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What does COVID-19 mean for your civil liberties? Watchdog group on alert

When it comes to enforcing self-isolation rules during the COVID-19 outbreak, Prime Minister Justin Trudeau said nothing that could help is "off the table" — but a civil liberties watchdog is on guard to make sure democracy is not compromised in the process.

PM says when it comes to enforcing self-isolation rules, 'nothing that could help is off the table'

Prime Minister Justin Trudeau says nothing is off the table when it comes to keeping Canadians safe. (Justin Tang/Canadian Press)

When it comes to enforcing self-isolation rules during the COVID-19 outbreak, Prime Minister Justin Trudeau said nothing that could help is "off the table" — but a civil liberties watchdog is on guard to make sure democracy is not compromised in the process.

As states of emergency have been declared one after another throughout Canada, governments now have more powers than they would on a normal day. 

"Emergency measures acts give governments exceptional powers to deal with exceptional circumstances," said Brenda McPhail, the director of the privacy technology surveillance project at the Canadian Civil Liberties Association. 

"But with those exceptional powers, just like the comic book, comes an exceptional responsibility to the public."

Recommendations becoming orders

In Ontario, under the Emergency Management and Civil Protection Act, the province can issue orders such as the one that declared the mandatory closure of non-essential businesses, and the one prohibiting gatherings of more than 50 people at a time. Both of these are enforceable by police.

In Quebec, under the Public Health Act, police arrested a woman who tested positive for the coronavirus after she went out for a walk, violating a quarantine order. 

Quebec City police arrested the woman at around 2 p.m. on Friday on orders from the region's public health department. (Steve Jolicoeur)

McPhail explained that while governments now have significantly more power, "It's not free rein," and they still need to be transparent and accountable to the public.

She added there's been an escalation over the past few weeks, with the government first requesting certain behaviours from the public, before it implements penalties if people don't comply. 

'Nothing that could help is off the table'

This happened when the federal government invoked the Quarantine Act on Wednesday. Under the act, if you come into Canada from another country, you are now under a legal obligation to quarantine for 14 days, and there are penalties if you don't.

Brenda McPhail with the Canadian Civil Liberties Association says it's important to make sure rights and freedoms aren't infringed upon as governments take action to contain COVID-19. 0:41

The act gives the health minister the power to designate quarantine zones and fine or jail travellers who disobey. On Thursday, Chief Public Health Officer Theresa Tam explained that travellers returning to Canada will be subject to random checks to ensure they are self-isolating.

Essential workers are exempt from these rules. 

This came after a stern warning from Health Minister Patty Hajdu last Saturday. She said that Canadians defying self-isolation orders could "put our civil liberties in jeopardy."

And on Monday, Trudeau said, "Enough is enough," as he urged Canadians to stay home.

Prime Minister Justin Trudeau says nothing that could help is 'off the table,' when it comes to enforcing self-isolation rules. 1:00

"We're going to make sure this happens whether by educating people more on the risks, or by enforcing the rules, if that's needed. Nothing that could help is off the table," Trudeau warned.

But McPhail said, when it comes to civil liberties, there are certain "incursions" into our rights and freedoms that absolutely should be off the table. 

"That's not to say that we should be afraid to find interesting, innovative ways to use technology and data in ways that are constrained and necessary and proportionate to help us solve some of the problems raised by this global health crisis," she said.

"But along with the ability to do that, we have to have the assurance that our governments are going to take our rights into account as part of the balancing process that needs to happen."

The Federal Emergencies Act is another option the government could employ. This would empower Ottawa to do just about anything it thinks is necessary to cope with the crisis. Trudeau has said there's no need for that measure — yet. 

Smartphone data tracking used abroad

Moving forward, Trudeau has also left the door open to using smartphone data to track compliance with pandemic rules.  This is an approach already being used in Italy and Germany. 

A pedestrian uses her phone while wearing a face mask in Herald Square March 12, 2020, in New York City. Telecommunication companies have been sharing data with health authorities, including in Italy, Germany and Austria, to monitor the spread of COVID-19. (John Minchillo/The Associated Press)

When Trudeau was asked about it this week, he said it's not something the government is looking at right now, but then reiterated that all options are on the table to do what's necessary to keep Canadians safe during "exceptional times."

The issue was also brought to light after the mayor of Toronto mused about the use of cellphone data. However, the City of Toronto has since said it is not and will not be collecting cellphone location data.

CBC News reached out Windsor Mayor Drew Dilkens's office to inquire if this is something being considered locally. 

The mayor's chief of staff, Andrew Teliszewsky, did not answer the question directly, but said in a statement that the mayor has been monitoring the situation and has been in close contact with police about the implementation of various orders and recommendations. The statement said that most residents are taking it seriously and following the appropriate advice.

"As the federal and provincial government continue to implement strict orders and recommendations, we will continue to monitor the impact on our community," the statement went on to say.

Privacy expert Kristen Thomasen said conversations around the potential use of cellphone data during the pandemic raise a lot of social questions. (Tom Addison/CBC)

Conversations around this possibility are concerning for University of Windsor law professor Kristen Thomasen, who is also an expert on privacy law. 

"I would hope that any entity, like whether it's the City of Toronto, the City of Windsor — anyone who's thinking about doing this sort of tracking is really thinking hard at being very transparent about what kind of restraints will be in place so that people can assess whether this is something that we legitimately want to see in society," she said.

"There's also always the risk too that we see a surveillance infrastructure or surveillance mechanisms that are set up in an exceptional circumstance like this one, but then aren't disabled when the pandemic is over, when we don't have these public health concerns anywhere and that the surveillance continues anyways," Thomasen said.

'Cautiously optimistic'

McPhail said her organization is on alert and watching to make sure decisions are made transparently.

Brenda McPhail with the Canadian Civil Liberties Association says it's important to make sure that decisions made in a time of fear are ones that can be justified after the time of fear has passed. 0:31

"We have to remember that civil liberties and public health are not opposed, and the best solutions for public health are going to be the ones that are optimized to ... provide both public good in terms of health protections, and provide public good in terms of protecting the rights and freedoms that we deserve as humans," McPhail said. 

"What we need to keep in mind is that even in extraordinary times, the ordinary values that hold us together as people who live in Ontario are what is going to see us through this kind of situation. It would be a tragedy if what we lose in this pandemic is not just the health of our economy and the health of our population, but also the health of our democracy."

So far, McPhail said governments have been moving carefully, drawing on science, and providing rationalizations and justifications as decisions are being made.

For now, she's "cautiously optimistic" democracy is winning.

With files from Raisa Patel, Catharine Tunney & John Paul Tasker