Orders issued by the NWT chief public health officer banning public gatherings could fall short of constitutional standards, according to a letter the Canadian Civil Liberties Association sent to Justice Minister Caroline Wawzonek last Friday.
“We have significant concerns about the constitutionality of this order,” wrote Abby Deshman, the association’s criminal justice program director.
She wrote that “the Constitution sets a higher standard for necessity, clarity and proportionality for orders” than those Chief Public health officer Kami Kandola signed.
Deshman outlined two broad concerns with Kandola’s April 10 orders banning indoor gatherings and restricting outdoor gatherings to under 10 people while distancing.
First, there were no clear definitions of public or private gatherings under the order, “which makes these prohibitions unacceptably vague,” she wrote.
Second was the lack of exceptions to the outdoor gathering restrictions.
If the orders were followed to the letter, she wrote, they wouldn’t let a child and parent walk down the street together without being two metres apart. Deshman added that this likely wasn’t the orders’ intention.
“It is critical, particularly at a time that individuals’ basic liberties are being so severely curtailed, that orders are carefully and precisely drafted,” she wrote.
“Failing to do so undermines the legality of the order, creates confusion, and opens the door to arbitrary and discriminatory enforcement.”
Sharing the letter on social media, Yellowknife North MLA Rylund Johnson wrote that the concerns weren’t the “highest priority for our government at this time, however they are still extremely important.”
Minister Wawzonek told NNSL Media Monday that she received the letter and would respond to the association within the week.
While the letter was addressed to her, she noted the justice minister didn’t create and can’t modify the public health orders, which fall under the Department of Health and Social Services.
As attorney general, Wawzonek serves as a legal adviser for cabinet, she said.
“This is a role I take very seriously because it helps ensure that considerations of legality, including the Constitution and the Charter, are always part of the operations of government,” she wrote.
“Keeping an eye on you”
When the government rolled out the emergency measures, enforced by a compliance task force, Health Minister Diane Thom said it was a necessary measure.
“While we provided advice weeks ago, we are confident that it is necessary to put legal weight behind these measures to respond to this unprecedented threat,” she said at the time.
As those rules come into force, Yellowknife lawyer Garth Wallbridge said that association’s letter may have a point, but ideally, these arguments would be phrased more as opinion and include an invitation to work on the file, he said.
Wallbridge was meanwhile supportive of the chief public health officer and cabinet efforts, but he said it is important that orders are well-written, focused and specific.
“I personally believe the encroachments we’re seeing on our constitutional rights at this moment, will be completely removed. I don’t have any concerns about that,” he said.
Michael Gannon, another Yellowknife lawyer, said it was healthy to have a discussion over civil liberties with lawmakers, “not one-way monologue.”
“As people get their liberties constrained longer and longer, it becomes harder and harder to just comply without some transparency as to why we’re doing this, or why we’re continuing to do this,” he said.
For Gannon, it’s important to keep government accountable so residents have their say.
“Everybody’s got to keep an eye on things, and I think that’s what the Civil Liberties Association is saying: We’re keeping an eye on you,” he said.