Some COVID-19 Fines may be Unconstitutional… But I Find it Hard to Care

The British Columbia government recently announced fines for COVID-19 violators. These fines are meant to cut down on the

In particular, the government has introduced fines of up to $2000 for party hosts who violate the rules related to large gatherings. Attendees of these parties who refuse to leave or resist requests to disperse face individual fines of $200. Those who promote parties or events which do not comply with social distancing, as well as those who actively encourage others to violate the rules may face personal fines of up to $2000. Finally, individuals who are abusive or bully employees at businesses or who refuse to comply with the business’s COVID safety plan can face fines of up to $200.

The fines are a response to a recent uptick in COVID-19 cases throughout British Columbia.

British Columbia was heralded internationally as a model of flattening the curve, leading the way through the gentle encouragement of Dr. Bonnie Henry. Dr. Henry appealed to the province’s sense of obligation to their fellow man. And, for a while, it appeared to work. I even wrote for The Lawyer’s Daily on why this was the right approach.

But eventually people appeared to get tired of looking after their neighbours, it seemed. Rather than follow the guidelines put out by the provincial government, British Columbians gathered in large groups and expanded their bubbles to unsustainable sizes. Yes, this was a small minority of people. But with a virus as contagious as COVID-19, a small minority can do a large amount of damage.

The problem grew after Canada Day weekend, when a surge in cases were linked to several parties in the Okanagan. And then public exposure alerts started to increase. Nightclubs, private parties, and events with lots of alcohol served started to cause the numbers to inch back up. All of a sudden, British Columbia was seeing consistent increases above 50 new cases a day.

British Columbia now has the highest number of active cases of COVID-19 at any point in the pandemic. And unlike in the early days, the numbers are disproportionately affecting people in their twenties and thirties.

And so, after a month of pleading for the return of common sense, the government abandoned its gentle touch approach and imposed penalties for the rule-breakers.

The fines were put into effect immediately under the COVID-19 Related Measures Act on Friday, August 21, 2020. And that same night several tickets were issued in Victoria for a large party. The following night, another ticket was issued to an individual at the same residence as the first large party.

Given that level of ambivalence by a small group of clearly connected individuals, it is clear why we needed to impose the fines. While I maintain my view that we cannot police our way out of a pandemic, we can use enforcement to control a small minority of individuals that are putting the majority of individuals at risk.

Remember that by and large, the province still has a buy-in on COVID safety measures from the vas majority of people.

But there are concerns with the fines. Indeed, some of the fines may themselves be unconstitutional.

I think specifically of the fines that correspond to promotion of events that violate the COVID restrictions, as well as those that apply to individuals who encourage others not to follow the guidelines set by Dr. Bonnie Henry.

Section 2(b) of the Charter protects freedom of expression, opinion, and expression of that opinion. While they are obviously wrong, people are entitled to express that masks do not protect from COVID and are going to deprive others of oxygen. The government is not expressly prohibiting individuals from saying this, but they are creating an avenue whereby people can be punished for it. And that’s concerning.

Section 2(c) and 2(d) of the Charter also protect the right to freedom of association and freedom of peaceful assembly. That is, people can associate with whom they wish and can come together to share ideas and express themselves. While it may not be a traditional example, a music festival could be considered an act of peaceful assembly. After all, it is the assembly itself that is protected and not the purpose for which people assemble.

But in-person music festivals are banned.

And if you host a music festival, you face a $2000 fine. Ditto if you promote the music festival. And for each person who attends and says “I have a constitutional right to remain here,” a $200 fine is imposed.

The British Columbia government is confident the laws are constitutionally valid. I am not certain I share that opinion. I believe the laws are in violation of Section 2 of the Charter. That being said, I also think there is a valid case under Section 1 of the Charter to uphold the law notwithstanding the violation.

Section 1 of the Charter requires the Court to consider a number factors in determining whether there is a violation. The first involves asking whether there is a pressing and substantial objective to the law. The second looks at whether the violation is proportional. This involves looking at three elements: a rational connection between the limit and the objective; a minimal impairment of the right; and proportionality.

Applying Section 1 of the Charter to the limits on expression and assembly that are obviously placed by these orders makes it clear that even if the court found a violation, that violation could be saved from a declaration of invalidity.

The pressing and substantial objective of the law is clear: British Columbians need to be safe from the spread of COVID-19. Keeping the curve flattened and reducing the spread of infection and the number of events that can spread disease is important and can save lives.

As for a rational connection between the enforcement penalties and the rules, there is a rational connection. The science supports that COVID-19 spreads in enclosed spaces, from airborne droplets, transmitted between individuals. Keeping groups small, spaced out, and apart helps to reduce the spread of the virus. Restricting those who gather in this way achieves the purpose of the law in an obvious way. It also gives police power to take action against those who choose to defy orders.

This enforcement also impairs the right as minimally as possible. This is shown through the fact that trusting people to do the right thing has, unfortunately, now become an abject failure. People are still free to gather, in small groups, and outdoors, and spaced out appropriately. Police are not taking action to stop protests or expressions of political speech. The actions are taken to stop parties. Further, other types of gathering, like virtual gatherings, are not prohibited.

So it is not the gathering itself that is banned but the manner in which people gather.

For the violations of expression, it is only very specific type of expression that is prohibited: that which could lead to individuals spreading COVID-19 by violating the restrictions on gathering and groups and promoting events that have a significant risk.

Finally, it is proportional. The risk of spreading the virus while asymptomatic means that each person who becomes infected at these events could potentially spread the virus to their elders, their friends, their children, and anyone else the come into contact with before they know they have it. That is the danger.

Look, I don’t like incursions on Charter rights as much as the next person. But we didn’t need to get to this point. A small minority of people who failed to follow the rules, and who behaved disrespectfully toward the life and safety of others put us here. Those of us who have been following the rules all along are not going to experience much disruption of our status quo.

And so for those who cry foul and who say that these laws are unconstitutional, I say this: your complaints are falling on deaf ears from this lawyer. And the sooner we all get on board, stay home, wear a mask, and distance ourselves again, the sooner these enforcement measures can be repealed and we can go back to a normal life.

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