Civil Liberties and COVID-19
The assault on the world by COVID-19 has led all countries to impose draconian limits on fundamental civil liberties, such as the freedom to circulate, to travel, to associate with other people, to pray in groups and to work at many tasks. These measures necessarily had to be enforced by intrusive means such as heavy fines and tracing people through their telephones. Predictably and justifiably, civil liberties defenders protested and expressed both their opposition to some of the measures taken and their deep anxiety over the entire situation. Yet the measures are not necessarily either wrong or illegal.
Civil liberties in all societies are subject to certain essential exceptions and the Canadian Charter is explicit about this in Section 1, which speaks of “necessary limits”. During past emergencies, we have invoked the old War Measures Act and sometimes arrested individuals considered a risk. We have had military drafts, obligatory blackouts, forced evacuations and limits on protests and demonstrations. Generally speaking, these measures were upheld. Most will accept that the present situation merits strong action and that their infringements of liberties are rationally justified.
Yet the civil libertarians have a point. All human actions can easily be abused, and law enforcement is particularly prone to abuse. We must be wary of arbitrary measures, of private vengeance, and of racial profiling. During World War II, our most famous case of racial profiling — that of the imprisonment of Japanese Canadians — was not even recognized as an outrage for many decades. It is established by evidence from Chicago and New York that African Americans have suffered a disproportionate number of cases of COVID-19. That could easily fuel profiling. In addition, we have seen evidence of hate against Asians and even incidents of ageism since many saw the confinement as an attempt to protect mainly the elderly.
The Charter continues to apply and it is essential that abuse, arbitrariness and profiling be subject to judicial review. Under no circumstances is it acceptable for the police to make judicial decisions or to impose penalties without the possibility of appeal.
However, that is only a part of the problem. The frightening fact is the very existence of the invasive surveillance technology. Its use in an emergency, such as coronavirus, is mostly unobjectionable but the likelihood of its generalized use in the future is a serious threat to individual liberty. All technology tends to be used and abused. The surveillance has been reducing the scope of freedom of expression and privacy for several decades and the COVID-19 crisis tends to legitimize it use. In other words, the surveillance and other restrictions may not stop with the medical solution to COVID.
Is it possible to do anything about this? The loss of freedom is an insidious progressive development and it may be impossible to halt it altogether. Yet certain precautions could be taken.
The law should move towards a policy of inadmissibility of collateral evidence obtained through surveillance. At present, if the police are following someone on suspicion of one thing, let us say drugs, and they discover a ring of fraudsters or forgers, the evidence can be admitted at trial unless the courts decide that the reputation of justice could be brought into disrepute. Despite the need to convict the guilty, and the importance of discovering carriers of disease, individual freedom is so crucial that in most cases such evidence should be excluded.
After the epidemic subsides, we should strengthen basic freedoms — expression, conscience, religion, association — against the conformism that surveillance promotes. The countless rules and regulations that our society imposes could be pruned and reduced to a minimum. This does not mean that the state should refrain from legislating. On the contrary, the welfare state is one of the most important achievements of the last century. However, gratuitous regulations and the tendency to make everything uniform are not acceptable.
If we realize that the threat to our freedom is not caused by Covid but by the ever- improving technology, the tragedy that our society is now enduring may yet have a positive side-effect. Determination to strengthen civil liberties may be sparked by their temporary suspension.