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Civil liberties organization says N.W.T. public health orders may be unconstitutional

The Canadian Civil Liberties Association says the territorial government must clarify exemptions in its public health orders which ban gatherings — and that the orders don't match the government's intent.

‘Vague’ ban on public, private gatherings risks discriminatory enforcement

Public Health Officers stop a pickup truck on 48th Street in Yellowknife to remind them about the new public health orders, including new rules about physical distancing. (Katie Toth/CBC)

The Canadian Civil Liberties Association says the N.W.T. government should clarify public health orders banning public and private gatherings because those orders are too broad and may be unconstitutional. 

"When you get really broad, vague laws, people have a very hard time complying with them and it's an unjustifiable restriction on people's liberty," said Abby Deshman, director of the criminal justice program with the Canadian Civil Liberties Association (CCLA).

Deshman wrote to Justice Minister Caroline Wawzonek on April 17, asking the government to address "significant concerns" with the April 10 public health orders, which it says are overly broad and disproportionately limits constitutional rights and freedoms. 

The CCLA said the ban is "unacceptably vague." 

As a result, it "opens the door to discriminatory and arbitrary enforcement by law enforcement tasked with trying to figure out who is on what side of a very fuzzy line."

Abby Deshman says the Canadian Civil Liberties Union, considers the orders by the N.W.T. government to have proper intent, but says they are not clearly written. (Submitted by Abby Deshman)

The orders don't include exemptions for things like construction work involving 10 or more workers or a number of people lining up outside of retail stores. According to the CCLA, read strictly the orders would prohibit two adults from the same household from walking down the street holding hands. 

Deshman chalks it up to a drafting error, and says the orders as they are written don't reflect the government's real intent.

The orders have to be drafted precisely, or they risk being arbitrarily enforced and unclear to the people who have to follow them, she said. 

In other jurisdictions, people who thought they were following the rules have been ticketed over public health violations, she said.

"We're hearing from a lot of people who thought they were doing the right thing. They didn't realize a new emergency order was passed," said Deshman.

In one instance, an Ottawa man was issued a ticket for $880, and Deshman said homeless people are being ticketed for sitting on benches. 

"Really expensive fines, particularly when people are facing unemployment and incredible financial strain ... they really start to edge toward punitive," said Deshman.

When people can't pay their fines, there is a risk of jail time," she said.

"Our focus should not be on punitive enforcement but public education and public health and supporting marginalized people and at-risk communities to be able to protect their own health and comply in a safe way," said Deshman. 

N.W.T. review prompted by CCLA's Nunavut review

Yellowknife North MLA Rylund Johnson said the government can improve upon its orders and make sure they are constitutionally compliant. (Mario De Ciccio/Radio-Canada)

Yellowknife North MLA Rylund Johnson reached out to the Canadian Civil Liberties Association after it conducted a similar review of Nunavut's public health order.

"The legal and technical words matter in this case, and we can't put them aside … simply because we're in an emergency response mode." 

He said he has no issue with the orders made to protect people, but they have to be compliant with people's constitutional rights.

"This is one of the largest infringements of civil liberties in Canadian history, in Northwest Territories' history, and there is an obligation on the justice department to explain how and why it's warranted."

Johnson said he wants a formal mechanism for people to seek exemptions to the orders on compassionate grounds. Otherwise, people will continue to get piecemeal information from press conferences, or by contacting the government about their specific situations, he said.

"This is occurring informally in that people are calling the 811 number and they're sending emails saying 'Hey I have this situation you've never thought of,'" Johnson said.

In one instance, Johnson said a constituent who is a Tlicho citizen but uses a B.C. health care card was unable to board a flight because they could not prove their N.W.T. residency. 

The orders have to be clarified before the Legislative Assembly sits again, said Johnson. 

Department of Justice to respond this week

Justice Minister Caroline Wawzonek says that although her department cannot itself change the orders, it advises all of the N.W.T. government's departments, including the health department. (Mario De Ciccio/Radio-Canada)

In an emailed statement through the press secretary, Justice Minister Caroline Wawzonek said her department received the letter and will respond to the CCLA this week. 

The Department of Health and Social Services administers public health orders made under the Public Health Act, said Wawzonek.

Although the justice department can't modify the orders, it advises the territorial government's departments, including health.

Wawzonek is the formal legal advisor to cabinet — a role she said "helps ensure that considerations of legality, including the Constitution and the Charter, are always part of the operations of government."

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