For 11 months, governments have asked Canadians to sacrifice in order to arrest the spread of the virus that causes COVID-19. The provinces have each taken different approaches, but all imposed lockdowns last spring, re-implemented in various forms this winter.
Despite that pandemic restrictions have caused economic hardship for many, some Canadian governments and health experts argue that even more restrictions are required, including curfews. The adoption of curfews in Canada are and would be the greatest restriction on Canadians’ movements and lives since the October Crisis, and are one of the most significant and serious breaches of the Charter of Rights and Freedoms since its enactment.
Effective Saturday, Quebecers are required to remain indoors from 8 p.m. until 5 a.m., with limited exceptions. Most stores, including grocery stores, must close during those times. Those caught breaking curfew can be fined $6,000.
Curfews breach several Charter provisions. Section 2 protects the freedom to assemble and associate. Section 7 protects the right not to be deprived of liberty “except in accordance with the principles of fundamental justice.” Section 15 guarantees equality under the law.
Charter rights, however, are not absolute, and are subject to “reasonable limits” that the state can justify. Where courts find a breach, government must prove that the breach achieves a “pressing and substantial objective,” that the breach is rationally connected to the government’s policy objective, that it minimally impairs the right breached, and that the benefits of the breach outweigh its negative impact.
Concerning pandemic restrictions, courts will agree that governments have a valid objective in trying to address viral spread. However, governments defending curfews must provide evidence to the court that the use of curfews will actually impact viral spread in order to ensure a curfew rule can survive.
The evidence supporting the need for curfews is scant at best. Even Dr. Horacio Arruda, Quebec’s top public health official, acknowledged last week that there is no hard scientific evidence to support curfews.
It is nearly impossible to persuade a court to accept that the multiple Charter breaches which a curfew causes are justified when no evidence is presented to support such measures. Courts will also consider, with respect to whether Canadians’ right to liberty is infringed, whether a curfew is “arbitrary” or “overbroad.”