Rights and wrong in a crisis

Democratic governments have to carefully weigh restrictions on liberty in pandemic response, experts say


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The coronavirus pandemic has put civil liberties and human rights on a collision course with increasingly harsh restrictions seen around the world, to keep as many people safe and healthy as possible.

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Hey there, time traveller!
This article was published 03/04/2020 (1035 days ago), so information in it may no longer be current.

The coronavirus pandemic has put civil liberties and human rights on a collision course with increasingly harsh restrictions seen around the world, to keep as many people safe and healthy as possible.

Experts in this field say that, in a democracy such as Canada’s, there needs to be a balance between the two pursuits and they are keeping a close eye.

“For me, it’s really about restricting rights as little as possible, while still responding to these really unusual circumstances,” said Kjell Anderson, the director of the University of Manitoba’s human-rights graduate program.

Many rights have been compromised, or at least limited, in the past few weeks. Freedom of movement, freedom of assembly, freedom of speech in some instances, to name a few.

“For example, obviously the government doesn’t want people to gather in groups. That can relate to freedom of assembly. But I don’t think you would find many people who would say that was an unreasonable restriction on freedom of assembly, given the extraordinary circumstances,” Anderson said.

Cara Zwinbel, a lawyer and director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association, echoed Anderson’s words, again referring to the pandemic as extraordinary.

She says it is all a matter of whether the government begins to lay out timelines and expectations for when things will go back to a state of semi-normalcy; not expecting it to be immediate, but something that must eventually materialize.

“What is the metric that we’re waiting for that says we can start easing up on some of these restrictions? And that’s something we haven’t really been talking about, and maybe it’s because there isn’t yet an answer to that. But I think it would be helpful for people to understand. What are we waiting for?” Zwinbel said.

Anderson said that while the government may be strongly encouraging people to stay home, in most instances it is not legally mandated, save for the measures brought in by the Quarantine Act last month that require people entering the country to self-isolate for 14 days upon their return.

Anderson notes that Canada, in many ways, has been more lenient in its governance over public-health protocols.

“There are some countries where you can literally get a fine for going out on the street,” he said.

But countries where harsher measures have been imposed are also further ahead of Canada in terms of how far the virus has spread, he said, adding stiffer restrictions could be on the way.

Some observers have suggested that the national Emergencies Act — legislation that replaced the War Measures Act in 1988 — could be invoked. One major difference between the two is that the Emergencies Act is subject to the Canadian Bill of Rights and the Charter of Rights and Freedoms, which was not the case for the War Measures Act.

Anderson says other important changes favour civil liberties, including that the act must be approved by Parliament, and it must be renewed every 90 days.

Both Anderson and Zwinbel said much depends on whether the infringements on rights are proportional to what is needed, which is difficult for non-medical professionals to assess.

In international law, there are some rights that cannot ever be limited, such as the right to life. But there are limitable rights that include the right to freedom of expression, for example. In instances where false information and conspiracy theories are being spread about COVID-19, there is an argument for governments to cautiously limit this right, Anderson said.

The federal government has not stepped in, but social-media platforms have, using various methods to try and screen incorrect information.

Human Rights Watch posted some cursory guidelines on its website last month saying, “Restrictions on some rights can be justified when they have a legal basis, are strictly necessary, based on scientific evidence and neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, subject to review, and proportionate to achieve the objective.”

There was a short-lived outcry in March when Toronto Mayor John Tory suggested that the city was using data from cellphone companies to track where people were gathering and disregarding public-health advisories, however, that turned out to be incorrect and he walked back his claim shortly after.

Prime Minister Justin Trudeau sought to reassure people in the following days that this practice was not being used in Canada at this point. But it has been used in several other countries, such as South Korea and Germany, raising concerns from privacy advocates.

“What happens when the virus is over?” Anderson asked. “Does the government just keep tracking peoples’ cellphones? Governments have almost natural tendencies towards secrecy on the one hand, and also creeping powers.”

Less-democratic regimes are using the pandemic as an excuse to step up powers without foreseeable limits.

This week Hungary, for example, passed legislation that allows Prime Minister Viktor Orbán to rule by decree and jailing people for spreading false information. Critics worry this could be used against journalists that pressure the government. The emergency legislation has been put in place with no time limit.

There are instances throughout history where moments of fear are used by governments to secure power, Egypt for example, was in a state of emergency from 1981 until the Arab Spring in 2011. This allows for leaders to centralize power, Anderson said.

“So there always has to be this due diligence where we ask ourselves whether these powers are really necessary,” Anderson said. “The idea of a shared enemy creates a certain leeway for governments that they can take power in ways they can’t normally, because people are afraid. You see this in the context of war, in the context of armed conflicts, but you can imagine we could see the same thing in the context of a virus.”

Twitter: @SarahLawrynuik

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