1 April 2020, 2 p.m.
(Disponible en français : Le respect des droits de la personne dans les situations d’urgence)
In addition to obligations during peacetime, States have duties to respect and ensure human rights during wartime and national emergencies. In situations that represent a severe threat to a nation, however, the International Covenant on Civil and Political Rights (ICCPR) – ratified by Canada – allows for certain rights to be unilaterally set aside.
The suspension of rights must be exceptional and temporary and is subject to the following safeguards:
- a state of emergency must be officially proclaimed by government;
- measures that derogate from the Covenant must be strictly required by, and proportional to, the exigencies of the situation;
- measures cannot involve discrimination based on race, colour, sex, language, religion, or social origin;
- the return to full human rights protection must be the objective of any suspension of rights; and
- the declared state of emergency must be no longer than what is needed to return to stability.
Declarations of states of emergency must be made in accordance with the domestic laws that govern such statements and the accompanying exercise of emergency powers.
Rights under the ICCPR subject to suspension include mobility rights, privacy rights, freedom of expression, and certain safeguards related to the administration of justice. However, the ICCPR delineates certain absolute rights that cannot be suspended even during a declared state of emergency, including the right to life, freedom from torture, and freedom of thought, conscience and religion.
Rights protected under the International Covenant on Economic, Social and Cultural Rights (such as the right to food, health, and education) are not subject to similar suspension mechanisms. State obligations to progressively implement these types of rights allow for some adaptation to circumstances, yet their fulfilment must not descend below minimum essential levels.
1. Emergency Situations in Canada
In Canada, emergencies can be declared at the municipal, provincial, territorial and federal levels. Federally, emergencies are governed by the Emergencies Act enacted in 1988. Please see the Library of Parliament’s HillNote, Federal Authorities During Public Health Emergencies, for more information on the provisions of the Act.
The Emergencies Act replaced the War Measures Act, which had been criticized for allowing measures that unjustly curtailed human rights, such as the internment of “enemy aliens” during both world wars, and the arrest and detention without warrant of hundreds of individuals in Quebec during the October Crisis of 1970.
The Emergencies Act explicitly recognizes the importance of upholding human rights during crises by stating that any measures taken under its authority are subject to the Canadian Charter of Rights and Freedoms (the Charter) and the Canadian Bill of Rights and must be guided by the ICCPR. In addition, section 4 prohibits the government from altering provisions of the Act during an emergency as well as interning Canadian citizens or permanent residents “on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
In line with the ICCPR, the Emergencies Act requires the federal government to issue a declaration for all national emergencies, including public welfare emergencies, which can be caused by “disease in human beings.” The Act places several limitations and requirements on the declaration of such emergencies. Declarations of public welfare emergencies expire after 90 days unless previously revoked or continued in accordance with the Act. The federal government may enact measures on limited matters as set out in the Act that are necessary to deal with the emergency, and these measures must be reviewed if the declaration is extended beyond 90 days.
Emergency declarations must be approved by Parliament. Parliamentarians can also table a motion to revoke or amend a declaration and/or its associated orders and regulations, subject to certain conditions. Finally, measures taken while the declaration is in force must be reviewed periodically by a parliamentary committee made up of members from both Chambers.
Following the conclusion of the emergency, the government must hold an inquiry into the reasons for the declaration and its associated measures and submit a report of the inquiry to Parliament.
2. The Canadian Charter of Rights and Freedoms in the Context of a Pandemic
The declaration of an emergency at the provincial, territorial, or federal level in the context of a pandemic has important impacts on the human rights guaranteed under the Charter. For example, measures to prohibit gatherings in public spaces as well as in people’s homes could infringe on freedom of peaceful assembly, guaranteed by section 2(c). Freedom of religion, guaranteed by section 2(b), could also be affected by orders to cease religious services to prevent large gatherings of people.
Decisions to suspend non-essential international or interprovincial travel could conflict with mobility rights under section 6, mandated self-isolation and forcible quarantines could impinge upon guarantees to the right to liberty under section 7, and delays of court proceedings could violate the right to be tried within a reasonable time if charged with an offence under section 11(b).
Importantly, section 1 of the Charter states that these rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In addition, section 33 permits Parliament or a provincial legislature to declare that a piece of legislation may operate “notwithstanding” sections 2 or 7 to 15 of the Charter. Emergency measures in response to a pandemic that become subject to a Charter challenge could be defended on these bases.
3. Privacy Rights in The Context of a Pandemic
Although privacy is recognized as a human right in the ICCPR, it is not explicitly set out in the Charter. The right to privacy is nonetheless protected under the right to be secure against unreasonable search or seizure (section 8) and is considered to be a component of the right to life, liberty and security (section 7). Privacy protections are also contained in federal and provincial privacy legislation, which has been granted quasi-constitutional status by the Supreme Court of Canada (Alberta v. United Food).
According to the Privacy Commissioner of Canada, “privacy laws include several provisions that authorize the collection, use and disclosure of personal information in the context of a public health crisis.” If a formal emergency is declared, these powers may be further extended and can be very broad.
Many countries have already started using tracking tools to collect data on their citizens in order to track the progression and spread of COVID-19, some to great success, like South Korea, and others, like Israel, under much controversy. The Canadian government has so far resisted using such tools, although the Prime Minister has not ruled out the possibility of tracking cellphone location data to limit the spread of the virus.
Should state surveillance occur in Canada, it would have to be deployed in accordance with the law (whether the Emergencies Act or privacy legislation) and aim to be proportionate and minimally intrusive. More importantly, it is unlikely that any erosion of the right to privacy that may occur during the pandemic would give way to the normalization of state privacy intrusions once the emergency is over.
Amnesty International, Responses to COVID-19 and States’ human rights obligations: preliminary observations, 16 March 2020.
Brenda McPhail, “Public Health, Pandemic and Privacy”, Canadian Civil Liberties Association, 19 March 2020.
Brendan Naef, Taming State Surveillance: Reconciling Camera Surveillance Technology with Human Rights Obligations, HillNotes, Library of Parliament, 16 March 2020.
Eric S. Block and Adam Goldenberg, “COVID-19: Can they do that? Part II: The Emergencies Act,” McCarthy Tetrault, 18 March 2020.
Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11, 2001.
John Lindsay, “The power to react: review and discussion of Canada’s emergency measures legislation,” The International Journal of Human Rights, 20 March 2014.
Office of the Privacy Commissioner of Canada, Privacy and the COVID-19 outbreak, March 2020.
Sean Fine, “How measures to contain COVID-19 may clash with Canadians’ Charter rights,” The Globe and Mail, 17 March 2020.
Sonya Norris and Isabelle Brideau, Federal Authorities During Public Health Emergencies, HillNotes, Library of Parliament, 23 March 2020.
Authors: Alexandra Smith, Brendan Naef and Alexandra Savoie, Library of Parliament