Is Quebec's Curfew Constitutional? We Asked A Rights & Freedoms Expert About The Issue

As police across the province hand out tickets in line with the Quebec curfew order, there has been a lot of talk about whether some fines have been fair.

MTL Blog reached out to Cara Zwibel, director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association (CCLA), to learn more about the curfew and the delicate and intricate situations in which the governments and courts find themselves when it comes to the new protocols.

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According to its site, the CCLA "fights for the civil liberties, human rights, and democratic freedoms of all people across Canada."

Questions and responses have been edited for clarity.

Is the Quebec curfew constitutional?

The question of whether or not it's unconstitutional is ultimately a question for a court.

A curfew is for sure a violation of rights that are protected under the Charter of Rights and Freedoms.

But the Charter rights are subject to reasonable limits. There are questions of whether or not this is a reasonable limit. I think reasonable people can disagree about that, and ultimately that would be for the courts to decide.

The things that courts would be looking at would probably be: Is there evidence that this is something that is going to be necessary? Is there evidence that this is something that's going to be effective in achieving its purpose? Is the purpose important?

Assuming the purpose is to limit the spread of the virus, that would probably be an objective that courts would say is an important one, but then the question becomes, "does this measure achieves that purpose?"

Even Dr. Horacio Arruda has acknowledged there isn't clear evidence on the effectiveness of a curfew, so that would present a constitutional problem for courts.

Courts would also be pretty deferential to governments and acknowledge that governments are facing a very challenging situation and there is a particularly heavy strain on health resources. A court might say this is reasonable.

This issue isn't easy to assess in a vacuum. It would depend on the type of evidence that the province could bring forward for why they're doing this, what else they've tried and whether this is the least restrictive thing they could do.

Having said that, there are probably instances where a ticket has been applied, where a court would have a real constitutional concern, such as ticketing the homeless.

The really concerning thing about a curfew is that at a certain time of day, the police have the right to stop and question anyone who's out, and that is, unfortunately, going to lead to abuses and going to be disproportionately experienced by the same communities that are always the subject of more police attention and scrutiny.

How can you contest a ticket in Quebec?

We are inviting people to let us know at the CCLA. We have a form that we were using in the first wave when people were getting tickets for being in the park and things like that.

The CCLA wants to know what's happening on the ground and where we can best direct people in finding legal help.

The ticket usually should explain what your options are, how to pay or where to go if you want to contest it.

It's always a good idea to take some notes of your own recollection of events because I have a feeling that it may be a while before some of these things get to court.

There are cases where people are justified in contesting a ticket.

I watched the minister of public safety talk about the curfew and the fact that police are trained to use their discretion all the time and that people with legitimate reasons don't need to worry.

Unfortunately, there are already a number of cases where it seems like that's not how things are playing out.