The curfew is (probably) unconstitutional

The curfew is (probably ) unconstitutional

CHRONICLE & # 8211; Six months in politics seems like an eternity, the saying goes, and the pandemic version could be amended as follows: one day at a time, sweet (lay) Jesus. Particularly if, as Allen said, eternity is long, especially towards the end.

This is how, at the beginning of December, Prime Minister Legault affirmed, smiling confidence in the support, that we will have “a beautiful Christmas”. This, of course, ignoring an Omicron ravaging Europe and (already) well in the saddle even in the Cheuf Nation.

After? From 25 guests to 20. To 10. To six. Multiplication of press conferences, pre-trial balls, and blames directed at the journalistic pack for playing the game of the said ball. Panic on board, in short, to the point of invoking the Roxham Road as a vector of contamination. Anything, but nothing to compare with the resistance piece: the unexpected and peremptory imposition of a … curfew. Impression of déjà vu? Not so much.

Because if that of last January was based on the (legitimate) excuse of collective non-vaccination, recurrence is more the result of improvisation, lack of planning and, depending on repetition, panic total.

However, while a large majority of the population had at the time been conciliatory, even a good player, in the face of the draconian measure, it is now clear that there is no social acceptability, take two. A kind of almost complete rupture of a (already) rather frayed social fabric. Even among the most vehement ambassadors of pro-government action, the odor of the illegitimacy of the measures is now being felt. Not a good sign.

In this particular context, there is no doubt that a challenge to the new measure will sooner or later arise. The chances of success? Good, if not solid, in my opinion.

Without claiming to be a precise exercise, let alone infallible, the courts' test would look, in essence, like this:

That the right to liberty, protected in section 7 of the Canadian Charter, is currently, for obvious reasons, being violated. Ditto also, possibly, with regard to the right to security if not to life, some studies highlighting the potential upsurge in feminicides or other violence caused by the imposed isolation. Re-idem on the psychological side, especially among young people. See, to all these effects, the letter of the 13 Quebec academics published on January 1st.

If it is agreed that the violation of one or more rights provided for in section 7 may be carried out in accordance with “the principles of fundamental justice”, which refer to the conception of justice and procedural fairness adopted in country, it would be absurd for a freedom-killing measure such as a curfew to pass a similar ramp.

The foregoing findings then force an evaluation of section 1 of the Charter, making it possible to redeem a violation if it is justified “in a free and democratic society”. The burden of proof having since shifted to the shoulders of the state, four criteria must then be cumulatively respected by the latter:

a) Does the curfew pursue a real objective and urgent, either that of slowing down rampant contamination? No doubt so;

b) Is there a rational connection between this same objective and the measure of the said curfew? Here is where the shoe pinches the first time: as the researchers Julien Simard and Emma Jean explain, the link in question, at the Quebec level, is “untraceable”. They will be happy to learn that the ineffable Dr. Arruda agrees with them: “The curfew gives a signal and reduces the possibilities of contact. If you ask me if there is a controlled study that shows this, the answer is no. ” A question of feeling, then. Not optimal, to convince a court, let's say;

c) Is there a solution that is less infringing on the rights violated? Knowing that the vast majority of outbreaks come from poor ventilation and ventilation systems in our schools, easy answer, right? Add to this the acceleration (finally) of the third dose, getting rapid tests, compulsory vaccination of recalcitrant or a curfew applicable only to them, and the yard is full, side alternatives;/p>

d) Are all of the above proportional? Are we trying to kill a fly with a bazooka? Possible, if not probable.

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