A couple thoughts for your edification, thoughts only unified by a wretched malaise about the lack of detail and creativity that too often creeps into public discourse. The first presents a method to prosecute Canadian police for abuses of power. The second reminds us that Canada’s constitution doesn’t make either level of government completely responsible for health care.



Acts on reasonable grounds

Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.

Justice Lebel, R. v. Nasogaluak

When does a police officer or a police force move beyond reasonable grounds for enforcing the law or using force? This question was painfully begged over the weekend when Ottawa police removed protesters camping at a busy intersection the night before they were set to meet with the Ottawa Police Services Board. Twelve people were charged.

The Criminal Code protects on-duty officers from civil and criminal liability if they are acting ‘on reasonable grounds’. This section is typically used when force is unreasonably used. It can, however, serve as a ‘civil rights offense’ in a way similar to section 243.1 of the American Model Penal Code.

An unreasonable arrest, for example, could be construed as assault or forcible confinement. The balance between police immunity and criminality is not well-defined because it all hangs on the phrase “on reasonable grounds”.

That phrase requires police to act in an ‘objectively reasonable basis basis, given the circumstances faced by the police officer, for the actions undertaken by the officer’. The courts give officers a wide margin of error, but when multiple officers plan a police action, like disrupting a peaceful protest, that margin is significantly reduced.

The question that needs to be asked after the arrests that were made on Saturday morning is: were a series of arrests made by the Ottawa Police Service on the morning of November 21 reasonable given that these protesters were going to meet with the police force’s political masters that day?

*N.B. See also section 7 of the Charter of Rights and Freedoms.*



Health Care isn’t an enumerated provincial power

Or, why don’t people who write read about what they are writing?

There’s talk these days about the level of federal government intervention in the provision of COVID-19 vaccines and in provincial emergency health measures. With cases rising across the country, members of the House of Commons have been calling for increased federal intervention to control the pandemic. While the orchestra in Question Period isn’t reliable news, CBC has explored possible federal intervention under the Emergencies Act or the POGG clause in the Constitution Act, 1867.

Some uncreative minds, like the one pictured below, forcefully suggest that the delivery of healthcare is a provincial responsibility. They don’t cite any sources for this point: they simply repeat an assumption made across the country.

This assumption, as Professor Attaran rightly points up, is incorrect. Canada’s division of powers gives provinces the ability to regulate hospitals (and eleemosynary institutions generally), local works, civil rights, and ‘matters of a merely local or private nature’. Health care does typically fall under these heads, but nothing stops Parliament from legislating in the health sector if there is a national purpose for legislation.

To be clear: the federal government does not need to rely on the Emergencies Act, nor on a claim to ensuring the peace, order, and good governance of Canada. COVID-19 creates a national health care emergency that could warrant federal legislation because a pandemic is not of a merely—and note that word choice, meaning absolutely, only, or entirely—local or private nature.

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