Are the NWT’s public health orders justified?
While the NWT government says it’s taking aggressive action to protect people from Covid-19, some legal advocates say its public health orders are overly broad, vague, and may go too far.
On April 10, the territory’s chief public health officer issued a new order banning almost all indoor gatherings and restricting private outdoor gatherings to 10 people.
The territorial government is encouraging people to report anyone not following public health orders and has created a compliance and enforcement task force with around 30 staff to investigate breaches across the territory.
Ryan Clements, a defence lawyer based in British Columbia who practises in the Northwest Territories, said while people should trust public health officials during the pandemic, there’s still room to question whether public health orders are too restrictive.
He pointed to the NWT’s ban on all indoor gatherings (save for a few exceptions) as worthy of debate, particularly given the territory’s low number of cases and high rate of testing. The NWT currently has five confirmed cases of Covid-19, three of which have recovered.
“If you’re talking about people who live and work in Yellowknife and are otherwise largely isolated in their homes, I don’t think I fully understand why that order would apply to them,” he said.
“What this order seems to suggest is that they don’t trust people to organize their lives accordingly.”
Clements gave the examples of not being able to have a family member over for dinner, or spend time inside with a romantic partner you don’t live with, as potentially unfair restrictions.
“That’s astonishing,” he said. “I mean it’s astonishing in regards to civil liberties like freedom of movement.
“For people who are isolated and lonely at this time and scared, having the government tell you that you can’t spend time with your significant other simply because you don’t previously or otherwise cohabitate is a big deal, I think.”
Civil liberties group says order too broad, lacks clarity
Abby Deshman, director of the criminal justice program for the Canadian Civil Liberties Association, said she was struck by how broad the order is and by its lack of clarity.
For example, she said, the order does not define what a gathering is, nor the difference between a public and private gathering.
Under the order’s current wording, Deshman said a line of more than 10 people outside the grocery store could be breaking the ban. A parent and their child walking down the street could also have to maintain two metres’ distance from one another.
“These are things that I don’t think the government intended, at least based on their media statements, but the order itself is so broad and vague that it really captures an enormous amount of conduct,” she said.
Deshman said while people across Canada are experiencing unprecedented restrictions on their liberties and freedoms during the pandemic, governments need to be clear in their legal orders.
Read: Canadian Civil Liberties Association letter to NWT government
They’re also obligated to inform the public about the evidence on which they base decisions, why those decisions are important, and the justification for the restrictions.
“The legal orders you’re putting out need to be very precise, they need to be very tailored to only the measures that you absolutely need to take, and people need to know exactly what to expect,” she said.
“I don’t think this order meets that standard.”
When orders are vague and overly broad, Deshman continued, it’s at the discretion of enforcement officials to interpret their meaning. That’s an issue as it opens the door to potential discriminatory or abusive enforcement.
Deshman outlined these concerns in a letter to the NWT’s justice minister, Caroline Wawzonek, on Friday.
As for whether the order is too restrictive given the territory’s current situation, Deshman said that will only be answered with hindsight. She said it’s a matter of whether restricting peoples’ freedom is justified, adding the constitution is still in effect during the pandemic.
Government wants to be ‘proactive rather than reactive’
While NWT Premier Caroline Cochrane acknowledged the territory’s restrictions are more robust than other jurisdictions with higher caseloads, she says she stands behind them.
“We made agreements when we first heard of Covid-19 that this government was going to be aggressive and I’m standing by that. I will continue to do that,” Cochrane told Cabin Radio’s Covid Corner on Tuesday.
She also said the government wants to be proactive rather than wait for community spread to react.
“We can’t let it slide,” she said. “We still need to keep fighting this battle that we’re all facing.”
Cochrane noted that modelling is a challenge because of the territory’s low caseload, meaning experts can’t easily project future case numbers. But the NWT government is watching what’s happening across Canada, she said, and once the curve begins to flatten in the south, the risk may drop in the North.
What if someone is charged?
There has been uncertainty about what people can and can’t do under the territory’s public health orders.
Earlier this week, rumours (since debunked) suggested a Yellowknife driver and passenger from different households were fined for being in the same vehicle.
So far, no one in the Northwest Territories has been charged for breaching public health orders, but anyone who is could face $10,000 in fines and six months in jail for a first offence.
Clements said if someone is charged, it will likely raise questions about how to interpret the order and whether its restrictions are justified.
He said defence lawyers could also raise questions about whether public health officials have the authority to make such sweeping orders if they don’t suspect those targeted have Covid-19.
Under the territory’s Public Health Act, the chief public health officer has to have reasonable grounds to make a public health order.
“I think a lawyer who would be properly defending their client in some future scenario … they might want to legitimately raise questions about whether the legislation itself granted the authority to the public health officer to take that degree of a step,” Clements said.