Juno News - Curfews are unconstitutional

00:00:00.000 you're tuned in to the Andrew Lawton Show

00:00:05.600 this is going to be a big week in the lockdown fight another form of a battle we've been covering

00:00:14.920 a great length on this show and one of the big questions is whether Ontario is going to

00:00:20.520 get a curfew a la the one that was put in place in Quebec just a few days ago in which we're

00:00:26.160 already seeing arrests of people for you know just walking down the street basically doing

00:00:31.160 something that used to be an activity you'd take for granted in a free society so what the Ontario

00:00:36.320 plan is going to look like we don't yet know but we do know that curfews are not respectful of the 1.00

00:00:43.760 charter they're not constitutional and there was a great op-ed in the Toronto Sun about that written

00:00:48.840 by Dr. Matt Strauss and civil litigator Ryan O'Connor who joins me on the line now Ryan good to talk to

00:00:55.500 you thanks for coming on well thanks for having me Andrew so let's talk first off about why curfews

00:01:01.700 are in your view not constitutional so there are several sections of the charter that apply to

00:01:07.280 to curfews first every Canadian has the right to free assembly and free association so that's the

00:01:13.100 right to gather and the right to attend a demonstration every Canadian has the right to

00:01:17.320 liberty to go about their business as they see fit with certain constitutional constraints so those are

00:01:22.640 the main provisions of the charter that are breached when when you can't leave your house between

00:01:26.420 in Quebec's case 8pm and 5am

00:01:28.840 this is something that I've found to be really concerning for two reasons number one is that it

00:01:34.940 forces people just to live in a state of fear you know you're out and about you might be out there

00:01:39.760 a bit too long it's like oh my goodness I got to get home before 8pm lest I find myself a foul of

00:01:44.800 the curfew but it also forces a lot of other things to shut down and this is what we've seen in

00:01:49.700 Quebec whereas it's not just about you can't leave your house it's all of a sudden the government

00:01:53.720 then has a mechanism to stop all of the things that you might do outside your house from happening

00:01:58.480 like making businesses close early and making other people really force like force themselves

00:02:04.460 to prove that they have a right to be out if they are one of those essential businesses

00:02:08.760 well that's the issue too I mean what was interesting about the Quebec example is that when the curfew

00:02:15.160 started on Saturday they delivered a an emergency alert message to everyone's phone saying you can't

00:02:20.200 leave your house at all which is actually incorrect interestingly enough you're allowed there are

00:02:24.860 exceptions in Quebec you're allowed to go walk your dog you're allowed to if you're an essential worker

00:02:28.320 go to work you're allowed to in the Quebec circumstance you're allowed to travel the airport to go to

00:02:33.860 Florida but you can't walk around the block without a dog so it is I think there is an attempt by

00:02:39.840 government to sort of to demonstrate how you know serious the pandemic is but at the same time you

00:02:44.740 can't unfairly inappropriately or arbitrarily restrict persons charter rights in so doing and I think

00:02:49.980 that's that's the biggest issue and another issue too is the fact that there's very little little

00:02:54.080 evidence to suggest that that curfews are even effective in that you know in preventing viral spread

00:02:58.740 what is the government's defense of this because throughout the entirety of the lockdown measures

00:03:06.080 we've been told that you know well everything's falling under that you know catch-all reasonable

00:03:10.140 limits category is this another one of these cases where the government would say you know the

00:03:14.140 pandemic is really our trump card over these civil liberties concerns well a government can't just

00:03:19.500 say well there's a pandemic therefore the charter is suspended the reason why we have a charter of

00:03:24.900 rights to protect our ancient and constitutional liberties is is because governments will trample on

00:03:30.460 them in times of crisis so I think that the all this is all the more reason to talk about

00:03:34.960 why the charter is breached and the government can't just simply say well this is a reasonable

00:03:38.560 limit yes all all charter rights are subject to reasonable limits as can be demonstrably

00:03:42.780 justified in a free and democratic society that's the first part of the charter but but those limits

00:03:47.560 have to be rationally connected so that from the there has to be a rational connection between the

00:03:52.880 charter breach and you know and the policy there has to be minimal impairments there has to also be

00:03:59.320 proportionality between the charter breach the negative effects of the charter breach pardon me and the

00:04:04.540 positive benefits in a case like a curfew a curfew to me is not minimally impairing you know you can't

00:04:10.540 go out for you know very few reasons after 8 pm why does the curfew not start at midnight does the virus

00:04:16.300 spread at 8 pm but you know but not at 7 pm it's really hard to understand that Quebec's rationale behind its

00:04:22.940 restrictions and and the significance of the restriction is important for any you know if this is challenged in

00:04:28.540 court you basically cannot leave your house that's the most extreme uh imposition on Canadians right 0.54

00:04:34.780 since the October crisis so uh the government may say well yes everything's subject to section one of

00:04:40.300 the charter the reasonable limits clause but you know in a time of crisis if you can't rely on the

00:04:44.460 charter to protect your rights you know it's really not worth the paper that's written on if there were

00:04:49.420 evidence backing up a curfew and I know that's a big if because even Quebec's top doctor as you you've

00:04:54.300 noted uh said there was very scant evidence on this but would that be enough to overcome this

00:05:00.060 or is your view that the charter breach the the freedom breach is too significant that even if it

00:05:05.180 did have a marginal success at getting cases in check it wouldn't matter well the problem is is the

00:05:11.020 court is also going to like you know the context of a challenge whether or not the uh the charter

00:05:15.500 breach is uh is arbitrary or it's overbroad you know uh large manufacturers for example in Quebec

00:05:21.900 are are exempted from the rule so you can go to work at your large manufacturer we've heard evidence

00:05:26.620 at least in Ontario in other cases in Quebec where there have been outbreaks at large industrial

00:05:30.780 workplaces so if the premise of uh if the premise of the curfew is to prevent viral spread it's not

00:05:36.620 attacking the very places where viral spread is happening so it's arbitrary and then a law that

00:05:41.660 is arbitrary doesn't survive uh the reasonable limits clause of the charter it's also overbroad

00:05:46.860 um a homeless person can't go for a walk around their mission or their shelter

00:05:50.780 um lest they face a six thousand dollar fine a court is not going to look to uh look too kindly

00:05:55.980 on a circumstance where homeless person is being fined six thousand dollars for walking around the

00:06:00.060 block uh or you know maybe they don't even have a place to go they could be fined and that's that's

00:06:04.860 really problematic from a constitutional perspective one of the big challenges that we've seen in some

00:06:10.300 of the church challenges and other challenges of fines here is that there really isn't an ability to

00:06:15.980 get a remedy uh in time to really do anything about it we've had people that are putting these

00:06:20.860 challenges i know a lot of them may not be heard or decided until the restrictions we hope end on

00:06:26.620 their own is this going to be another case like that or do you think there is a possibility if something

00:06:31.420 in Ontario is put forward that there's an injunction application or some other measure that could be heard

00:06:37.500 quick enough to make a difference well courts will hear injunctions uh you know fairly quickly in the

00:06:43.260 circumstance particularly at least in Ontario you know sometimes within a hearing injunction after

00:06:47.420 motion pardon me within two weeks of an application being started we've seen with some of the religious

00:06:51.100 services restrictions that from the time you start your proceeding until the time of the injunction it

00:06:54.860 can sometimes be as little as nine days but the problem is is that it's very hard to get an

00:06:59.180 injunction in the circumstance to be essentially asking for uh the court to uh exempt you from the

00:07:04.060 application of a law but but the thing is is that it it seems as if lockdowns are going to continue

00:07:09.340 beyond at least in Ontario they're supposed to end later on this month uh looks like with the case

00:07:13.660 counts that's probably not going to happen so i think there is an opportunity for a person to bring

00:07:17.580 a challenge to whether it be a curfew if a curfew is imposed in Ontario um it might be that the curfew is

00:07:23.100 ongoing for a month or maybe more maybe lockdowns will go on all winter um and in that case there will

00:07:28.300 be an opportunity for persons to challenge on an urgent basis these uh these issues before the court

00:07:32.460 with curfews in particular there almost is outside of the legal argument against them there there's

00:07:39.500 something very chilling about them because this is actually that wartime mentality and a lot of the

00:07:45.180 other restrictions some could argue might have been a bit more incremental but for me this has been the

00:07:49.580 one that i found the most unsettling even though ostensibly it wouldn't affect my day-to-day life all

00:07:54.780 that much i very rarely leave home after 8 p.m in general let alone during the pandemic but there is

00:08:00.380 something very symbolic about it too well it's uh it's symbolic that we you know the same government

00:08:07.100 that has been lauding our health care heroes and our essential workers and our truckers etc those are

00:08:12.860 the people have to go to work past eight o'clock a lot of people can stay at home and you know work

00:08:17.260 from their home office and this won't affect them but for those individuals that have been told that

00:08:21.820 you know we rely on you thank you for your service those are the very people that are being

00:08:26.140 being pulled over in their cars by the police on their way to the long-term care home they're going

00:08:30.460 to be individuals who are pulled over by the police on the way to go to the yard to pick up their truck

00:08:34.300 to do an overnight delivery so those very heroes that we've been taught that governments have been

00:08:37.900 talking about are the very individuals that are going to be targeted by uh by it's frankly the most

00:08:43.180 appalling and chilling aspect yeah you are right about that and the other aspect of this too that i i found is

00:08:49.660 that there are going to be people that i i think genuinely are already dealing with lockdown issues

00:08:57.340 they are stuck in the home maybe they have just a really tiny apartment in toronto and they don't

00:09:01.740 have many opportunities to get away maybe someone works 12 hour days and they now don't have the

00:09:07.260 ability to do anything like i could see a lot of people really falling through the cracks of this or i

00:09:12.620 not even cracks the craters of this because there's a system in place that doesn't allow them to actually

00:09:17.820 live their lives exactly like you know we think of we talk about cobit just um you know in terms

00:09:23.740 of case counts every day but think of all the other issues that cobit and lockdowns are causing

00:09:27.500 uh impacts on physical and mental health it's illegal in ontario for example to go to the gym

00:09:31.980 nhl athletes can go to the gym olympians go to the gym but regular ontarians can't go to the gym

00:09:36.940 that has a real significant impact on mental health and physical health and if you're worried about on

00:09:41.020 your on your way to work because you're allowed to go to work you're an essential worker

00:09:44.380 or if you're walking your dog which in the quebec example is is legal you're looking behind you

00:09:49.820 constantly to see if there's a police officer in the vicinity you're looking around you constantly

00:09:53.740 to see if a bylaw officer is going to give you a ticket that has a significant um problem may have

00:10:00.140 a significant problem on you psychologically if you have mental health issues always looking behind

00:10:04.060 your back like like it's a police state and that's that's really problematic yeah and i actually just

00:10:09.740 read this morning a case of a montreal family given three thousand dollars worth of tickets

00:10:16.060 because they were on their way back from new brunswick and by the time they got into quebec i

00:10:20.620 guess it was after 8 pm so they violated the curfew and they're saying that they're they should have

00:10:25.660 not been given that because they were in transit but these sorts of stories are going to become more

00:10:29.740 and more common sure and when you give police discretion to apply a new law you can never be certain

00:10:35.500 they're going to apply it in a way that is compliant with the law or compliant with the charter um you

00:10:39.740 know and i don't begrudge police necessarily they they have to do their job and they literally just

00:10:44.700 received orders to enforce a law that was enacted last week they may not be aware individual

00:10:49.180 officers may not be aware of the exceptions rules such as walking your dog etc and there was video

00:10:53.980 online from saturday night that showed a gentleman who was walking his dog was that you know pulled over

00:10:58.700 by the police maybe because they don't know there's an exception but the problem is when you give

00:11:02.060 police discretion under a new law to apply it um you don't know that they're going to apply it in

00:11:05.980 a way that's that's consistent with the charter or that um is consistent with the exceptions yeah

00:11:11.180 very well said the op-ed in the toronto sun here's how curfews violate charter rights one of

00:11:15.900 the co-authors lawyer ryan o'connor joins me now ryan thanks very much for coming on today and great work

00:11:21.260 with this piece thanks for having me andrew thanks for listening to the andrew lawton show

00:11:25.740 support the program by donating to true north at www.tnc.news

Juno News - January 12, 2021

Curfews are unconstitutional

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