Democracies face many challenges when responding to a crisis like this global pandemic, challenges that do not pose a problem for authoritarian regimes such as China. It is important to keep this in mind when reading positive accounts of the remarkable speed and efficiency with which the Chinese responded to the Covid-19 crisis, albeit once the central government acknowledged the existence of a problem. (Of course the numbers cited by the Chinese government are highly suspect as well.)
All governments must take concerted action to address this health emergency, but in democracies there are limits to state power. Certainly many of the more draconian measures employed in China would not be tolerated in any western democracy, where a range of democratic institutions and oversight mechanisms provide important limitations on government actions. A vibrant independent media provides another. (Think of the countless press conferences held on this topic by the prime minister, members of his cabinet and his advisers, as well as all of their provincial counterparts.) And, as with the threat of international terrorism, a pandemic forces citizens in a democracy to decide just how much freedom they are prepared to sacrifice in order to combat the danger.
Citizen consent is crucial since, unlike police states, democracies do not have automatic recourse to the use of force. Their citizens enjoy many rights and freedoms, usually protected by constitutional guarantees such as the Canadian Charter of Rights and Freedoms, and most are very reluctant to give up these fundamental liberties. Instead, democracies depend on their citizens’ voluntary compliance with the rules and regulations established by a duly elected government. The success of this voluntary system, in turn, relies on the perceived credibility of political actors and the legitimacy of the political system and its institutions. (As the failed prohibition experiment in Canada and the United States demonstrated, this voluntary compliance has limits even in the most established democracies.)
In the current crisis scientific evidence and expertise are the strongest tools that democratic leaders have at their disposal to encourage compliance. Ignoring these valuable tools has made American president Donald Trump an outlier, and his chief medical officer, Dr. Anthony Fauci, a modern folk hero. Trump’s blatant disregard for evidence-based decision-making has also been one reason why the United States – the wealthiest and most technologically advanced country in the world – is one of the hardest hit by the virus.
In Canada, by contrast, a prominent position has been given by our political leaders to Canada’s Chief Public Health Officer, Dr. Theresa Tam, and her provincial counterparts. The credible message provided by all of them has resulted in a high degree of public acceptance of measures to ensure physical distancing. These measures have gone a long way toward “flattening the curve” to date, thereby buying time for health care providers and researchers to put in place the best possible medical response.
At the same time, citizens expect their governments to take decisive action to protect them economically as well as physically in such a crisis. This is nowhere more true than in Canada, where the respect for authority and reliance on government to solve problems has historically been much higher than in most other western democracies. The challenge for political leaders, then, is to find the right balance between providing protection and treading carefully on individual rights.
At least three sets of measures already implemented or considered by the federal and provincial governments, in response to the Covid-19 crisis, have demonstrated the difficulty of this balancing act: imposing limitations on individual civil liberties, infringing on citizens’ privacy rights and relaxing legislative oversight of executive actions including public spending.
With respect to the first issue of individual rights, political leaders in Canada have delivered a master class in this balancing act by moving gradually but firmly (“Enough is enough!”) towards greater restrictions, all the while attempting to build trust and demonstrate the need for such measures through evidence-based decision-making. By communicating frequently, explaining clearly, and constantly repeating the same message they have achieved a high level of voluntary compliance. In addition, both Prime Minister Trudeau and the provincial premiers have reinforced public trust by making it clear that each new restrictive measure — moving from voluntary to mandatory self-isolation, the closing of the border, non-essential services and businesses, the imposition of the federal Quarantine Act and the invocation of provincial public health emergencies — has been taken reluctantly as a last resort. Similarly, the prime minister has repeatedly expressed the view that it is still unnecessary to invoke the most draconian measure in the federal toolbox, the Emergency Measures Act, and that he will not do so unless the current situation deteriorates dramatically and he receives provincial requests for this extra degree of control to be put in place. (Meanwhile in Britain the mother of parliaments approved an emergency measures package that provided, among other things, for the legal retention of fingerprints and DNA, the forcible detention and testing of anyone suspected of being infected, and the prohibition on any public gatherings, for two years.)
While most Canadians are supportive of this gradual, temporary suspension of their freedom of action, they are likely to be less well-informed about the privacy concerns raised within liberal democracies by the pandemic crisis. The potential use of surveillance technology and the consequent invasion of privacy are emerging issues that may become more significant as the need for lengthy periods of enforced sequestration becomes common and/or governments become increasingly desperate. Such technology, including facial recognition and location tracking, has already been utilized elsewhere by both authoritarian regimes such as China and some liberal democracies. Location data has been used in Taiwan to establish “electronic fences” around quarantined houses, alerting authorities if anyone leaves. It has also been used by Israel, which sent alerts to anyone believed to have been exposed to the virus, ordering them to self-quarantine. South Korea has posted detailed information about patients online, while Singapore has provided citizens with smartphone apps to enable authorities to locate people exposed to the virus — a type of electronic snitch line called TraceTogether. In England, allegedly anonymized data from domestic telecom provider O2 was used by authorities to analyze the extent to which citizens had adopted social distancing, and whether distinctions could be made among demographic or societal groups.[1]
To date it appears that Canada has not implemented any such surveillance measures, but the issue has been raised for consideration by all levels of government, including in recent comments by Toronto Mayor John Tory, various provincial privacy commissioners and local health officers, and in a warning by Michael Byrant, Executive Director of the Canadian Civil Liberties Association.[2] As Bell Canada spokesperson Marc Choma noted, the concept of balance is clearly understood by the Canadian private sector as well. “We haven’t been asked by any government for this kind of support”, he stated, “but we would consider it if it helps in the fight against COVID-19 while always respecting privacy laws.”[3] Nevertheless it will likely be necessary for all levels of government to demonstrate both the utility of such technology for the pandemic battle, and the protections they have put in place, in order to ensure public acceptance of such measures, all of which will take time and effort.
The immediate concern over loss of privacy is also accompanied by the longer-term fear that governments will continue to use the technology when the threat has passed, for other purposes. Civil liberties groups fear a dystopian society of Big Brother, while proponents of the technology claim it is already used by the private sector and can be put to better use by governments. Ironically it is in the United States where the least use of this technology has been made by government as huge technology players such as Google and Apple have repeatedly rejected requests by government to share information. One consequence of the pandemic may well be an in depth discussion within democracies between governments and their citizens about the acceptable nature and extent of such public surveillance in future.
Interestingly, the third issue —that of legislative oversight of executive spending and other powers — is one that has evoked a considerable negative response among opposition parliamentarians in Canada but has not, according to recent polling data, been of great concern to ordinary citizens. This is perhaps explained by the fact that citizens are more concerned with the protection of individual rights while parliamentarians are concerned with the protection of democratic processes, although citizens’ pragmatic concerns about the speedy delivery of economic relief may also have been a factor[4], since the opposition were seen by many to be delaying that relief.
In theory the fundamental principle of “no taxation without representation” requires legislatures to sign off on all money bills introduced by the executive and results in the automatic defeat of a government if such a bill is defeated. The issue in this case was the sweeping range of the Trudeau government’s proposed emergency package of economic measures, which the prime minister and his officials considered prudent and essential in the crisis situation, but which the opposition described as a “power grab.”
Government officials had designed the package to allow the government to provide support to individuals and businesses decimated by the pandemic and the virtual shutdown of much of the economy. According to the prime minister, to speed up the process the package temporarily gave the Finance Minister broad powers to tax, spend and loan money without the obligation to repeatedly recall parliament for approval. “We recognize that this pandemic is moving extremely quickly”, Trudeau said. “It is an exceptional situation that requires extreme flexibility and rapidity of response … to be able to help Canadians react to a situation we see is (changing) day by day.”[5] He also stressed that his government “is trying to balance the need to act quickly to help Canadians, with the need to remain accountable to Parliament … to get the money into Canadians’ hands quickly while maintaining our democratic institutions and the values that are so important to us all.”
The opposition, however, disagreed with the extension of such powers to the end of 2021, and to the inclusion of taxation as well as unspecified loans in the package, and also argued that a modified version of the House of Commons could be assembled quickly, as had been the case for the legislation under review. “There are some aspects of the government’s legislation that are undemocratic”, Conservative leader Andrew Scheer stated, and in the end his arguments and those of NDP leader Jagmeet Singh were successful. In order to obtain unanimous consent in the one-day sitting of parliament[6] the government modified the legislation by limiting the term of the package from two years to six months, and by providing for remote meetings of oversight committees during this period.
Whether this
unexpected breach in the previously solid wall of non-partisan cooperation will
have longer-term political consequences remains to be seen, but the issue did
once again highlight the existence of important factors — both societal and institutional — which constrain the response of
democracies to crises such as this pandemic.
Hopefully this experience will educate citizens to the ongoing need for
vigilance to ensure an appropriate balance between the protection of rights and
the protection of health and safety.
[1] For more detailed information on this privacy issue, see Singer and Sang-Hum. “As Coronavirus Escalates, Personal Privacy Plummets”, New York Times, March 23, 2020. and C. Newton. “How Location Data Could Play a Role in Managing the Coronavirus Crisis”. The Verge. March 31, 2020.
[2] C. Freeze et al. “Toronto Denies Using Cellphone Surveillance to Monitor Coronavirus”. Globe and Mail. March 25, 2020.
[3] C. Freeze et al. “Toronto Denies Using Cellphone Surveillance to Monitor Coronavirus”. .
[4] According to a National Post-sponsored survey, nearly half of Canadians would be in significant financial difficulty after 3 months, and one-quarter have already lost employment or know someone who has. For more detail see John Wright. “The Covid-19 Pandemic Through the Eyes of Canadians”. National Post. March 31, 2020.
[5] Hon. Justin Trudeau. Press Briefing. March 24, 2020.
[6] B. Paez. “Feds Proposed Relief Measure Hits Snag in House over Dispute on Spending Powers”. Hill Times. March 24,2020.
