Knowing your rights under COVID-19
We asked lawyer Paul Champ to answer your questions about what is and isn't allowed during the pandemic
Why can't I cross the border to check on my cottage in Quebec? When will I be allowed to take my kids to the local park? Do I really have to wear a face mask to enter that store?
You have questions about what is and isn't permitted during the COVID-19 pandemic. We've tried to get you some answers.
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As part of CBC Ottawa's weekly COVID-19 Q&A, we asked lawyer Paul Champ to answer some of your queries about your rights as a citizen in these extraordinary times.
Here's part Wednesday's conversation on Ottawa Morning. Questions and answers have been edited for length.
Q: Julie Baxter writes: People I know say it's against the Charter of Rights for Quebec to prohibit Ontarians from going to their cottage. But people who have cottages with basements have been concerned that they need to keep sump pumps running. The Quebec government has been saying that checking on cottages for insurance purposes is not considered essential travel. I have property across the river and I want to know what the law says when it comes to crossing borders?
A: There is a charter rights issue at play. Section 6 of the charter covers mobility rights and that protects the right of every Canadian to enter or exit Canada and to travel between provinces. But as with practically all charter rights, there is an exception in the charter that says governments can limit those rights if it's reasonable and demonstrably justified in a free and democratic society. That's the balance that we see in many constitutional cases, and it's what we're seeing right now with the public health orders that Quebec has issued restricting travel to different regions of the province.
When we started seeing some of these orders, when it was one week or two weeks, people are prepared to accept that. But when they get longer, it's not only more difficult for people, but the justification threshold for the government rises. So if these orders continue for much longer, I'm sure we're going to start to see some constitutional challenges to them.
Q: Glenda wrote to say she's worried about her 81-year-old father in New Brunswick who now lives alone and has health issues. She wants to know if travel for what she calls humanitarian reasons might permit her to cross the border.
A: Someone in Ottawa who has a loved one in New Brunswick is going to have a few problems as actually you've got to drive through Quebec and Quebec has that prohibition on travel. But the Quebec order does have an exception for travel for humanitarian purposes. Then once they get to New Brunswick, it also has similar orders around prohibiting entering the province, but it does not have an exception for humanitarian purposes, so there might be an issue there.
I think if I was her and it was that important I would make the argument to the New Brunswick officials if they stopped her, and my guess is that probably they would let her through. But there is also a possibility she might get a ticket or she might get turned around.
Q: Andrei Silianu says he is 67 years old. His question is: Are we allowed to sit on a bench in the park for a few minutes if you are tired, and if yes, for how long?
A: Park benches are specifically mentioned in Ontario's public health order saying you can't sit on them in the parks.
However, I would argue that if an individual needs to sit down because they have a disability or they're elderly, I would argue that's a disability issue that should have been accommodated in the legislation. I think you'd have a decent argument there. But if it's just someone walking their dog and they want to sit and enjoy the roses, that person's going to have a hard time fighting a ticket.
Q: Are you advising people to fight these [bylaw] tickets right now?
A: It depends. One thing is that they're very steep — close to $1,000. So someone has to take a look at that and decide whether it's worthwhile for them to do. The time limit to challenge them is suspended, as with other court time limits right now, so someone can wait until the end of the emergency order, then decide whether they want to fight it or not.
Q: Barb Derick says that stores that remain open have closed their bathrooms, as well as bathrooms in parks. She says people doing shopping may have celiac or urinary issues, and washrooms should be a human right. Is there a case to be made for the right to have public washrooms available right now?
A: That's an interesting point that I bet public officials have not really fully considered. When it comes to washrooms in private businesses, the owner is going to have two issues. One is that it's clear in the public orders that they're not allowed to let someone access their washroom, and then the business owner might say no because well, it's also private property. Not only the washroom user, but also the business owner may get a big ticket, so you might find business owners don't want to take that risk.
There might be a defence to be made if you have a disability like a medical condition that causes you to need to access washrooms more frequently than others. But right now those public health orders are not taking that into account, and right now as it stands, it is formally illegal and there aren't any exceptions.
I think that's a great issue to be raising with public authorities about how they deal with that. They could probably address the issue by ensuring a public bathroom is disinfected regularly. I think there might be a case or an argument there to challenge your ticket if someone gets one.