Professor at the U of A Law explains the legality of COVID-19 public health measures

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The La Paz Region continues to experience citizen resistance to health measures such as masking in public places, and the divisive conversation about personal rights and freedoms versus general community safety still prevails.

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A recent manifestation of this debate took place within the public school board trustee race during last week’s municipal elections, where several candidates running for trustee cited personal rights and freedoms as a primary reason for rejecting the use of masking and vaccines.

Eric Adams, a law professor at the University of Alberta and a constitutional expert, says that since the beginning of the pandemic, the tug of war between freedom and public health measures has created a host of new constitutional problems.

“The pandemic has created conditions and led to public health orders and restrictions on liberty that are really unprecedented,” Adams said.

Adams says that the structure of our constitutional rights is based on a reasonable balance between infringement and circumstances, and the actions we have seen governments take to curb the spread of COVID-19 have been an attempt to walk this line.

According to Adams, it has been clear since the beginning of the pandemic that there has been a potential for very negative outcomes due to the rampant and uncontrolled spread of the virus, leaving governments free to save lives and the healthcare system.

“As soon as the context of a dramatic loss of life and the possibility of a dramatic health care failure became a reality, the government had extremely wide latitude to try to deal with that dire situation,” Adams said.

As the pandemic has unfolded over the past 18 months, Adams has seen numerous legal challenges and questions in court regarding public health restrictions, but the courts have generally held that the restrictions have been necessary to contain the virus.

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Adams says the judges have ruled that they reject most challenges to public health measures because they can easily see the loss of life and damage to the health system.

“To the extent that there are rights, liberties and liberties that are compromised or limited by those health restrictions, it is almost certain that they will be found to be reasonable limits under our constitutional system, due to the nature of the crisis in question. “Adams said.

Adams says that while it is a good thing that these restrictions have helped stop the spread of the virus, the legal system also recognizes that many things, such as commerce and mental health, can be harmed by these restrictions, and there are a number of trade-offs to the virus. make important legal decisions like these. .

While people may disagree with the priorities of the government, which moved to protect the interests of the healthcare system at the expense of the interests of private companies and individual liberty, Adams believes that the government has the authority to decide what prioritize.

“The government, in making the decision on where to draw those lines, or what compensations to legislate through its restrictions, has the constitutional ability to draw those lines,” Adams said.

“So, it is not that you say that one of those things is more important than the other, it is simply the fact that a government with a democratic mandate will always be allowed under our constitutional system, the ability to reasonably limit rights where there is a crisis. public health, ”Adams said.

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One of the main concerns of people who reject public health measures is that these restrictions will be the first in a series of continuous movements to eradicate rights and freedoms until we, as a society, are no longer free.

Adams believes that while the legal community is not of one mind, they generally do not see these measures as a precedent for further erosion of personal freedom.

“I think most legal observers, and I will certainly get into this field, are not particularly concerned that this is the beginning of the end for personal freedom,” Adams said.

“Canadian constitutional rights exist within a particular context that unfolds in real time,” Adams said, adding that “none of these public health measures would stand constitutional two years ago if the government tried to do any of those things.” . Adams said.

Adams is confident that once the pandemic has passed, the context of this restriction of freedoms will cease to exist and they will once again be unconstitutional.

“The courts are not honoring these restrictions forever, they are honoring them in the context of the health crisis that exists,” Adams said.

When asked how the legal community will know if the government has exceeded, Adams says the court will ask two questions: Is there a compelling reason why rights are being limited? Are rights being limited in proportion to the crisis?

“The court does not want a government to use a mallet to open a peanut,” Adams said, “at some level, it wants its restrictions and the violation of its rights to suit its purpose.”

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Adams believes that the same principle will likely apply to private business and employment matters, which are governed by Alberta’s Human Rights Act.

Complaints about restrictions like requiring vaccine passports to enter a facility and firing workers for refusing to vaccinate will fall under this umbrella.

According to Adams, while the mechanics of human rights law are different from the Bill of Rights and Freedoms, he believes that court challenges will likely have the same result.

“We are going to arrive at a very similar result through the human rights perspective as through the charter,” Adams said, because he believes that the human rights perspective is also based on the idea of ​​balance.

“The answer is probably that employers can take steps to deal with their unvaccinated employees because there is a connection between their vaccination status and workplace health and safety,” Adams said.

Adams believes that from the beginning there has been a great deal of misinformation and a number of misunderstandings about how the system works, which has contributed to the toxic debate among people who follow and resist public health restrictions.

“Our constitutional system, I think, is working as it should,” Adams said, “but like everything else in the last 18 months, there are tensions and tensions in that system, and my hope is that we come out of this crisis capable of being reasonably disagree. “