It is obvious that the obligation to wear a face cover or to present proof of vaccination to access places or activities limits our freedoms. The real question, however, is whether such limits are reasonable. Responding to them requires a documented and reasoned exercise that goes beyond motives and slogans.

For several members of the anti-health measures movement, these policies would be the Trojan horse of more serious attacks against democracy. In short, we are making a trial of intent by presenting the sanitary measures “as equivalent [à] a political dictatorship, made to dominate, oppress, crush the people ”. Others claim that such measures will necessarily become permanent, eroding our rights and freedoms for a long time. All arguments that avoid discussing the reasons for these measures, however temporary: instead of discussing the reasons that may justify measures limiting freedoms, we stick to asserting that all this would be the prelude to a dark conspiracy.

Such arguments do not take into account how rights and freedoms work in democratic societies. All rights and freedoms are subject to limitations. In Quebec, section 9.1 of the Charter of human rights and freedoms provides that “fundamental rights and freedoms are exercised with respect for democratic values, public order and the general well-being of the citizens of Quebec”. And, above all, that “the law can, in this regard, fix its scope and organize its exercise”.

To weigh the pros and cons

When called upon to consider a measure which limits a right or a freedom, the courts examine whether there is a rational connection between the proposed limit and the evils sought to be prevented or stopped. It is also necessary to determine whether the interference is minimal given the ends sought. Once it is established that the infringement is the least intrusive possible, the question must be asked whether there is an adequate balance between the detrimental effects and the benefits of the contested measure. In short, the limits must be based on demonstrable reasons and be proportionate to the gravity of the situation.

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How can we concretely assess the reasonableness of such limits? An example: in 2019, the Quebec Court of Appeal considered the case of Sikh truckers who challenged their employer’s policy requiring them to wear protective helmets over their turban when moving out of their vehicles to their workplace.

The Court recognized at the outset that the obligation to wear protective helmets limits the freedom of religion of truckers because it places a limit on them linked to their beliefs. In its decision, however, the court holds that the duration of these inconveniences is limited in time. He also evokes the testimony of an expert in Sikhism who explained that the choice not to wear anything on his turban is a personal decision, and that no one will be excluded from the Sikh religion for having worn a protective helmet. Above all, the Court noted that the contested policy aimed to ensure the safety of people in their workplace, that it reflected the obligations imposed on employers by legislation on occupational health and safety and that it intended to prevent situations that could lead to the criminal liability of the company or its employees.

By weighing the detrimental effects against the benefits of the measure, the Court of Appeal concluded – in the light of the evidence presented – that the objective of safety prevailed over the temporary prejudices to the freedom of religion of the truckers. In short, the overall effect of the contested policy is proportionate: the measure is considered reasonable and justified under section 9.1 of the Quebec Charter.

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Reasonable limits

The analysis of the validity of the requirements imposed in the fight against COVID-19 proceeds from a similar process.

To determine if the limits are reasonable, the seriousness of the situation caused by the pandemic must be taken into account. Public authorities therefore have to present the evidence on which they are based to impose a measure limiting rights and freedoms, such as the compulsory wearing of a face cover or the obligation to present proof of vaccination. We must then convince that the measure is reasonable given the state of knowledge. The authorities do not have the burden of demonstrating that no other measure could overcome the evil to be tackled: they must establish that it is one of the measures which have a real chance of overcoming the most serious effects of the disease. the pandemic.

The proportionality of the measure is also to be examined. We must consider its severity in view of the gravity of the dangers to be fought. The reasonableness of a limit on rights and freedoms will also depend on the accommodations available for people who cannot meet its requirements – for health reasons, for example.

Debates on the limits that we impose on our rights and freedoms are essential: it must always be possible to question the validity and reasonableness of such measures. But these challenges must be based on rational arguments. We have to go beyond the commonplace of repeating that these measures “undermine” our freedoms.

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