Vaticinator wrote: ↑Thu Jan 27, 2022 8:59 pm
Yes of course, but before it gets there, who gets to determine when policies can limit rights? And is there a process of some sort that must be followed, or is it arbitrary?
Policies don't take effect until they become laws, or regulations.
Laws have to be passed by parliament or provincial assemblies, in the first instance. In the case of COVID regulations the laws were legislation for emergencies, powers handed over to provincial governments "just in case" some decades ago. Again - your various governments have had those on the books for ages. A bit late to complain they're being used, now.
Are there safeguards in place to ensure that doing so is actually in our best interests?
Yes, of course. But those safeguards don't apply retrospectively - the actions the government takes are judged on what was known and believed at that time. You don't get to come back later and say "well we can see now that those actions or rules turned out not to be in our best interests, so you're all in big big trouble."
Are there thresholds or benchmarks that need to be met?
If you're talking about powers passed under the various Emergency Acts (for example the Ontario Emergency Management and Civil Protection Act) then yes, it's specified in the law. Here's the relevant section from that law:
Emergency powers and orders
Purpose
7.0.2 (1) The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms. 2006, c. 13, s. 1 (4).
Criteria for emergency orders
(2) During a declared emergency, the Lieutenant Governor in Council may make orders that the Lieutenant Governor in Council believes are necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or substantial damage to property, if in the opinion of the Lieutenant Governor in Council it is reasonable to believe that,
(a) the harm or damage will be alleviated by an order; and
(b) making an order is a reasonable alternative to other measures that might be taken to address the emergency. 2006, c. 13, s. 1 (4).
Limitations on emergency order
(3) Orders made under this section are subject to the following limitations:
1. The actions authorized by an order shall be exercised in a manner which, consistent with the objectives of the order, limits their intrusiveness.
2. An order shall only apply to the areas of the Province where it is necessary.
3. Subject to section 7.0.8, an order shall be effective only for as long as is necessary. 2006, c. 13, s. 1 (4).
A citizen can go to court if they think the government is acting ultra-vires.
Is there any ongoing burden of proof required in order to keep such limitations in place, or can they just be maintained in perpetuity on the whims of whoever implemented them?
Here's what that same act has to say:
Termination of emergency
7.0.7 (1) Subject to this section, an emergency declared under section 7.0.1 is terminated at the end of the 14th day following its declaration unless the Lieutenant Governor in Council by order declares it to be terminated at an earlier date. 2006, c. 13, s. 1 (4).
Extension of emergency, L.G. in C.
(2) The Lieutenant Governor in Council may by order extend an emergency before it is terminated for one further period of no more than 14 days. 2006, c. 13, s. 1 (4).
Extension of emergency, Assembly
(3) The Assembly, on the recommendation of the Premier, may by resolution extend the period of an emergency for additional periods of no more than 28 days. 2006, c. 13, s. 1 (4).
What protections do the people have to prevent the abuse of this caveat?
That's what the courts are for.
Obviously, the provincial assemblies can pass additional primary legislation, if they wish. If that legislation is contrary to the Charter, the courts will strike it down, if asked.
DId you hear the one about the jurisprudence fetishist? He got off on a technicality.