In a new book, Christine Van Geyn and Joanna Baron document the ways in which governments trampled upon Canadians’ long-cherished privacy rights during the COVID-19 pandemic, and the implications this has for future crises.
Just before midnight on New Year’s Eve of 2020, police showed up at the door of a home in Gatineau, Que. Inside were six adults, celebrating the end of what had been a horrible year for pretty much every Canadian. What happened next was an intense confrontation with police.
In early December, the Quebec government had abruptly backtracked after saying family gatherings would be permitted over Christmas, citing the rising number of COVID-19 cases. As a result of this about-face, indoor and outdoor private gatherings were suddenly prohibited in Quebec.
The police were called to this private home in Gatineau because of a neighbour’s complaint, and the confrontation was recorded by the people inside on their cellphones. The video shows police stepping over the threshold of the home, then pulling a man outside as he screams. A tug-of-war ensues as a woman and an elderly man inside the home try to pull him back into the house. A Christmas wreath is knocked off the door and becomes trapped between the group where it is crushed and then trampled. The man in the centre of the confrontation is slowly pulled outside the house as police rip the hands of his friends and family off him. As he is led away struggling, a police officer comes back to close the door, and the family yells at him to get out. The officer yells at the family to get back inside. As the video ends, a woman outside can be heard screaming.
The video understandably went viral and received significant media attention.
Gatineau police later confirmed that two people were arrested and fines were handed out. A police spokesperson told CTV News that the individual seen in the video was charged with assault and obstructing an officer. “The individuals were recalcitrant and refused to co-operate. The individual arrested in the video had assaulted a police officer, hitting him in the face a few times,” said police, in French. The owner of the home was also arrested and charged with refusing to provide personal information. Both were later released at the scene, and fines were issued to those in attendance: $1,546 each.
Mathieu Tessier was one of the men in the video, and he said the confrontation was because an officer had allegedly grabbed his mother’s arm and pulled her outside. “At some point, they had no judgment at all. You can’t treat people like this,” said Tessier. “The truth is … they aggressed us.”
For civil libertarians, this was an example of an unnecessary police escalation and the predictable and inevitable clash between the existence of highly restrictive public health measures and police enforcement. While the video is only one moment in time that doesn’t show the full lead-up to or the aftermath of the altercation, there are serious civil liberties concerns. The video appears to show police entering a home without a warrant, aggressive police conduct towards a family, including elderly individuals, and the culture that led neighbours to call the police to report on a private six-person New Year’s Eve celebration.
Privacy is core to who we are as human beings, and how we guard our autonomy against intrusions from the outside world, including intrusions by other citizens and by government. It is at the heart of what lets us live freely and with dignity, without the fear of being constantly observed by outside forces, either malicious or benign. Privacy rights protect us from the unjustified and arbitrary use of government power by controlling what can be known about us and done to us. Unreasonable interference with our privacy often provides the gateway to the violation of our other fundamental rights. For example, unreasonable detention can often begin with an invasion of privacy.
Privacy rights are protected in Canada by our Charter. Section 8 protects against unreasonable searches and seizure. This includes an unreasonable search of information. Federal and provincial privacy legislation provides protection against the disclosure of personal information. Section 9 of the Charter protects against arbitrary detention or imprisonment.
Several federal and provincial COVID-19 policies violated both sections 8 and 9 Charter rights. Other times, the governments got things right. The COVID Alert App was a bright spot for civil liberties, even though it turned out to be a boondoggle from a taxpayer perspective, with outrageous costs and low uptake. The fact that the COVID Alert app was discontinued is a positive development to be applauded. Governments abandoning failed policies that allow them to increase citizen surveillance is not the norm. Often during a crisis, governments will make changes enabling them to increase surveillance and intrude more deeply into the privacy rights of citizens, and those intrusions become permanent.
On the darker side was undisclosed cellphone location monitoring by government. In December 2021, the independent investigative journalism outlet Blacklock’s Reporter was digging deep into federal government contracts and uncovered a bombshell. The Public Health Agency of Canada (PHAC) had quietly put out a request for proposals (RFP) for a contract that would allow them to continue to track the mobility data of Canadians.
It became a national media story that PHAC had already been monitoring cellphone location data for 33-million mobile devices through a sole-source contract with TELUS for the previous eight months. The new data-collection RFP that PHAC was seeking would track cell location data from 2019 until 2023, and potentially beyond. “Due to the urgency of the pandemic, (PHAC) collected and used mobility data, such as cell-tower location data, throughout the COVID-19 response,” a PHAC spokesperson told the National Post.
And one of the most shocking privacy violations was an Ontario regulation enacted on short notice that gave police the exceptional power to stop and question people outside their homes. The regulation was enacted at the same time as the province enacted a strict “stay-at-home” order that prohibited citizens from even taking children to local playgrounds.
On April 16, 2021, Ontario Premier Doug Ford announced by press release that “effective Saturday, April 17, at 12:01 a.m., police officers and other provincial offences officers will have the authority to require any individual to provide their home address and purpose for not being at their residence.
The regulation is a violation of the Charter’s guarantee against arbitrary detention. Random stops have been considered in other cases, but Ford’s regulation was basically unlimited in scope, allowing police the power not just to stop drivers, but to stop anyone found outside a place of residence. It is worth noting that Ontario Attorney General Doug Downey appeared to have raised concerns at cabinet about the constitutionality of this measure. CBC News reported that sources confirmed to them that during a cabinet meeting Downey had raised concerns about the unconstitutionality of the police powers. These concerns were shot down, and the controversial provision was passed even though Ford’s cabinet included several other lawyers, including Christine Elliott, Caroline Mulroney, Ross Romano and Prabmeet Sarkaria.
Both the CCF and the Canadian Civil Liberties Association (CCLA) put out statements that they were preparing litigation. Many police departments announced that they would not be conducting random stops despite the new powers. This was good news. Police need to interact with the community and have spent years trying to build community trust. Randomly stopping and harassing families walking outside would quite obviously erode this trust. And, of course, police also need to abide by the Charter. It was sensible for police to announce they would not enforce an almost certainly unconstitutional regulation.
The Ford government quickly walked back the sweeping new police powers just one day later. “We moved too fast,” Ford said, “Simply put, we got it wrong. We made a mistake.” CBC News journalist Mike Crawley reported that a source disclosed to him that “Ford was especially rattled by the way police force after police force announced they would not use the powers the government gave them.”
One of the most depressing developments of the pandemic from a privacy and culture perspective was the development of COVID-19 snitch lines. Governments at times relied on private citizens to act as enforcers of lockdown policies through COVID-19 “snitch lines,” where neighbours called police or public health to report each other’s social distancing failures, creating a culture of fear and distrust, undermining community cohesion, and exacerbating division along lines of socioeconomic class and even race.
These “snitch lines” turned neighbours against neighbours, causing people to wonder whether they should turn their community members in for violations of “social distancing” rules. The thought that neighbours could be monitoring you for potential violations of often ambiguous “social-distancing” requirements leaves many Canadians uneasy. There was a potential for snitch lines to be abused by those out for revenge on neighbours they do not like, and the resulting atmosphere diminishes trust and respect between people who ought to be able to get along.
The COVID-19 pandemic and government responses to it have changed civil liberties in Canada forever. Incidents such as confrontations with police, expanded police powers, undisclosed cellphone location monitoring and snitch lines have underscored that there is a delicate balance between safety and our constitutionally protected rights. It is a reminder that protecting these fundamental freedoms requires ongoing vigilance, transparent policies and legal safeguards as well as ensuring we remember government responses. If we don’t learn from the mistakes of the pandemic, government will repeat those mistakes in the next crisis.
Copyright 2023. All right reserved. Excerpted with permission from “Pandemic Panic: How Canadian Government Responses to COVID-19 Changed Civil Liberties Forever,” set to be released by Optimum Publishing International on Nov. 4 (Post readers can get 25 per cent off by using code NP).