘Stage 1” denotes the hardest-hit areas.
77
Shoppers Drug Mart Inc. v. Ontario (Minister of Health and Long-Term Care), 2013
SCC 64, 2013 CarswellOnt 15719, 2013 CarswellOnt 15720, [2013] 3 S.C.R. 810
(S.C.C.) at para. 24.
78
Supra note 9.
(iii) Gathering Restrictions
(A) Private Gatherings

An interesting case of balancing health protection with other valuable
activities is provided in Directeur des poursuites criminelles et peńales c. Roussil-
Chabot.79 An individual stopped in a parking lot when his car broke down and
was helped by other people. He was charged for refusing to obey the order not to
assemble outside within two meters of other people, but was acquitted under an
exception provided for in the ministerial decree, which applied to people who
receive services or support from another person. The court determined that
punishing his actions would be inconsistent with the goal of eliminating frivolous
and non-essential gatherings. This seems like a totally appropriate exception and
an excellent example of applying the rule of law by way of statutory
interpretation. Ingram v. Alberta (Chief Medical Officer of Health)80 also
challenged gathering restrictions in private residences but the complainants failed
in their attempt to get an interlocutory injunction. They also failed in this same
Alberta case to establish Charter breaches of religious freedom under s. 2(a)
based on mandatory mask restrictions. This case is considered above.
(B) Religious Worship
In Springs of Living Water Centre Inc. v. The Government of Manitoba 81 the
applicant church based in Manitoba, transitioned to a drive-in church program
where members could remain in their vehicles while worship services were offered
on stage and projected onto a large screen, while also available on Facebook and
YouTube. The church was served with a provincial offence notice alleging that it
was in contravention of orders made pursuant to the Public Health Act,82
namely, orders prohibiting people from assembling in groups of more than five
and mandating the closure of churches and other places of worship to the public.
The church claimed that the restriction violated the s. 2 Charter protected
freedoms of religion, peaceful assembly, and association. The application was
dismissed because the applicant church failed to meet the high onus as laid out in
the test that must be met in order to obtain the injunction they requested.
Specifically, the applicant church failed to demonstrate that it would suffer
irreparable harm if the injunction were not granted. Congregants were able to
practice their religion by attending remote services, and the applicant church
brought no evidence as to why being in a car was necessary for religious worship.
As well, the applicant church did not demonstrate that it was favoured by a
79
Directeur des poursuites criminelles et peńales c. Roussil-Chabot, 2021 QCCQ 593, 2021
CarswellQue 1911 (C.Q.).
80
Supra note 61.
81
Springs of Living Water Centre Inc. v. The Government of Manitoba, 2020 MBQB 185,
2020 CarswellMan 514 (Man. Q.B.).
82
Public Health Act, 2009, C.C.S.M., c. P210.
62 [43 N.J.C.L.]
balance of convenience. The court also found that the drive-in church program
was not in compliance with the Public Health Act because the definition of
‘‘gathering” did not create exceptions for persons who congregated and then
implemented their own self-isolation measures. Furthermore, congregants
attending in cars were persons who assembled for a common purpose. As an
odd additional twist to this case, the groups’ lawyers put the judge and other
justice officials under surveillance, and as a result were investigated by the
relevant Bar Society.
Another interesting case on restrictions on religion is Beaudoin v. British
Columbia83 from November 2020. The Public Health Officer of British Columbia
announced, in November 2020, a temporary province-wide ban on all in-person
gatherings in November 2020. Religious petitioners requested reconsideration
and were given a conditional variance allowing outdoor weekly worship services.
The petitioners asserted that their ss. 2(a), (b), (c) and (d), 7, and 15 Charter
rights were infringed by the Order and reconsideration. Ultimately, the religious
petitioners did not satisfy the court that they were entitled to challenge the
Orders on judicial review, and even if they could, the infringement of their s. 2
Charter rights was justified under s. 1, because the restrictions were based upon a
reasonable assessment of the risk of transmission during religious and other types
of gatherings. The restrictions therefore fell within a range of reasonable
outcomes.
While many of the cases protesting limits on religious gatherings arose in
western Canada, they have also emerged in other provinces. There were some
challenges in Atlantic Canada and in central Canada as well. One such example
is Toronto International Celebration Church v. Ontario (Attorney General). 84 The
Church, which can hold 1,000 people, brought an application to strike down an
Ontario Regulation which restricted in-person attendance of religious services to
a maximum of 10 people, on the basis that it infringed freedom of religion under
s. 2(a) of the Charter. The applicant sought an interim injunction, pending the
hearing of its Charter challenge, to permit religious services with a 30% capacity
restriction in compliance with Ontario’s Stage 2 regulation, despite being in Stage
1. The court dismissed the application. While there was a serious issue to be
decided, and the Church would suffer irreparable harm due to the fact that the
majority of the Church’s over 1,500 members would not be able to participate in
prayer and fellowship, the balance of convenience favoured the public over the
applicant. The court concluded that granting the injunction would cause greater
harm to public safety than the harm to religious freedoms caused by dismissing
the application.
Another challenge arose in Quebec in Conseils des juifs hassidiques du Que´bec
c. Procurer geńe´ral du Que´bec.85 After several arrests for illegal gatherings, the
83
Beaudoin v. British Columbia, 2021 BCSC 512, 2021 CarswellBC 801 (B.C. S.C.).
84
Toronto International Celebration Church v. Ontario (Attorney General), 2020 ONSC
8027, 2020 CarswellOnt 18986 (Ont. S.C.J.), additional reasons 2021 CarswellOnt 4041
(Ont. S.C.J.).
applicants, Conseil des juifs hassidiques du Québec (the Council of Hasidic Jews
of Quebec), challenged a ministerial decree which provided that a maximum of
10 people could attend a place of worship. The court determined that the alleged
infringement on the freedom of religion was constitutional, but granted the
request for the applicants by rejecting the government’s interpretation of the
decree. Their interpretation did not allow simultaneous gatherings in several
rooms at the same address, even where there were separate entrances and no
common areas. Rather, the court determined that the decree applied to each
room of a building served by independent access to the street, without sharing
common space with other rooms. By a creative use of statutory interpretation,
the court offered a remedy without entering more stormy constitutional waters.
Religious gatherings were also a hot issue in the United States. In South Bay
United Pentecostal Church et al. v. Newsom et al. in May 2020, the Supreme
Court of the United States declined to block California’s limit on attendance at
places of worship.86 The majority did not issue an opinion, but Chief Justice
Roberts in a concurring opinion emphasized that the Constitution ‘‘principally
entrusts the safety and the health of the people to the politically accountable
officials of the States,”87 whereas Justice Kavanaugh argued that the policy
discriminated against religious service insofar as it treated them differently from
other secular activities.
In a follow up case in July 2020, Calvary Chapel Dayton Valley v. Sisolak,
The court again denied a petition to block the state’s limit on gatherings at places
of worship in a 5-to-4 vote.88 While no majority opinion was provided, the four
dissenting justices argued that the order treated casinos more favourably than
places of worship, therefore discriminating against religion.
A different approach prevailed in Roman Catholic Diocese of Brooklyn v.
Cuomo, in November 2020.89 In another 5-to-4 vote, the U.S. Supreme Court
went against their previous decisions and temporarily enjoined limits on in-
person religious gatherings imposed by New York Governor Cuomo. By the time
this challenge was heard, the composition of the court had changed as Justice
Ruth Bader Ginsberg had died and was replaced by Justice Amy Coney Barrett,
an appointee of former President Donald Trump. The majority in this case
argued that the plaintiff’s rights to free exercise of religion had most likely been
violated insofar as the Governor’s order singled out places of worship without
imposing the same restrictions on stores, factories, and schools. In dissent,
Justice Breyer argued that epidemiological evidence showed that in-person
85
Conseil des juifs hassidiques du Que´bec c. Procureur geńéral du Que´bec, 2021 QCCS
1521, 2021 CarswellQue 6504 (C.S. Que.), leave to appeal refused 2021 CarswellQue
6423 (C.A. Que.).
86
South Bay United Pentecostal Church et al. v. Newsom et al., 590 U.S. ____ (2020).
87
Ibid., at 2.
88
Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. ____ (2020).
89
Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ____ (2020).
64 [43 N.J.C.L.]
worship posed a greater risk than other activities, and for this reason, the court
should defer to state officials. The dissenting justices focused on the scientific
health evidence and deferred to the judgment of the elected officials. Notably, the
gathering limits were no longer in place by the time the ruling was issued.
(C) Public Protests
Beaudoin v. British Columbia discussed earlier in respect to masks, also
touched on public protests.90 Counsel for the province had conceded in oral
submissions that the ss. 2(c) and (d) Charter rights of one organizer who had
planned public protests were violated; as such, tickets issued against him were of
no force and effect, and the Province also conceded in oral submissions that the
orders prohibiting outdoor gatherings for public protests were of no force and
effect.
Nova Scotia (Attorney General) v. Freedom Nova Scotia provides an
illustrative example of the limits of dissent during the pandemic. 91 An anti-mask
protest organized by a group called ‘‘Freedom Nova Scotia” was scheduled to
take place in May 2021. Historically, gatherings organized by this group have not
complied with COVID-19 Emergency Health Orders mandated by the provincial
Health Protection Act,92 specifically those relating to public gatherings which
include masking requirements, attendance limits for indoor and outdoor
gatherings, and minimum physical distancing requirements. The province
sought a quia timet injunction ordering compliance with the Health Protection
Act; enjoining Freedom Nova Scotia from organizing in-person public
gatherings; and authorizing law enforcement measures to ensure compliance
with the Health Protection Act.
The injunction was granted on an ex parte basis as the Province
demonstrated the five elements required for a quia timet interlocutory
injunction: (1) a serious question to be tried; (2) that the applicant will suffer
irreparable harm if the injunction is not granted, in this case, the substantial risk
of COVID-19 transmission; (3) that the balance of inconvenience lies in favour of
the applicant, with the court holding that ‘‘there is a greater public interest in
maintaining integrity of the current Public Health Order and the restrictions set
out therein, than permitting the rally to be carried out as planned”; (4) a high
degree of probability that the alleged harm will occur, in this case, at the anti-
mask rally and at similar events; and (5) that the harm is about to occur
imminently or in the near future.93 In June, the injunction was lifted by the
Supreme Court of Nova Scotia after the provincial government requested its
removal upon the decline of COVID-19 infections.94
90
Supra note 83.
91
Nova Scotia (Attorney General) v. Freedom Nova Scotia, 2021 NSSC 170, 2021
CarswellNS 338 (N.S. S.C.).
92
Supra note 23.
93
Ibid., at paras. 27-32.
On January 28, 2022, Nova Scotia issued a directive under the Emergency
Management Act prohibiting protesters from blockading, stopping, or gathering
alongside Highway 104, the Nova Scotia-New Brunswick border, or at the
Cobequid Pass toll area, in support of the so called 2022 ‘‘Freedom Convoy”, the
Atlantic Hold the Line event, or other such events organized to interfere with
traffic.95 The province citied a risk to the safety of those who gather and highway
users as the reason for the directive. Individuals who failed to comply with the
directive, as well as those who financed, organized, aided, or encouraged
blocking the highway were subject to fines. This directive was largely effective at
preventing protestors from interfering with the flow of traffic.
Kristopher Kinsinger makes an interesting analysis of public protests in the
context of a health crisis.96 The Supreme Court of Canada has not yet articulated
a framework within which freedom of peaceful assembly claims are to be
resolved. Courts have historically assessed assembly-related claims through the
lens of s. 2(b)’s parallel guarantee of freedom of expression. Kinsinger argues
that s. 2(c) will be engaged when the following conditions are met: (1) the
claimant must have sought to participate in a gathering of two or more people
for a common purpose; (2) this gathering must have been peaceful (i.e., non-
violent in nature); and (3) interference with this gathering must have been neither
trivial nor insubstantial. Under this test, there is a strong case to be made that
public health restrictions on physical gatherings during a pandemic will result in
a prima facie restriction on s. 2(c). Impacted activities like public demonstrations
and religious services will go further to the core of the affected freedoms than
activities like dinner parties, and thus result in a greater degree of intrusion.
Finally, the author goes through the Oakes test97 and concludes that limitations
on core assemblies which observe evidence-based practices shown to reduce
transmission, may in some cases fail to satisfy the minimal impairment or
proportionate effects branches of that test. It is an inherently factual
determination.
(iv) The Freedom Convoy Protest: Balancing Individual and Collective Rights
and the Rule of Law
In the earlier part of this article, I explored the core elements of the rule of
law as a vital principle of our Canadian democracy. I have also discussed how the
rule of law can help Canada respond effectively and reasonably to the challenges
posed by the COVID-19 pandemic. As stated earlier, governments will be judged
94
Nova Scotia v. Freedom Nova Scotia (June 22, 2021), Halifax, Hfx No 506040 (Order
Discharging Injunction).
95
‘‘Highway Border Blockades Banned Under New Order”, Province of Nova Scotia
(January 28, 2022), online: <https://novascotia.ca/news/release/?id=20220128011>
[perma.cc/R9LS-2SVD].
96
Kristopher E. G. Kinsinger, ‘‘Restricting Freedom of Peaceful Assembly During
Public Health Emergencies” (2021), 30 Constitutional Forum 19.
97
Supra note 2.
66 [43 N.J.C.L.]
and held accountable both by their specific actions, but also by what actions they
fail to take.
Both bases of accountability played out in the 2022 ‘‘Freedom Convoy” and
subsequent occupation of downtown Ottawa and significant trade routes across
the country. The 2022 ‘‘Freedom Convoy” may have started as a peaceful (albeit
loud) protest against vaccine mandates and COVID-19 restrictions, but as the
convoy remained in Ottawa for weeks it raised questions about what constitutes
a protest and what are the limits on the right to protest.
The Convoy started as a protest in Vancouver largely against isolation
requirements for unvaccinated truckers upon entry into Canada.98 As the convoy
moved east it gained momentum and morphed into a protest against all vaccine
mandates and COVID-19 restrictions. Supporters of the convoy congregated on
highway overpasses and at truck stops to show their support.99 By the time the
original Vancouver convoy arrived in Ottawa, other convoys of trucks from
across the country had joined.100 When the convoy arrived in Ottawa there was
minimal police presence and protestors had effective free reign. This protest
demonstrates that rights and freedoms associated with protest are complex
issues, often involving conflicting rights of different individuals and
demonstrates the challenges in balancing these conflicting rights.
While the protestors were relying on their constitutional exercise of
individual rights such as their s. 2 rights to freedom of speech, association,
and assembly, many residents of Ottawa resisted the protest, and called on their
collective constitutional rights to security of the person, under s. 7 of the Charter.
The right to security of the person was threatened by physical intimidation by
protestors,101 the presence of swastikas and confederate flags,102 and near non-
stop horn honking. Many residents of downtown Ottawa reported sleepless
nights with constant disruptions from the noise, ultimately filing a class action
suit.103
98
‘‘Requirements for truckers entering Canada in effect as of January 15, 2022”,
Government of Canada (January 13, 2022), online: <www.canada.ca/en/public-health/
news/2022/01/requirements-for-truckers-entering-canada-in-effect-as-of-january-15-
2022.html> [perma.cc/XD8E-VHL7].
99
Kate Dubinski, ‘‘Trucker convoy against vaccine mandates rolls through Ontario en
route to Ottawa”, CBC News (January 27, 2022), online: <https://www.cbc.ca/news/
canada/london/trucker-protest-convoy-southwestern-ontario-1.6329118> [per-
ma.cc/4W9Q-K6NY].
100
Ibid.
101
Salmaan Farooqui, ‘‘Some journalists face harassment, assault while reporting on
convoy protests, group says”, The Globe and Mail (February 20, 2022), online:
<https://www.theglobeandmail.com/canada/article-some-journalists-face-harass-
ment-assault-while-reporting-on-convoy/> [perma.cc/YKX8-9AMA].
102
Rob Gillies, ‘‘Swastikas and public urination: anti-vaccine protest draws outrage in
Canada”, PBS News Hour (February 1, 2022), online: <https://www.pbs.org/
newshour/world/swastikas-and-public-urination-anti-vaccine-protest-draws-out-
rage-in-canada> [perma.cc/XNZ2-ZV8X].
Balancing these conflicting rights proved challenging for governments

needing to be both proactive in protecting health and safety, while still
respecting all constitutional rights. To strike the right balance was a major
challenge and one the Ottawa police failed to achieve. The major framework to
assist governments in attempting to strike the proper balance is s. 1 of the
Charter, requiring the demonstration of reasonable limits in a free and
democratic society on the other Charter rights. Section 1 also provides the
standard that will ultimately be applied by the courts when government actions
are challenged. Even in normal times it is difficult to draw the line between the
free exercise of individual rights and the reasonable limits that are necessary to
the democratic operation of our society. It is even more complex in pandemic
times.
Striking the right balance is even more challenging in times of crisis as
presented in the menacing form of the persistent COVID-19 pandemic. The
federal and provincial governments must uphold the individual constitutional
rights of its citizens, such as those to peaceful and lawful protest in s. 2, even in
the context of an emergency. However, governments must also discharge their
other responsibilities to protect the health and welfare of Canadians such as
ensuring that residents of Ottawa are safe. This is part of the front-line challenge
the police confronted as they responded to protests. The free and democratic
Canada to which we should and generally do aspire, is one that is both respectful
of individual constitutional rights but is also, caring and compassionate by
protecting the health and well-being of all its citizens.
While the convoy protestors asserted their individual s. 2 Charter right to
protest, they did so at the peril of the more collective rights of Ottawa residents’
rights to security of the person and more generally an ordered community.
Governments have the challenge of balancing both the individual and collective
components of the Constitution. This is at the heart of the COVID-19 challenge
to the rule of law. In addition to emphasizing the obligation on governments to
respect both the individual rights and their limits within the Constitution, the
Ottawa protest also emphasized the responsibilities of individual protesters and
organizers to protest in ways that do not harm others. The exercise of individual
rights under the Charter can be justifiably limited if those individual rights harm
others. Therefore, there are obligations on the protesters to protest in peaceful
and lawful ways.
One of the necessary limits on the right to protest includes not interfering
with the freedoms and rights of others. Responsibilities are the flip side of the
rights coin. A one sided and simplistic version of constitutional freedom that is
not supported by the language of the Charter, is at the heart of this very divisive
Ottawa protest. One of the core principles of the rule of law is that laws apply to
everyone. Like the COVID-19 restrictions imposed by governments, the exercise
of individual rights, such as protest, must operate within the rule of law.
103
Zexi Li v. Chris Barber et al. (February 4, 2022), Doc. Ottawa CV-22-00088514-00CP
(Statement of Claim).
68 [43 N.J.C.L.]
One way to apply the above analysis is to explore the nature of the
“freedom” the Ottawa convoy is advocating. One has to consider whose freedom
the protestors are really talking about. To do that we need to determine the
stated and unstated purposes of the protest, who was really behind it, and the
role of funding, and the external influences of right-wing extremist groups and
others both within and beyond Canadian borders.
The above analysis frames the “freedom” the Ottawa convoy is advocating as
an individualistic freedom. Many protestors argue that losing their jobs, denial of
entry to different parts of society (such as restaurants or gyms), and the
purported lack of choice to get vaccinated are all violations of their freedoms,
because it limits them or demands something from them. However, unless the
analysis of ‘‘freedom” also incorporates a broader perspective including
protecting civil institutions, namely hospitals and public health resources, then
the analysis of ‘‘freedom” is incomplete. In Canada, much of the freedom we
enjoy comes from the collective benefits delivered by these civil institutions.
As Jo-Ann Roberts argues, the convoy is about the state of Canadian
democracy more than it is about the pandemic or public health restrictions. 104
One of the early demands of Canada Unity, a group responsible for some aspects
of the Ottawa ‘‘Freedom Convoy” protest, was that the Governor General and
the Senate, along with members of Canada-Unity, take over governing the
country unless all the COVID-19 mandates were ended.105 Putting aside the lack
of constitutional basis for such a scheme, the demand itself demonstrates a lack
of faith in the government and democratic institutions more broadly. This
ridiculous demand was later withdrawn.
The ‘‘Freedom Convoy” raised over 10 million dollars on the crowd funding
website GoFundMe. The site later paused fundraising as it ‘‘review[ed the
fundraiser] to ensure it complies with our terms of service and applicable laws
and regulations”.106 GoFundMe ultimately did not release most of the funds to
the organizers, but understanding how well funded the convoy was is an
important consideration in evaluating the impact on the rule of law. After
GoFundMe announced they would not release the funds, organizers changed
hosts to GiveSendGo, a Christian crowdfunding website with a history of
funding right wing extremism. This funding platform stated they would defy
court orders preventing the distribution of the funds.107 While many protests end
104
Jo-Ann Roberts, ‘‘Lament for alienation: Freedom Convoy symptom of much deeper
problem”, SaltWire (February 3, 2022), online: <www.saltwire.com/cape-breton/
opinion/jo-ann-roberts-lament-for-alienation-freedom-convoy-symptom-of-much-
deeper-problem-100687609> [perma.cc/Y8KS-GDX7].
105
‘‘Memorandum of Understanding”, Canada Unity (2022), online: <https://canada-
unity.com/wp-content/uploads/2022/01/Combined-MOU-Dec03.pdf> [perma.cc/
4XPF-Z6QD].
106
‘‘Freedom Convoy 2022”, GoFundMe (February 4, 2022), online: [perma.cc/92YH-
VLKR].
107
Paul P. Murphy & Paula Newton, ‘‘Crowd fundraising site says they will defy Canadian
relatively quickly, because the ‘‘Freedom Convoy” was so well funded, it could
provide fuel and supplies to protestors for weeks.
This allowed a sort of proxy-protest, where supporters of the protest could
ensure the social and civil damage from the protest without having to physically
join the protest itself. Perhaps most concerningly, while the majority of the
money came from within Canada, over 50% of the number of donations came
from the United States.108 This raises concerns for the rule of law, as it highlights
the potential risk from beyond Canadian borders. The Canadian Security and
Intelligence Service (‘‘CSIS”) had similar concerns about the source of the
funding.109
As the protest wore on, residents of Ottawa who opposed the protest also
started to lose faith in government and democratic institutions. The protestors
remained for weeks and caused major disruptions to life in downtown Ottawa.
While government and police did little to ensure that the rights of residents were
balanced with the rights of protestors, a class action lawsuit was filed by
residents.110 The residents got an injunction against the protestors, prohibiting
them from honking their horns.111 The injunction was successful at reducing
noise levels, but did not fully respond to residents’ concerns. 112 While the protest
continued with less noise, it still caused significant interference with life in
downtown Ottawa.
Similar convoys blocked major infrastructure across the country. The border
crossing in Coutts, Alberta was blocked for several days, and the Ambassador
Bridge in Windsor was blockaded for nearly a week. 113 Eventually the
court order to stop disbursing funds to convoy protesters”, CNN (February 11, 2022),
online: <https://www.cnn.com/2022/02/11/business/givesendgo-trucker-convoy-
protest/index.html> [perma.cc/4UBF-VLNC]; Talia Lavin ‘‘Crowdfunding Hate in
the Name of Christ”, The Nation (April 4, 2021), online: <https://www.thenation.-
com/article/society/givesendgo-crowdfunding-extremism/> [perma.cc/9GJX-
SXYU].
108
Elizabeth Thompson, Roberto Rocha, & Albert Leung, ‘‘Hacked convoy data shows
more than half of donations came from U.S.”, CBC News (February 14, 2022), online:
<https://www.cbc.ca/news/politics/convoy-protest-donations-data-1.6351292>
[perma.cc/J2S8-HD5U].
109
Phil Gurski, ‘‘Canada’s spies were right about the ‘Freedom Convoy”, Ottawa Citizen
(February 21, 2022), online: <https://ottawacitizen.com/opinion/gurski-canadas-
spies-were-right-about-the-freedom-convoy> [perma.cc/42MV-B5T4].
110
Supra note 103.
111
Michael Woods, ‘‘Meet the 21-year-old Ottawa woman who stopped the horns”, CTV
News (February 8, 2022), online: <https://ottawa.ctvnews.ca/meet-the-21-year-old-
ottawa-woman-who-stopped-the-horns-1.5772637> [perma.cc/2J2D-KPUD].
112
Nicole Williams, ‘‘The trucks have left Ottawa, but ’phantom honking’ lingers for
many downtown”, CBC News (February 26, 2022), online: <https://www.cbc.ca/
news/canada/ottawa/convoy-protest-phantom-honking-1.6363104> [perma.cc/
H22R-YZT6].
113
Michael Rodriguez, ‘‘Mounties arrest 13 ’militant’ protesters after guns, body armour
70 [43 N.J.C.L.]
Automotive Parts Manufacturers’ Association (APMA) filed for an injunction

against the blockade, in part because of the significant financial toll the bridge
closures caused. It is estimated that the bridge closure cost the Canadian
economy three billion to six billion dollars in lost trade.114 The bridge was
cleared before the injunction took effect, but the same cannot be said for the
convoy in Ottawa.
On February 14, 2022, the Trudeau government announced it planned to use
the Emergency Measures Act (“EMA”).115 Once invoked, the government would
be able to freeze the assets of protestors. Participating in any protest that could
disrupt the movements of goods and people, interfering with critical
infrastructure, or supporting violence were all prohibited.116 The EMA had
never been invoked before.117 Its predecessor, the War Measures Act had only
been used three times in history, during World War I, World War II, and used by
the former Prime Minister Pierre Trudeau in 1970 during the October FLQ
Crisis.118 On February 23, 2022, Prime Minister Justin Trudeau announced the
government would revoke the emergency declaration, and debate in the Senate
was halted, citing that the situation was no longer an emergency.119 Despite this,
seized at Coutts blockade”, Calgary Herald (February 14, 2022), online: <https://
calgaryherald.com/news/local-news/mounties-arrest-11-armed-militant-protesters-
at-coutts-blockade> [perma.cc/EMR9-QPNZ]; ‘‘Judge grants injunction aimed at
ending Ambassador Bridge blockade in Windsor, Ont.”, CBC News (February 11,
2022), online: <https://www.cbc.ca/news/canada/windsor/ambassador-bridge-in-
junction-ruling-1.6348767> [perma.cc/544Z-5PQZ]; Automotive Parts Manufactur-
ers’ Association v. Jim Boak et al. (February 11, 2022), Doc. Windsor CV-22-00030791-
0000 (Order).
114
Jennifer La Grassa, ‘‘Ambassador Bridge blockade stalled billions in trade — and there
could be other effects: expert”, CBC News (February 15, 2022), online: <https://
www.cbc.ca/news/canada/windsor/ambassador-bridge-protest-cost-1.6351312>
[perma.cc/VA3M-CPNB].
115
Emergency Measures Act, R.S.C. 1985 (4th Supp.), c. 22; Rachel Aiello ‘‘Trudeau
makes history, invokes Emergencies Act to address trucker protests”, CTV News
(February 14, 2022), online: <https://www.ctvnews.ca/politics/trudeau-makes-his-
tory-invokes-emergencies-act-to-deal-with-trucker-protests-1.5780283> [perma.cc/
AK7K-8RFF]. This Act replaced the War Measures Act, R.S.C. 1985, c. W-2 as
repealed by Emergencies Act, R.S.C. 1985 (4th Supp.), c. 22.
116
James Bradshaw and Bill Curry, ‘‘Emergencies Act will expand powers of Canadian
banks to freeze accounts, halt funds”, The Globe and Mail (February 14, 2022), online:
<https://www.theglobeandmail.com/business/article-emergencies-act-powers-to-
broaden-scope-of-anti-money-laundering-rules/> [perma.cc/PX9R-PV4T].
117
Catharine Tunney, ‘‘Federal government invokes Emergencies Act for first time ever in
response to protests, blockades”, CBC News (14 February 2022), online: <https://
www.cbc.ca/news/politics/trudeau-premiers-cabinet-1.6350734> [perma.cc/FJ5P-
QN2M].
118
Amir Attaran & Kumanan Wilson, ‘‘A Legal and Epidemiological Justification for
Federal Authority in Public Health Emergencies” (2007), 52 McGill LJ 381 at para. 93.
119
Nick Boisvert, ‘‘Trudeau ends use of Emergencies Act, says ’situation is no longer an
the CCLA has brought an application in federal court challenging the

government’s use of the EMA, although no date has been scheduled for a
hearing.120
In the weeks following the ‘‘Freedom Convoy”, many provinces announced
they would soon be removing all COVID restrictions. While some suspected that
the timing of the convoy must have influenced provincial governments’ decisions,
the science demonstrated that the pandemic was shifting to an endemic and plans
to ease restrictions were already in place prior to the ‘‘Freedom Convoy”.
Moreover, even when the Alberta Government announced when they were going
to remove all restrictions, the protests continued. This is a strong example that
while the timing overlapped, the convoy did not directly influence the ending of
restrictions. However, these 2022 protests against the COVID-19 restrictions did
provide a major test of the rule of law in Canada. It passed the test, but not
without casualties along the way.
(v) Dissent and Free Speech
In R. v. Skelly,121 the Ontario government issued a lockdown order in
November 2020 that prohibited indoor and outdoor dining at restaurants. The
accused owned three barbecue restaurants in Toronto, and the day after the
order was issued, announced on social media that he would be opening for
indoor dining in protest against the lockdown measures, following which a large
crowd attended one of his locations. Toronto Public Health officers laid charges
against the accused, and he was later arrested and charged. The accused was
released on consent under several conditions, one of which was that he would not
post or communicate on any Internet social media platform.
The court determined that this social media condition was an error of law
because it was too broad a ban on all forms of expression. This was determined
to be incompatible with the principle of restraint, including legitimate forms of
expression on social media, such as the expression of a political view about the
lockdown measures or advertising a lawful takeout business. The court
nonetheless determined that there must be some curtailment of the accused’s
ability to use social media. While freedom of expression is a critical value, it is a
value that must be balanced with the rule of law. The court asked counsel to
draft the conditions of release so that the accused would be free to use social
media for ordinary purposes such as advertising his business and expressing his
political views, but prohibited him from using social media to publicize, organize,
or incite breaches of the law. This strikes me as the kind of careful judicial
balancing of rights that is needed.
emergency’”, CBC News (23 February 2022), online: <https://www.cbc.ca/news/

politics/trudeau-event-feb23-1.6361847> [perma.cc/C9YW-9EKY].
120
Canadian Civil Liberties Association v. Canada (Attorney General) (February 18, 2022),
Doc. Toronto T-316-22 (Notice of Application).
121
R. v. Skelly, 2021 ONSC 555, 2021 CarswellOnt 1096 (Ont. S.C.J.).
72 [43 N.J.C.L.]
(vi) Proposed Vaccination Tax

On January 11, 2022 Quebec Premier François Legault indicated that
unvaccinated Quebecers without a medical exemption would be required to pay a
‘‘Vax Tax”. Premier Legault noted that the tax was going to be significant
enough to give Quebecers an incentive to get vaccinated. He also indicated that
the tax would be in the range of 50 to 100 dollars. Legault said details would be
revealed “in the coming weeks”.122 Three weeks later, Premier Legault stated the
proposed tax would not be implemented citing “growing discontent” with the
proposal.123 If the tax had gone into effect, it likely would have been challenged
under s. 7 of the Charter. However, the tax does not physically infringe on the
right to life, liberty, or security of the person, but rather imposes economic
consequences on individuals who choose not to get vaccinated. Since the Charter
generally does not protect against economic and property rights, it is possible, as
lawyer Jean-Philippe Groleau notes, a court might have upheld the tax. 124
Interestingly, Austria fines individuals who choose not to get vaccinated
approximately 5,150 dollars every three months. Singapore, which also has a
universal health care system, bills unvaccinated patients for hospital stays related
to COVID-19.125
(vii) Curfews and Lockdowns
In Desrochers c. Procureur geńe´ral du Que´bec,126 the applicant filed an appeal
for judicial review challenging a ministerial decree from January 2021, which
instituted a curfew between the hours of 8pm and 5am. The applicant argued that
the curfew had no rational connection with the protection of the public insofar as
it prohibited walking, running and driving alone or with people living at the same
122
Verity Stevenson & Isaac Olson, ‘‘Unvaccinated Quebecers will have to pay a health
tax, Legault says”, CBC News (January 11, 2022), online: <https://www.cbc.ca/news/
canada/montreal/unvaccinated-health-contribution-quebec-1.6311054> [perma.cc/
CH2X-6QJY].
123
Ainslie MacLellan & Laura Marchand, ‘‘Quebec scraps planned tax on the
unvaccinated”, CBC News (February 1, 2022), online: <https://www.cbc.ca/news/
canada/montreal/vax-tax-nixed-1.6334828> [perma.cc/N7U5-8CYX].
124
Zena Olijnyk, ‘‘Proposed Quebec tax on unvaccinated likely is within rights of province
to impose: Davies lawyer”, Canadian Lawyer Magazine (January 25, 2022), online:
<https://www.canadianlawyermag.com/practice-areas/tax/proposed-quebec-tax-on-
unvaccinated-likely-is-within-rights-of-province-to-impose-davies-lawyer/363449>
[perma.cc/KV5U-7GED].
125
‘‘Taxing the Unvaccinated: Evidence, Ethics and Policy Implications”, MacEachen
Institute for Public Policy and Governance (January 28, 2022), online: <https://
www.dal.ca/dept/maceachen-institute/events/Vaccine-Mandates-Panel.html> [per-
ma.cc/UH8W-6K8V].
126
Desrochers c. Procureur geńe´ral du Que´bec, 2021 QCCS 311, 2021 CarswellQue 1338
(C.S. Que.), leave to appeal refused 2021 CarswellQue 2038 (C.A. Que.), leave to appeal
refused William Desrochers v. Attorney General of Quebec, 2022 CarswellQue 2427,
2022 CarswellQue 2428 (S.C.C.).
address. He therefore requested a stay of the decree. The court dismissed the
application because it was not satisfied that the balance of convenience favoured
granting the stay. It determined that the decree was adopted in the public
interest, in that it aims to protect the population from the spread of the virus, and
that it was not for the court to determine the advisability of the administrative
decision. This is a clear case of judicial deference to the front-line administrators
in handling the health crisis. On March 10, 2022, The Supreme Court of Canada
dismissed Desrochers’ leave to appeal without reasons.127
There are other challenges to the Quebec curfew as well. A factum has been
filed with the Superior Court of Quebec in Marc-Boris St. Maurice v. Le Procurer
general du Quebec and Procurer general du Canada.128 The lawyers for the
applicant in this case make a comprehensive analysis of the law and what they
argue are its constitutional problems. This case will be an argument on the merits
of the claims and not just a stay or an injunction case, as in some earlier
challenges. This case should be proceeding soon and is an important one to
watch.
(viii) Travel
Earlier in this article I discussed Taylor v. Newfoundland and Labrador,129 the
case where Ms. Taylor was prevented from attending her mother’s funeral
because of the relevant COVID-19 restrictions. At that juncture, I explained that
the challenge — alleging that Newfoundland and Labrador exceeded its
provincial powers — was rejected. I will now turn to the Charter challenges
raised by Ms. Taylor and why they were also rejected. The purposes for the travel
restrictions were broadly stated.
Section 5 of the Public Health Protection and Promotion Act (‘‘PHPPA”)
identifies its purpose:
5. The purpose of this Act is to
(a) promote the health and well-being of individuals and commu-
nities;
(b) protect individuals and communities from risks to the health of
the population;
(c) prevent disease, injury and disability;
(d) provide a healthy environment for individuals and commu-
nities;
(e) provide measures for the early detection and management of
risks to the health of the population, including monitoring of a
disease or health condition of significance;
(f) improve the health of the population and of vulnerable groups;
and
127
Ibid. (for more commentary on curfews and lockdowns, see I. Rule of Law and Authority
for Restrictions Limiting Rights, 1. People Experiencing Homelessness, above).
128
Marc-Boris St. Maurice v Le Procurer general du Quebec (2021) hearing pending.
129
Supra note 24.
74 [43 N.J.C.L.]
(g) promote health equity within the population by addressing the

social determinants of health.130
Section 28(1)(h) of the PHPPA provides that while a declaration of a public
health emergency is in effect, the Chief Medical Officer of Health may make
orders restricting travel to or from the province for the purpose of protecting the
health of the population and preventing, remedying, or mitigating the effects of
the public health emergency. On the Charter issues, the court held that Ms.
Taylor’s s. 7 Charter-protected right to liberty was not engaged, and although
Ms. Taylor’s s. 6 mobility right had been infringed, the violation was justified
under s. 1 of the Charter.
On the s. 7 Charter issue, the court determined that s. 28(1)(h) did not engage
Ms. Taylor’s s. 7 Charter protected right to liberty. This is because finding that s.
7 was engaged would effectively make s. 7 synonymous with s. 6 mobility rights,
which would produce incoherence, since s. 7 applies to anyone in Canada
whereas s. 6 only applies to Canadian citizens. Even if this conclusion were
wrong, the court still would find that s. 7 was not engaged because Ms. Taylor’s
decision to attend her mother’s funeral does not rise to the level of a
‘‘fundamental personal choice” that attracts constitutional protection.
The other Charter section argued was s. 6 which guarantees basic mobility
rights to Canadian citizens. This section reads as follows:
Mobility Rights
(1) Every citizen of Canada has the right to enter, remain in and leave
Canada.
(2) Every citizen of Canada and every person who has the status of a
permanent resident of Canada has the right
(a) to move and to take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a
province other than those that discriminate among persons
primarily on the basis of province of present or previous
residence; and
(b) any laws providing for reasonable residency requirements as a
qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or
activity that has as its object the amelioration in a province of
conditions of individuals in that province who are socially or
economically disadvantaged if the rate of employment in that
province is below the rate of employment in Canada.
The court held that Ms. Taylor’s s. 6 mobility rights had been infringed
because the right to remain in Canada under s. 6(1) includes the right to move
within Canada. However, the violation was justified under s. 1. The restriction on
travel related to a pressing and substantial objective insofar as it aimed to protect
130
Public Health Protection and Promotion Act, S.N.L. 2019, c. P. 37.3, s. 5.
the population of the province from imported COVID-19 cases. Further, the
court held that the travel restriction was rationally connected to this purpose,
since mathematical modelling demonstrated that the restriction was an effective
means through which to contain the virus. The court also held that the restriction
did not impair the right more than necessary to achieve the objective, here
deferring to the Chief Medical Officer of Health’s precautionary decision-
making. Finally, the salutary effects of the measure did not outweigh its
deleterious effects, because the collective benefit of the whole must prevail over
the mental anguish to some. The restriction, thus, represented a reasonable limit
on the right to mobility.
In Monsanto v. Canada (Health) the applicant is a Canadian who, after
spending one day in the United States for purposes related to his employment
with a media outlet covering the presidential campaign, re-entered Canada on
November 2, 2020.131 Pursuant to the federal Quarantine Act, anyone who enters
Canada must quarantine themselves for 14 days.132 An officer of the Canadian
Border Services Agency refused to exempt the applicant from the quarantine
requirement, despite the applicant’s position that because travelling briefly across
the border was a part of his everyday course of work, he fell under a quarantine
exception for habitual residents of trans-border communities that must enter the
United States to carry out everyday functions. Subsequently, the applicant filed
an application for judicial review of the officer’s decision to refuse the exemption,
and shortly after, filed an urgent motion for an interlocutory stay or injunction,
seeking to end the ongoing effect of the quarantine order.
The Quarantine Act empowers the Governor in Council, i.e. the Federal
Cabinet, to make emergency orders, including an order under s. 58 which
imposes conditions on entry into Canada on a class of persons who have been in
a foreign country.133 On October 30, 2020, the Governor in Council passed an
iteration of an order originating from March 25, 2020, called the Minimizing the
Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), which
provides at paragraph 3(1)(a) that anyone who enters Canada and does not have
signs and symptoms of COVID-19 must quarantine themselves in accordance
with instructions provided by a screening or quarantine officer for 14 days.
Section 6 of this Act provides exceptions to this order.
First, the court determined that it was not precluded from granting the
remedy requested, given its jurisdiction to issue injunctions and stays under the
Federal Courts Act.134 Second, the court applied the three-stage framework from
RJR-MacDonald to determine whether the injunction was just and equitable,
ultimately concluding that it was not, before dismissing the motion. 135 On the
131
Monsanto v. Canada (Health), 2020 FC 1053, 2020 CarswellNat 5289, 2020
CarswellNat 4916 (F.C.).
132
Quarantine Act, S.C. 2005, c. 20.
133
Ibid., at s. 58.
134
Federal Courts Act, R.S.C. 1985, c. F-7.
76 [43 N.J.C.L.]
first stage of the framework, the court assessed the strength of the merits of the
applicant’s claim, holding that the applicant was unlikely to succeed in
persuading the court that the officer’s interpretation of paragraph 6(n) of the
order was unreasonable insofar as the language of the exception did not, on its
face, suggest that it applied to the everyday functions of all Canadian residents in
the course of their employment. On the second stage, the court considered
whether the applicant would suffer irreparable harm if the injunction were not
granted. The court concluded that the applicant could not rely on irreparable
harm that may be suffered by his employer.
On the third and final stage, the court considered whether the balance of
convenience favoured granting or denying the injunction, based on an assessment
of which party would suffer greater harm from the granting or refusal of the
injunction. The court concluded that although the liberty interest identified by
the applicant was compelling, the evidence that the applicant’s employer may
also suffer was less clear. Moreover, the harm to the public interest weighed
heavily against granting the order that was requested. The court therefore
concluded on the basis of these three stages of the injunction test, that it was just
and equitable not to issue a stay or interlocutory injunction.
(ix) Mandatory Isolation and Quarantine
In Spencer v. Canada (Health), the applicants argued that certain measures
imposed by the federal government on returning international air travelers
violated the Charter.136 The challenged measures were: (1) the requirement to
stay at a government-approved accommodation or designated quarantine facility
while awaiting test results, and (2) mandatory quarantine for the remaining 14
days. Several Charter challenges were raised. Ultimately, the applications were
dismissed. The first argument concerned s. 6 mobility rights and was rejected
because the measures did not encroach upon returning air travelers’ membership
in Canada’s national community.
The second argument concerning s. 7’s life, liberty, and security of the person
rights was also rejected. The extent to which the requirements violated liberty
interests was in accordance with the principles of fundamental justice because
that evidence supported the decision to target returning air travelers. The third
argument that requiring travelers to pay for their stay at government-approved
facilities amounted to unreasonable seizure contrary to s. 8 of the Charter was
rejected because the court had doubts that this amounted to ‘‘taking a thing from
a person without that person’s consent”, but regardless, determined that there is
no reasonable expectation of privacy in money.
The fourth argument that the applicants were arbitrarily detained contrary
to s. 9 was rejected because even though the mandatory stay was a ‘‘detention”, it
135
RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CarswellQue 120F, 1994
CarswellQue 120, 111 D.L.R. (4th) 385, [1994] 1 S.C.R. 311 (S.C.C.).
136
Spencer v. Canada (Health), 2021 FC 1408, 2021 CarswellNat 5843, 2021 CarswellNat
9206 (F.C.). This case is now under appeal.
was reasonable and not arbitrary. The detention was only unreasonable for one
applicant who was not informed where she was being taken. The broad detention
powers of this and other laws dealing with the pandemic are a significant
limitation on individual liberty. Similarly, the argument that the measures had
violated the s. 10(1)(b) rights of the applicants to retain and instruct counsel and
be informed of that right on arrest or detention, was rejected on the basis that
they did not provide direct evidence that the right was breached. The argument
was successful for one applicant who was not informed where she was being
taken. The argument that the s. 11(d) and (e) rights of the applicants to be
presumed innocent until proven guilty was also rejected, on the basis that the
right was not engaged because no one had been charged with an offence. The
argument that the applicants’ right not to be subjected to any cruel and unusual
treatment or punishment was rejected because even if the mandatory measures
constituted ‘‘treatment” as contemplated by s. 12, it did not rise to the very high
threshold required to be considered ‘‘cruel and unusual.”
For the one applicant whose ss. 9 and 10(1)(b) rights had been infringed, the
violation was not saved by s. 1 because the government did not demonstrate that
it was reasonably necessary to refrain from disclosing the location of the
accommodation or inform her of her rights to instruct counsel
For this applicant whose rights had been infringed, the two violations had
already been remedied. The subsequent orders required incoming travellers to
book their own accommodations or be otherwise provided with details about the
facility and the right to retain and instruct counsel. Arguments that these
measures also exceeded both the statutory mandate and s. 91 of the Constitution
Act, 1867137 were also rejected.
No date has been set for the appeal, but on November 3, 2021, the court
directed the parties to provide written submissions addressing whether the appeal
was moot because the government mandated hotel stays were no longer in effect
or weather the court should nevertheless exercise its discretion in favour of
hearing the appeals.138 Both parties made submissions, but no decision has been
made.
(x) COVID Vaccines and Privacy Concerns
In the space remaining in this article, I will briefly address two related legal
issues — COVID-19 vaccines, and privacy. COVID-19 vaccines and the legal
issues related to them could easily be the topic of a whole book, article, or
conference. Indeed, there will be such books, articles, and conferences. There has
been little judicial or administrative guidance on the issues around COVID-19
vaccines to date and once again the law is scrambling to keep pace with the
evolving science. Privacy too is a large and complex issue that permeates many
aspects of governmental responses to this pandemic. The privacy issues implicit
137
Supra note 14.
138
Barbara Spencer et al. v. AGC (June 24, 2021), Doc. Ottawa A-183-21 (Notice of
Appeal).
78 [43 N.J.C.L.]
in contact tracing of people infected with COVID-19 is but one of many

examples. What I say on these two topics below will only begin the important
conversations that will be needed in the days, months, and years ahead.
In the fall of 2021, vaccine passports and mandates became the hottest and
most controversial issues at all levels of society. The controversial and emotional
nature of these vaccine issues continues well into 2022. There are various reasons
for this. First, vaccines are seen as our best hope for returning to a more normal
life and engaging others in ways that are rewarding and safe. While even those
who are double vaccinated are not completely immune from COVID-19, the risk
of serious illness is very low. However, by the time Omicron became the
dominant variant, it appeared that the vaccine offered less protection against
contracting the virus, although it still offered significant protection against
serious illness.139 This seems to be the current (albeit ever changing) status of the
epidemiology. The more time goes on, the more clearly the scientific value of the
COVID-19 vaccines are demonstrated. Furthermore, the risks appear to be
minimal.
Second, the above evolution of the scientific evidence leads to different
people adopting ‘‘their own versions” of what the science says. Professor Lee
McIntyre has written a fascinating little book called Post Truth,140 in which he
argues that people are less concerned about some more objective version of
scientific truth, and more attached to an emotional feeling about what truth suits
them. In his book he traces the role that subjective (inaccurate) versions of
science have played in promoting and selling cigarettes, denying climate change,
and promoting the presidency of former President Donald Trump. The
phenomena that he describes is accentuated by the nature of the internet and
social media, where people can find small pockets of like-minded people to
support just about anything and claim it to be scientific truth. The internet is a
major source of misinformation as well as information.
This is particularly relevant to the hot debates between supporters of
COVID-19 vaccinations and anti-vaxers or people who are vaccine hesitant.
Because the political leaders depend heavily on health officials (led by the Chief
Medical Officer of Health) to provide the evidence base for their decisions, they
have difficulty in dealing with people who have a different view of the scientific
evidence. This can lead to compulsion and mandates as the health of all citizens
is affected by the individual decisions about vaccination. Individual choices can
be limited if they harm others.
This leads to the third reason that the vaccination issues are so contested.
Mandating that employees be vaccinated, requiring proof of vaccination to
139
Shirley Collie et al, ‘‘Effectiveness of BNT162b2 Vaccine against Omicron Variant in
South Africa” (2022), 386:5 N Engl J Med.
140
Lee McIntyre, Post Truth (Boston: MIT Press Essential Knowledge Series, 2018)
(McIntyre is Research Fellow at the Centre for Philosophy and History of Science at
Boston University. He elaborates on his views in his follow-up book: Lee McIntyre,
How to Talk to a Science Denier (Boston: MIT Press, 2021)).
access non-essential services, and requiring people to reveal their vaccination

status (personal health information), is a significant invasion of the privacy and
liberty rights of individuals. For people concerned about state intrusion in the
private lives of people, this looks like a form of tyranny, that they reject. The
problem is that the exercise of free choice to not get vaccinated, negatively
impacts the people around you. Thus, governments, and then courts when the
former are challenged, must balance the rights of individuals, against the
collective rights of others to health and a quality of life, or in some cases, life
itself. This is the societal backdrop for this heated political and legal discussion
about vaccinations. Once again, the freedom of individuals to choose to get
vaccinated can be reasonably limited, if it harms others.
Vaccine mandates are highly controversial and divisive, and the political
leaders in various provinces and at the federal level, have taken different
approaches. These issues were important in recent elections and likely played a
large role in the growth in support for the People’s Party of Canada led by
Maxime Bernier. Even though this party did not get any seats, it garnered more
than 5% of the popular vote. After being re-elected to a minority government in
2021, Prime Minister Justin Trudeau implemented a mandatory vaccine
requirement for employees in all federally regulated workplaces and all
travellers on federally regulated transportation.141
Shortly after Prime Minister Trudeau’s decision, Charter signatory, and
former Newfoundland premier, Brian Pickford and the Justice Centre for
Constitutional Freedoms filed an application for judicial review in the Federal
Court against the Federal Government seeking to remove proof of vaccination
requirements for air travellers. The application alleges that the vaccine
requirement is ultra vires the authority delegated to the Minister of Transport,
under s. 6.41(1) of the Aeronautics Act because the requirement was, as the
application claims, ‘‘made for an improper purpose, and in bad faith in
furtherance of an ulterior motive to pressure Canadians into taking the Covid-19
vaccines.”142
Throughout the fall of 2021, every province and the Yukon also
implemented a passport system, requiring proof of vaccination to enter non-
141
‘‘Mandatory COVID-19 vaccination requirements for federally regulated transporta-
tion employees and travellers”, Transport Canada (October 6, 2021), online:
<www.canada.ca/en/transport-canada/news/2021/10/mandatory-covid-19-vaccina-
tion-requirements-for-federally-regulated-transportation-employees-and-travel-
lers.html> [perma.cc/L6MR-LQGT]; ‘‘Government of Canada will require
employees in all federally regulated workplaces to be vaccinated against COVID-
19”, Employment and Social Development Canada (December 7, 2021), online:
<www.canada.ca/en/employment-social-development/news/2021/12/government-
of-canada-will-require-employees-in-all-federally-regulated-workplaces-to-be-vacci-
nated-against-covid-19.html> [perma.cc/L5T8-RW6L].
142
The Honourable A Brian Peckford et al. v. Canada (Minister of Transportation) and
Canada (Attorney General) (January 27, 2022), Calgary (Notice of Application for
Judicial Review).
80 [43 N.J.C.L.]
essential activities, such as going to restaurants, bars, concerts, movies, and

fitness facilities. Many of these passport systems were challenged in court, such
as in Quebec case Mercier c. Procureur geńe´ral du Que´bec.143 The court did not
find the applicant had presented any convincing proof that the prejudice went
beyond disappointment or inconvenience and there was therefore no violation of
an individual’s rights.144 Similar challenges have been launched in other
jurisdictions across the country, and it is expected that those courts will come
to similar conclusions.145 By mid-March every jurisdiction except British
Colombia and the Federal government had ended their passport system.
Provinces lived up to their promises that the vaccine passports were temporary
and would be eliminated when the risks subside.
This was a highly divisive and contested issue in the United States as well,
but according to a senior editor of the magazine The Atlantic, most Americans
(even Republicans) have gotten over it.146 In fact, this same article suggests that
many Americans are now suing to require mask wearing and vaccinations, in
order to promote their right to not be infected. Furthermore, the American Civil
Liberties Union (ACLU) which argued against vaccine mandates as recently as
2009 in respect to the H1N1 virus, now has refrained from joining any libertarian
challenges to such mandates in respect to COVID-19. This is a dramatic and
significant reversal of position. In the United States as in Canada, public opinion
is sharply divided on vaccine issues.
On January 13, the US Supreme Court ordered a stay of the Federal
Occupational Safety and Health Administration’s (OSHA) COVID-19 “vaccine-
or-test” Emergency Temporary Standard (ETS). The stay is effective until a final
decision is delivered, either by the Sixth Circuit or the Supreme Court. The court
found that OSHA does not have the authority to regulate “broad public health
measures,” finding that such a mandate goes beyond risks in the workplace to a
more general risk that fell outside of OSHA’s mandate. 147
On the same day, the US Supreme Court granted an application to stay two
injunctions that had barred the United States Department of Health and Human
Services (USDHHS) from requiring Medicare and Medicaid facilities to ensure
143
Mercier c. Procureur geńe´ral du Que´bec, 2021 QCCS 4666, 2021 CarswellQue 18378
(C.S. Que.).
144
Ibid., at paras. 82-85.
145
See Awad c. Procureur geńe´ral du Que´bec, 2022 QCCS 654, 2022 CarswellQue 3078
(C.S. Que.); Lachance c. Procureur geńe´ral du Que´bec, 2021 QCCS 4721, 2021
CarswellQue 18406 (C.S. Que.); Harjee et al. v. Ontario (October 15, 2021), Doc.
Toronto CV-21-00670360-0000 (Notice of Application); Sharon K, Veronica S, Erica R
(a minor, by her litigation guardian Stephanie R), and the Canadian Constitution
Foundation v. British Columbia (Provincial Health Officer) (December 22, 2021), Doc.
Vancouver VLC-S-S-2111137 (Notice of Discontinuance).
146
Caroline Mimbs Nyce, ‘‘Vaccine Mandates”, The Atlantic (September 8, 2021), online:
<https://www.theatlantic.com/newsletters/archive/2021/09/the-fight-over-man-
dates-is-different-now/620018/> [perma.cc/YS75-F8FB].
147
National Federation of Independent Business v. OSHA, 595 U.S. ____ (2022).
that their employees are vaccinated against COVID—19. The court found that
USDHHS has the authority to impose conditions on facilities. However,
Congress conferred the ability ‘‘to impose conditions on the receipt of Medicaid
and Medicare funds that [it] finds necessary in the interest of the health and
safety of individuals.” The court went on to note that USDHHS has the
authority to ‘‘require hospital employees to wear gloves, sterilize instruments,
wash their hands in a certain way and at certain intervals, and the like.” While
noting that a vaccine mandate goes beyond measures that the USDHHS has
taken before, the court also noted that COVID-19 is beyond any infection
USDHHS has combatted before.148
Before turning to the relevant law in the Canadian context about vaccine
mandates and passports, I will summarize one of the rare available cases dealing
with the supply of the COVID-19 vaccination and questions of equity.
In Daneshvar v. Her Majesty the Queen in Right of Ontario, 149 the applicant
brought a judicial review application challenging Ontario’s distribution of
COVID-19 vaccines, alleging that the province failed to ensure equitable
distribution given barriers that disproportionately affect certain populations.
The applicant asked for several broad declarations rather than individual relief
with respect to his own circumstances. The application was dismissed because the
Divisional Court did not have jurisdiction to grant the relief sought. The
declarations sought by the applicant did not arise from the exercise, or refusal to
exercise, a statutory power. This shows the deference to the political front lines
that one would expect, especially where the legal arguments were very general.
Mandatory vaccinations in employment raise more justiciable issues. This
setting is likely to spawn many legal challenges in the days ahead. It matters
whether the place of employment is unionized or not, as those employees with
collective agreement protections are more likely to successfully resist such
mandates, than their non-unionized colleagues. In Stuart Murray, Trista
Michaud-Hachey, Tabatha Belding, and Lisa Gorham v. New Brunswick
(Attorney General), Stand 4 Freedom New Brunswick launched an application
challenging the Government of New Brunswick’s vaccine mandate, requiring all
government employees to get vaccinated. The application was dismissed on the
basis that the court lacks jurisdiction to adjudicate labour law disputes, and
instead the applicants must follow the appropriate dispute resolution
mechanisms provided by their collective agreements. 150 In Lavergne-Poitras v.
148
Biden v. Missouri, 595 U.S. ____ (2022).
149
Daneshvar v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 3186, 2021
150
Stuart Murray, Trista Michaud-Hachey, Tabatha Belding, and Lisa Gorham v. New
Brunswick (Attorney General) (November 5, 2021), Fredericton (Notice of Applica-
tion); Alex Cooke, ‘‘N.B. judge dismisses ‘rambling’ application challenging COVID-
19 vaccine mandate”, Global News (February 10, 2022), online: <https://globalnews.-
ca/news/8610007/nb-judge-court-challenge-vaccine-mandate/> [perma.cc/29KX-
DKR4]; ‘‘Legal Challenge No. 1”, Stand 4 Freedom New Brunswick (2022), online:
82 [43 N.J.C.L.]
Attorney General of Canada (Minister of Public Service and Procurement) and

PMG Technologies Inc.,151 the applicant sought an interlocutory injunction from
the federal court, preventing a federal government policy requiring supplier
personnel to be vaccinated, until the constitutionality of the policy could be
tested. The federal court did not grant the injunction, finding that while the
policy did engage the applicant’s s. 7 rights under the Charter, a serious case
could not be made out. The applicant failed to demonstrate how the policy
deprived him of that right. He ‘‘failed to establish that he would suffer
irreparable harm if the requested injunction was not issued and failed to establish
that the balance of convenience favours issuance of the injunction.”152 The
factual context for such disputes are vital. It will be much easier for employers to
justify vaccine mandates in workplaces such as health care, long term care and
hospitals or educational institutions. The presence of significant public contact
and vulnerable populations are important factors.
This is also an area where there are administrative as well as judicial fora for
people challenging vaccine mandates. Human rights commissions and tribunals,
labour standards codes, collective agreements and occupational health and safety
laws offer various opportunities to object to these mandates. These statutory
remedies are in addition to traditional court remedies. This is an example of the
role of the administrative agencies such as boards, tribunals, and arbitrators in
promoting the rule of law. This is in conjunction with the courts.
One likely source for legal challenges is discrimination provisions in human
rights codes prohibiting disability discrimination and requiring accommodation.
There will also be arguments for accommodation on the basis of religion and
creed.
In Nova Scotia there is also a unique code provision making it a violation to
discriminate against someone on the basis of ‘‘an irrational fear of contracting an
illness or disease.”153 The problem with such a challenge is that on the basis of
the current epidemiological science, the fear of contracting COVID-19 from
people who have not been vaccinated and / or are not wearing a mask is not an
irrational one.
Labour statutes can cut both ways in terms of mandatory vaccines.
Employers have obligations and employees have rights under occupational
health and safety laws, which would support vaccine mandates. Similarly, there
are provisions in collective agreements that could support both unvaccinated
employees and those wanting to be protected from them. Arbitrators have not
<https://www.stand4freedomnb.com/legal-challenge-no-01> [perma.cc/5XB2-
EDWE].
151
Lavergne-Poitras v. Canada (Attorney General), 2021 FC 1232, 2021 CarswellNat
5689, 2021 CarswellNat 4970 (F.C.).
152
Ibid., at para. 103.
153
Human Rights Act, R.S.N.S. 1989, c. 214, s. 5(1)(p) (this provision was added in
response to HIV / AIDS to prevent people with that disease from being excluded for
irrational reasons).
been overly positive about mandatory flu vaccines, but COVID-19 is a much
more serious health threat than that. It is new terrain for arbitrators as well.
Once again, under these collective agreements, employers would have relevant
obligations. In the non-unionized sector, employment standards codes might also
have some application.
Finally, both ss. 7 and 15 of the Charter could have some application to legal
disputes involving vaccines, if the employer is a government actor. Section 7 of
the Charter guarantees ‘‘life, liberty and security of the person” which can only
be deprived in accordance with the ‘‘principles of fundamental justice.” This
section engages freedom of choice and liberty issues, and privacy as well.
However, s. 7 of the Charter has rarely been used in an economic rights context.
Section 15 equality rights under the Charter can also come into play if the rules
are applied in a discriminatory manner. Failure to accommodate on the basis of
disability, religion, or possibly even creed, could also be raised under s. 15 of the
Charter in a public as opposed to private workplace.
University of Toronto Professor and health law expert Colleen Flood, and
others, argue in a persuasive fashion that Charter challenges to mandatory
vaccination policies are not likely to be successful.154 So long as provisions are
made to accommodate those who refuse a vaccine on the basis of underlying
health issues or a bona fide religious or conscientious objection. The authors of
this study also support mandatory vaccinations for those working in the health
sector. Interestingly, in Nova Scotia, The Public Service Commission of Nova
Scotia confirmed that it received 56 requests for exemptions on the basis of
religion or creed to the policy that all provincial employees must be vaccinated.
All requests were denied.155 This confirms my belief that mounting a successful
human rights complaint based on vaccine mandates is very difficult.
The education sector is another one where a strong case can be made for
mandatory vaccinations. Since children under 12 years of age have a lower
vaccination rate and must depend on their parents’ consent to be vaccinated,
they represent a vulnerable population, like those in the health sector. Post-
secondary education is also one where there have been demands for a mandatory
policy. In an open letter to the University, McGill law professors urged that there
be a proof of vaccination policy adopted for on-campus classes and activities.
They argue that to not do so would discriminate against people with disabilities.
Similar demands have arisen in other universities.
In the public sector where Canadians access both essential and non-essential
services, there is a reasonable expectation that you can do so without exposing
yourself to risks of contracting COVID-19. This is also a sector that falls under
154
Colleen Flood et al, Vulnerable: The Law, Policy and Ethics of COVID-19 (Ottawa:
University of Ottawa Press, 2020).
155
Letter from Public Service Commission of Nova Scotia, You are entitled to the
information you requested — 2021-02329-PSC (January 25, 2022), online: <https://
openinformation.novascotia.ca/FOI-Requests/2021-02329-PSC/2jg3-8pmm> [per-
ma.cc/65XT-B6BT].
84 [43 N.J.C.L.]
the umbrella of Charter protections, so any measures to make vaccinations

mandatory for either public employees or those seeking services (i.e., proof of
vaccination), must pass constitutional muster. Once again, I think the possible
violations of Charter rights to liberty, equality, privacy, and fundamental
freedoms can generally be justified under s. 1’s reasonable limits clause. This is,
of course, as long as accommodations are made for those who cannot get
vaccines because of illness, disability, or possibly religious or conscientious
grounds. It seems to me there would be few successful claims on the latter two
grounds.
There are few cases at either the court or arbitration levels in Canada. Most
complaints that have been filed have not yet been heard, since mandatory
COVID-19 vaccine policies are relatively new. For example, a lawsuit has been
launched by Det. Const. Adrienne Gilvesy against the Toronto Police Service’s
policy of mandatory vaccinations.156 She has retained constitutional lawyer
Rocco Galati. He is representing Ms. Gilvesy along with almost 20 other officers
from across Ontario and is challenging pandemic restrictions and their
enforcement by police officers. These are officers who say that enforcing some
of these COVID-19 restrictions is unconstitutional. Ms. Gilvesy also objects to
revealing her vaccination status as a breach of her personal privacy. The outcome
of the lawsuit is still pending.
In Wojdan v. Canada (Attorney General), the applicants sought an injunction
staying the operation of a federal vaccine mandate.157 The court did not grant
the injunction, finding that workplace vaccination policies do not force
employees to get vaccinated, but rather force employees to make a choice
between getting vaccinated or remaining unvaccinated and losing that source of
income.158 That appears to be the dominant conclusion to this point.
I shall now turn to the controversial issue of vaccine passports (or proof of
vaccination) and the related privacy issues. Most Canadian provinces have now
adopted some form of vaccine passport (or proof of vaccination) system
requiring that proof of vaccination be shown in order to attend various ‘‘non-
essential” services.159 These services include restaurants, clubs, bars, gyms,
casinos and sporting events, as examples. There are some variations between
156
Scott Laurie, ‘‘Toronto Police officer opposes workplace vaccine mandate”, Toronto
Sun (September 3, 2021), online: <https://torontosun.com/news/toronto-police-
officer-opposes-workplace-vaccine-mandate> [perma.cc/4MRU-6TCG]. For a more
general discussion on mandatory vaccinations in the workplace see: Elizabeth Raymer
‘‘Opposition to mandatory vaccination policy grows as new policies roll out”, Canadian
Lawyer Magazine (September 23, 2021), online: <https://www.canadianlawyermag.-
com/practice-areas/litigation/opposition-to-mandatory-vaccination-policy-grows-as-
new-policies-roll-out/360115> [perma.cc/63R6-UASB‘].
157
Wojdan v. Canada (Attorney General), 2021 FC 1341, 2021 CarswellNat 5510, 2021
CarswellNat 8174 (F.C.), affirmed 2022 CarswellNat 2288 (F.C.A.).
158
Ibid., at para. 35.
159
The Atlantic Provinces, Quebec, Ontario, Manitoba, and British Columbia have very
similar systems. Alberta and Saskatchewan have different and more relaxed systems.
provinces, but they all exempt people not capable of being vaccinated from this
requirement, namely children under the age of 12 and those with a medical
exemption.
One stated purpose for these vaccines is to reduce the spread of COVID-19 in
areas where evidence suggests the risks are highest: those with larger gatherings
of people. A secondary purpose for the vaccine passports was to increase the
rates of vaccination, especially in the 20 to 39 age bracket, where vaccine
numbers have been lowest. This is also the age group where people are most
likely to congregate in larger groups.
At the time, these measures were supported by the majority of the population
as an acceptable temporary measure, making it easier and safer for people to
return to more normal social interactions. Most public health officers cautioned
that it was not a cure all and that other precautions such as wearing masks, social
distancing, and testing should not be abandoned. By the time this article is
published all provinces and territories will have removed vaccine passports,
barring another major COVID outbreak.160
160
The date provinces lifted vaccine passport requirements varied across the country.
Alberta lifted the passport on February 9, British Columbia on April 8, Manitoba on
March 1, New Brunswick on February 28, Newfoundland and Labrador on March 14,
Nova Scotia on February 28, Ontario on March 1, Prince Edward Island on February
28, Quebec on March 14, Saskatchewan on February 14, and Yukon on March 18. The
Northwest Territories and Nunavut never had mandatory passports; Provincial
vaccine mandates in healthcare settings varied across the country. In Alberta COVID-
19 vaccine or frequent test requirements for healthcare workers, long-term care
workers, and public servants ended March 1, in British Columbia COVID-19 vaccine
requirements for healthcare workers, long-term care workers, public servants, dentists,
pharmacists, chiropractors, midwives, and opticians ended on March 24, in Manitoba
COVID-19 vaccine or frequent test requirements for all provincial employees who
work with vulnerable populations ended on March 1, in New Brunswick COVID-19
vaccine requirements for most employees, except those who work in health care and
other vulnerable sectors ended on March 18, Newfoundland and Labrador has not
announced a plan to remove its COVID-19 vaccine requirements, Northwest
Territories COVID-19 vaccine requirements only apply to employees and contractors
who work with vulnerable members of the Public in the healthcare, education, and
corrections sectors as of March 1, Nova Scotia has not announced a plan to remove
COVID-19 vaccine requirements for frontline workers in healthcare, continuing care,
emergency health services, education, and other sectors, Nunavut’s Department of
Health has a vaccine requirement for its staff, however no government-wide mandate
exists, Ontario COVID-19 vaccine requirements only apply to long-term care workers,
but that is currently under review, Prince Edward Island’s Health PEI has not
announced a plan to remove COVID-19 vaccine or frequent test requirements for its
staff, Quebec backtracked on planned COVID-19 vaccine requirements, Saskatch-
ewan’s Health Authority has not announced a plan to remove COVID-19 vaccine or
frequent test requirements for its employees, and Yukon has not announced a plan to
remove COVID-19 vaccine requirements for public servants and health care workers,
including teachers, as well as those who work in hospitals, long-term care homes,
medical clinics and allied health care settings.
86 [43 N.J.C.L.]
A January 2022 Angus Reid study found that 54% of Canadians studied said
they wanted all COVID-19 restrictions to end and to let individuals self-isolate, if
they are at risk.161 Notably, there was not uniformity across the country, with
Atlantic Canada representing the only region where the majority of those polled
did not agree that it was time to end restrictions and let people self-isolate if they
were at risk. Forty percent of Canadians studied believed it was not yet time to
end restrictions. British Columbia was quite close to the national average, with
52% of Canadians studied believing it was time, and yet British Columbia was
one of the slowest in easing its restrictions.162 Governments across the country
were challenged to decide the best course of action, navigating between opening
up too quickly, and risking widespread infection, and opening up too slowly and
causing further pain to businesses and the economy.
As Professor Dawn Bowdish notes, by requiring individuals who are at risk
to self-isolate the burden shifts, requiring the most vulnerable members of society
to fend for themselves.163 As noted earlier in the article, governments will be
judged both for their actions and inactions. Governments will now possibly be
judged for this inaction in protecting the most vulnerable members of our
society. Although government policy decisions are given significant deference by
courts, their inaction may expose them to litigation.
Those who strongly objected to vaccine passports from the beginning, argued
this created two categories of citizens and were upset by what some argue is
coercion and forced vaccinations. Some even suggest it is the beginning of a
slippery slope to tyranny. They argue that governments are forcing people to get
vaccinated against their will, and are thereby interfering with their liberty,
freedom of choice, and privacy. Some argue that such measures take away the
right to control one’s own body, similar to abortion laws.
To my mind these arguments go too far. People are not being forced to be
vaccinated, but rather accept the consequences of not being vaccinated: a loss of
access to some fairly basic non-essential services. These are rather drastic
measures, but these are drastic times. There are numerous Charter and human
rights arguments raised. Section 2(a) Charter rights to freedom of religion and
conscience are put forward, but the claimants would need to prove that their
religion opposes vaccinations. This is hard to do. There are clear limits on liberty
161
‘‘Incidence of Omicron: One-in-five Canadians report COVID-19 infection in their
household since Dec. 1”, Angus Reid Institute (January 31, 2022), online: <https://
angusreid.org/omicron-incidence-restrictions/> [perma.cc/5WMT-TQQL].
162
‘‘Proof of vaccination”, Government of British Columba (March 10, 2022), online:
<https://www2.gov.bc.ca/gov/-content/covid-19/vaccine/proof> [perma.cc/Y8G5-
XE25].
163
Mark Gollom, ‘‘Some immunocompromised Canadians face anxious future with
lifting of COVID-19 restrictions”, CBC News (February 17, 2022), online: <https://
www.cbc.ca/news/canada/immunocompromised-canadians-restrictions-covid-19-
1.6347743> [perma.cc/38VX-467J].
and freedom of choice as protected by s. 7, but is there a real violation of the

principles of ‘‘fundamental justice”, as also required in that section?
There are also equality claims under both s. 15 of the Charter and human
rights codes. However, with the possible exception of the ‘‘irrational fear of
contracting an illness or disease” provision in Nova Scotia,164 there is no clear
category of discrimination to cover those opposed to vaccines. In Ontario, the
Human Rights Commission (OHRC) has stated that ‘‘a person who chooses not
to be vaccinated based on personal preference does not have the right to
accommodation under the Code. The OHRC is not aware of any tribunal or
court decision that found a singular belief against vaccinations or masks
amounted to a creed within the meaning of the Code.”165 If the opposition is
based on illness or disability, that category of people is already exempted. There
is no enumerated s. 15 Charter ground that fits, and it seems an unlikely but not
impossible candidate for such a new category to be found by the courts under s.
15. Even if claimants could get past the first stage of Charter analysis, s. 1 of the
Charter will likely prevail.
Being required to reveal vaccine status is a clear violation of privacy, as this
is personal health information, which according to the relevant provincial
personal health information protection acts, is private — as a starting
assumption. However, these same statutes have exceptions to the rule of
privacy, including situations where there is a reasonable threat to public health
posed by a serious contagious disease, like COVID-19. This is also true of the
Personal Information Protection and Electronic Documents Act 166 and its
equivalent provincial statutes, which regulate the private sectors at both
federal and provincial levels. Privacy may also be on the periphery of s. 7
protections but most Charter privacy claims to date have been argued under s. 8,
which does not fit this situation.
The heart of the privacy questions in respect to vaccine passports is not the
objective for the privacy invasion, which seems pretty clear, but rather the means
by which that objective is pursued. The technology exists and there are models
both within Canada and beyond, that should allow the passport system and
vaccine employment mandates to work with a minimal intrusion on privacy
rights.
However, my optimism includes a system of vigilant privacy enforcement.
The personal information collected should be minimal; collected data must be
protected and there must be valid reasons to request the vaccine information.
Consent to reveal a person’s vaccination status must remain, even if there are
clear consequences for not revealing your status. The ultimate choice is still
164
Supra note 153.
165
‘‘OHRC Policy statement on COVID-19 vaccine mandates and proof of vaccine
certificates”, Ontario Human Rights Commission (September 22, 2021), online;
<https://www.ohrc.on.ca/en/news_centre/ohrc-policy-statement-covid-19-vaccine-
mandates-and-proof-vaccine-certificates> [perma.cc/3PBM-QGL8].
166
Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.
88 [43 N.J.C.L.]
yours. There are serious issues of privacy at play that need to be closely
monitored by provincial and federal privacy agencies. These agencies need to be
the main guardians of the rule of law on this front.
The C. D. Howe Institute did an early study on the vaccine issues in regard to
COVID-19 and reached the following conclusions:
1) well-designed vaccine passport regimes backed by an equitable vaccine
distribution scheme, will likely withstand a Charter challenge
2) privacy issues can be adequately addressed through careful design and
regulation
3) passport gating should be limited to non-essential services, and wherever
feasible, the unvaccinated should be accommodated with rapid testing 167
At this early stage I tend to agree with the above optimistic conclusions from
the C. D. Howe Institute. Courts, privacy agencies and human rights
commissions should assess and closely monitor the privacy and equity issues,
in particular, as this area unfolds. These systems also should have as short an
operation as is reasonably possible, based on the epidemiology of the COVID-19
virus. This optimism has been justified as the vaccine passports have been
removed across the country by late March 2022.
4. EMERGING AND FUTURE ISSUES

One thing that we have learned from the COVID-19 experience to date is
that the COVID landscape can change very quickly. The COVID-19 virus is very
effective at adapting and mutating and health experts, politicians and the legal
officials are often scrambling to catch up. The epidemiology, which rightly has
been guiding the policy makers, has not remained static. At the point that the
production of an effective vaccine emerged the Delta variant of COVID-19 also
raised its ugly head, and the health crisis has been prolonged. After Delta, the
Omicron variant presented new challenges, especially given its high
transmissibility among vaccinated individuals. The issues that the COVID-19
pandemic presents to the rule of law are constantly evolving and will continue to
develop as restrictions are eased.
This constantly changing and evolving COVID-19 virus has also generated
different legal issues at various stages of its trajectory. Some of the issues have
been around long enough to generate challenges and judicial responses, as
discussed in the sections above. Other legal issues are percolating but have not
167
‘‘Vaccine Ins and Outs: An Exploration of the Legal Issues Raised by Vaccine
Passports”, C.D. Howe Institute (July 2021), online: <https://www.cdhowe.org/sites/
default/files/attachments/research_papers/mixed/Working%20Paper%202021-07-
13.pdf > [perma.cc/WDW2-XP6R]. The Ontario Human Rights Commission also
found that vaccine passports in high-risk settings, are generally permissible under their
Code, so long as those unable to be vaccinated are reasonably accommodated.
Antonella Artuso (Postmedia News), ‘‘Vaccine passports OK during pandemic:
Ontario Human Rights Commission”, Halifax Chronicle Herald (September 23, 2021).
yet played out before courts or tribunals. Different aspects of issues also emerge
over time. For example, I explored above some of the issues around s. 2(b)
freedom of expression under the Charter, such as protests and dissent and
objection to mandatory masks. However, many other issues of freedom of
expression lurk in the weeds.
One potentially big issue is the suggestions that doctors and other people
within the health bureaucracy have been censored and can pay a high price for
speaking out and criticizing the official orthodoxy, as articulated by the very
powerful Chief Medical Officers of Health. In one high profile Nova Scotia case
a doctor was removed from his position as Chief of Emergency after he spoke on
CBC Radio about problems with some COVID-19 responses, which he felt went
too far.168 Whether this kind of control is a larger issue remains to be seen.
Other issues have partially arisen but not yet been fully tested in the judicial
fora. An example of this would be legal challenges to issues of enforcing COVID-
19 rules and orders. When I discussed this issue in Part 2 of this article, I
emphasized that fair and non-discriminatory enforcement of the legal rules is one
of the important hallmarks of the rule of law. The CCLA has been collecting
stories of possible abuse of enforcement from all parts of Canada. This
organization has produced a useful report169 on COVID enforcement but there
will likely also be court challenges in specific cases that will take a long time to
wind through the system. This often-slow process is made even more so because
of the backlog of cases caused by COVID itself. When these and other cases are
decided it will provide a clearer picture on how Canada performed on this
enforcement indicator of adherence to the rule of law.170
Even for cases that have been decided at the first level there may be appeals
which could produce a different result. One example of this is Spencer v. Canada
(Health),171 dealing with a host of Charter challenges to rules relating to
quarantines, isolations, and government mandated hotels. These far-reaching
measures were labelled as ‘‘dangerous”172 by counsel for the claimants and could
168
Andrew Rankin, ‘‘Doctor says colleagues concerned about being muzzled”, Halifax
Chronicle Herald (July 11, 2021), online: <https://www.saltwire.com/atlantic-canada/
news/ns-doctor-says-colleagues-concerned-with-covid-restrictions-being-muzzled-
by-province-regulatory-body-100610397/> [perma.cc/C5A3-DJL5].
169
Supra note 31.
170
Speedy enforcement of rules during the COVID-19 pandemic requires giving discretion
to the police and other enforcers. The police themselves are not always happy with too
much leeway. In London, Ontario, some officers expressed concern about being
mandated to enforce rules in ways that might violate their Charter obligations. See
Jordyn Read, ‘‘Chief of London Police rejects new police powers enforced by Ont.
government”, CTV News (April 17, 2021), online: <https://london.ctvnews.ca/chief-
of-london-police-rejects-new-police-powers-enforced-by-ont-government-
1.5391465> [perma.cc/V298-8NTT].
171
Supra note 136.
172
Adrian Humphreys, ‘‘Federal courts support of tighter COVID-19 restrictions called
dangerous”, National Post (July 1, 2021), online: <https://nationalpost.com/news/
90 [43 N.J.C.L.]
challenge the deferential approach of the courts in striking the proper balance in
pandemic times. This lower court ruling has been appealed to the Federal Court
of Appeal.
Another issue that should be monitored in the coming months is the CCLA’s
application in federal court challenging the Federal government’s use of the
Emergency Measures Act.173 Alberta and Saskatchewan have also indicated that
they have considered suing the federal government for its use of the act. 174
Alberta Premier Jason Kenney has claimed that the Act infringed on provincial
jurisdiction and that it could lead to a dangerous precedent. He noted that
provincial law enforcement agencies were equipped to address the road
blockades without federal intervention.175 That does not appear to have been
the case in Ontario.
In January 2022, Dr. Jean Robert Ngola filed an action against New
Brunswick, Facebook, and the Royal Canadian Mounted Police after he received
hateful and racist comments on Facebook after being accused of breaking
COVID-19 rules.176 Dr. Ngola had been accused of violating the province’s
Emergency Measures Act, but the Crown later dropped the charge. In May 2020,
New Brunswick Premier Blaine Higgs suggested that a health-care worker was
responsible for a COVID outbreak and said the matter was being handled by the
RCMP. It was leaked on social media that Dr. Ngola was the subject of that
investigation. Dr. Ngola alleges that Facebook allowed the dissemination of
hateful, racist statements and wilfully promoted posts against the plaintiff by
refusing to remove them.
The case has not been heard yet, but it will be interesting to see how the court
rules in relation to the treatment of a healthcare worker that the government was
allegedly culpable for ostracizing from his community and ultimately Canada.
The case is particularly interesting because it highlights the challenges the RCMP
has faced in enforcing COVID-19 rules fairly and without discrimination and
highlights the potential liability of the government to enforce COVID-19 rules
fairly and equitably. The case is also a novel challenge to the role of social media
canada/federal-court-giving-ottawa-advance-permission-to-tighten-covid-restric-
tions-called-dangerous> [perma.cc/UB4P-FMWF].
173
Supra note 17; Supra note 120.
174
Adam Lachacz, ‘‘Alberta to launch court challenge over Ottawa’s use of the
Emergencies Act”, CTV News (February 19, 2022), online: <https://edmonton.ctv-
news.ca/alberta-to-launch-court-challenge-over-ottawa-s-use-of-the-emergencies-
act-1.5788692> [perma.cc/UHT8-DFHX]; ‘‘Saskatchewan considers challenging
federal Emergencies Act in court”, CBC News (February 22, 2022), online: <https://
www.cbc.ca/news/canada/saskatchewan/saskatchewan-emergencies-act-court-
1.6360473> [perma.cc/Y56H-YQF3].
175
‘‘Kenney says province will challenge federal Emergencies Act in court”, CBC News
(February 19, 2022), online: <https://www.cbc.ca/news/canada/calgary/jason-ken-
ney-emergencies-act-twitter-1.6358480> [perma.cc/2PBE-BLUE].
176
Ngola v. New Brunswick, Facebook, and Royal Canadian Mounted Police (January 20,
2022), Moncton (Notice of Action).
in pandemic times. While the spread of misinformation on the platform is well

documented, the particularly personal nature of this case has significance. Any
challenge to a large social media platform like Facebook is very interesting.
Another emerging issue arising from the removal of government restrictions
is the possible use of vaccine passports, testing requirements, or masks by private
establishments. The Charter does not apply to the private sector and as long as
the private owners of the operations do not violate statutes, such as, privacy
laws, human rights codes, collective agreements, or other statutes, they could
legally continue some restrictions. For example, when Ontario Premier Doug
Ford declined to implement mandatory COVID-19 vaccination for healthcare
workers, many hospitals implemented their own policies. 177 Presumably,
hospitals, other healthcare facilities, as well as non-essential services could
choose to continue to enforce a variety of COVID-19 restrictions. These are only
a few examples of emerging future legal issues.
5. CONCLUDING THOUGHTS: REASONABLE LIMITS IN

PANDEMIC TIMES
The COVID-19 pandemic offers the biggest challenge to the rule of law in
Canada since World War II. Inherent in the government response to a national
crisis like this is the centralization of power in the hands of the executive branch
of the state. Many provinces in responding to the health crisis delegated the
major decision making to the Premiers (with varying Cabinet input) and the
Chief Medical Officers of Health, which in many ways replaced the Cabinet. It
thus falls to the courts and various judicial administrative agencies such as
human rights tribunals and privacy commissioners to protect against abuse of
this centralized authority. This is the challenging test for the rule of law.
The essential task facing the courts in this national health crisis is the
balancing of the individual rights of people who are subject to COVID-19
restrictions with the collective rights of the larger Canadian society to a healthy
life, free of risks to contract the deadly virus. It is often a difficult balance to
strike.
The magnitude of the COVID-19 health crisis forces us as individuals and as
a Canadian nation, to define who we are in both the individual and in the
national sense. Not surprisingly, people do not always agree on what we should
do and issues such as mask wearing, and vaccinations have been both
controversial and divisive. Some think that mask wearing, social distancing,
and getting vaccinated are essential to being a good citizen of Canada at this
time. Others feel that governments have gone too far with restrictions and have
177
Allison Jones, ‘‘Ontario hospitals keeping mandatory vaccination for staff, some for
visitors”, Penticton Herald (February 17, 2022), online: <https://www.pentictonher-
ald.ca/news/national_news/quebec/article_4b63aa38-4c97-50fb-8b12-db3f4e52-
f56e.html> [perma.cc/8W32-2YKB].
92 [43 N.J.C.L.]
embarked upon the slippery slope to tyranny. These major divides appeared in
the recent federal election and no doubt played a role in the results.
In the complex task of balancing rights that face all branches of the state in
responding to the COVID-19 health crisis, it is vital to remember that no rights
are absolute — even the fundamental ones enshrined in our Constitution. This
point was clearly articulated by retired Justice Cory of the Supreme Court of
Canada in the different context of R. v. Nikal. He states:
. . .It has frequently been said that rights do not exist in a vacuum, and
that the rights of one individual or group are necessarily limited by the
rights of another. . . Absolute freedom in the exercise of even a Charter
or constitutionally guaranteed aboriginal right has never been accepted,
nor was it intended. Section 1 of the Canadian Charter of Rights and
Freedoms is perhaps the prime example of this principle. Absolute
freedom without any restrictions necessarily infers a freedom to live
without any laws. Such a concept is not acceptable in our society.178
In a thought-provoking article in the National Post a recent political science
graduate Arjun Singh argues for the removal of s. 1 from the Charter.179 He also
suggests that the judicial system in Canada has been overtaken by left wing
thinkers — including the former Prime Minister Pierre Trudeau’s appointed
judges, who gave us cases like R. v. Oakes.180 I completely disagree with his
positions, but the article may be a small sample of the significant debate about
the nature of rights and how individual and collective rights are balanced. This is
particularly true in pandemic times.
While no judicial branch is completely devoid of some ‘‘small p” political
influences, I assert that the current Canadian judiciary scores very well in respect
to their independence and objectivity. This is also increasingly true in respect to
the various administrative agencies, who are partners with the courts in
promoting the rule of law. The role of these institutions in checking the broad
and centralized exercise of authority during this COVID-19 emergency is a
positive one. The judges and relevant judicial administrative agencies are well
equipped to hold the other branches of the state to account, even in these
pandemic times.
It is my view that most of the limitations on our rights that have been
imposed by the COVID-19 restrictions will be upheld as reasonable things to do
in response to this once in a lifetime health crisis. There are of course some
exceptions. I am confident that the courts and other judicial agencies, will strike
178
R. v. Nikal, 1996 CarswellBC 950, 1996 CarswellBC 950F, [1996] 1 S.C.R. 1013, [1996]
S.C.J. No. 47 (S.C.C.) at paras. 91-92.
179
Arjun Singh, ‘‘Left wing values have invaded Canada’s legal system and diminished our
Charter rights: Why Canada should abolish Section 1”, National Post (September 23,
2021), online: <https://nationalpost.com/opinion/arjun-singh-left-wing-values-have-
invaded-canadas-legal-system-and-diminished-our-charter-rights> [perma.cc/YU54-
WF43].
180
Supra note 2.
the correct balance between individual and collective rights. All branches of the
Canadian state have the duty to work together and operate within our
constitutional and statutory legal framework in responding to the COVID-19
crisis. The cases to date would suggest that Canada has responded reasonably
well. The performances of the provinces varied, with Atlantic Canada generally
doing a pretty good job of containing the virus, with the notable exception of the
tragic deaths in long term care during the first wave of COVID-19. In the west
Alberta and Saskatchewan had high rates of infection, in part because these
provinces were less inclined to shut down the economy. Ontario and Quebec as
well as Canada’s northern territories, have had peaks and valleys during the
many waves of COVID-19 to date.
The ravages of COVID-19 have disproportionately affected, and continue to
affect, vulnerable groups such as the elderly, homeless people, prison inmates,
visible minorities, Indigenous people, and others on the margins of Canadian
society, such as the poor. Pre-existing inequities have been accentuated by the
pervasive health crisis. We can only hope that better days lie ahead and that we
will emerge from this pandemic as a better and more caring nation and one that
is more committed to justice and equity. I believe that Canada has generally
emerged from this pandemic as a reasonably caring and compassionate society,
that did not sacrifice the lives of the aged and immune-compromised on the altar
of individual freedoms. We have struck a reasonable balance in unbalanced
pandemic times.
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The Rule of Law in Pandemic Times*

Dr. A. Wayne MacKay C.M., Q.C.**

1. THE COVID PANDEMIC: A CASE STUDY IN BALANCING RIGHTS

In times of crisis, such as the COVID-19 global pandemic, we are forced to

well articulated in s. 1 of the Canadian Charter of Rights and Freedoms which

2. RULE OF LAW AND AUTHORITY FOR RESTRICTIONS LIMITING

(a) Expanding Concept of Rule of Law

The Reshaping of Canada’s Constitutional Law Landscape” in Erol Mendes &

where necessary, to the courts. As Justice Rand indicates in Roncarelli c.

(b) Exercise of Emergency Powers

12, 2020), online: <https://sujitchoudhry.medium.com/covid-19-the-canadian-con-

decisive action. In times of emergency, courts have accepted broad delegations of

(c) Enforcement of Rules and Orders

(d) Vulnerable Populations and Equity Challenges

the s. 7 rights of people experiencing homelessness, as well as the

the basis of an enumerated ground, nor did they reinforce, perpetuate, or

3. GOVERNMENT RESTRICTIONS: CHALLENGES AND

can be defended by the relevant governments as reasonable limits in Canada’s

News (April 12, 2021), online: <https://atlantic.ctvnews.ca/n-l-ndp-launches-consti-

(a) Categories of Restrictions: Challenges and Reactions

(i) Mandatory Masks

(iii) Gathering Restrictions

(A) Private Gatherings

Balancing these conflicting rights proved challenging for governments

Automotive Parts Manufacturers’ Association (APMA) filed for an injunction

the CCLA has brought an application in federal court challenging the

emergency’”, CBC News (23 February 2022), online: <https://www.cbc.ca/news/

(vi) Proposed Vaccination Tax

(g) promote health equity within the population by addressing the

in contact tracing of people infected with COVID-19 is but one of many

access non-essential services, and requiring people to reveal their vaccination

essential activities, such as going to restaurants, bars, concerts, movies, and

Attorney General of Canada (Minister of Public Service and Procurement) and

the umbrella of Charter protections, so any measures to make vaccinations

and freedom of choice as protected by s. 7, but is there a real violation of the

4. EMERGING AND FUTURE ISSUES

in pandemic times. While the spread of misinformation on the platform is well

5. CONCLUDING THOUGHTS: REASONABLE LIMITS IN

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