Knowledge…Shared…Multiplies
In the first article in this series, I submitted that in examining the constitutionality of the provisions of the COVID 19 Bill the test of reasonableness should be applied. This test is used by the OECS Court, the Privy Council, the UK Supreme Court, the European Court of Human Rights, courts in Jamaica, Guyana, Trinidad, Barbados, Australia, India, Zimbabwe, South Africa and other Commonwealth countries.
In treating with legislation which encroaches, tends to or have the potential to encroach on the enjoyment of fundamental rights courts assess whether:
(a) the law in question pursues a legitimate objective;
(b) there is rational connection between the interest the law seeks to uphold and the encroachment on enjoyment of fundamental right authorized by the law;
(c) there is a relationship of proportionality between the interest the law seeks to uphold and the encroachment authorized by the law.
Further, a court will allow for a margin of appreciation which means that the benefit of any doubt is likely to be resolved in favour of the law being constitutional.
Section 4 of the COVID BILL
Section 4 of the COVID 19 Bill is one of the provisions to which objection has been raised.
The relevant parts of section 4 for the purposes of this discussion read:
(1) Every person shall, whenever he or she is outside of his or her place of residence—
(a) wear a mask or suitable covering over his or her nose and mouth;
(b) at all times as far as practicable distance himself or herself at least six feet (6 ft) from any other person.
Section 4 in light of sections 18, 24(1) and 24(3)
On the face of it, section 4, arguably, does not touch and concern any fundamental right. However, on closer scrutiny section 4 could result in encroachment on the right to liberty, and on the right to privacy of the home. To see this danger, section 4 must be read together with section 18 and sections 24(1) and 24(3) of the Bill.
Section 18 provides that:
A person who contravenes or fails to comply with this Act commits an offence and is liable on summary conviction to a fine not exceeding twenty-five thousand dollars and to imprisonment for a term not exceeding twelve months and to forfeiture of any goods or money in respect of which the offence has been committed.
Section 24(1) provides:
It shall be the duty of every police officer to enforce (using reasonable force if necessary) compliance with this Act and with any order, instruction or condition lawfully made, given or imposed by any officer or other person under the authority of this Act, and for such purpose any police officer may enter any premises without a warrant.
Section 24(3) provides:
Any police officer may arrest without a warrant any person whom he or she has reasonable cause to believe has committed an offence against this Act.
Effect of sections 18 and 24(1) and 24(3)
What section 18 does is to criminalize the failure to wear a mask when a person is outside his or her place of residence. It also criminalizes the failure of a person when outside his
or her place of residence to “at all times as far as practicable [to] distance himself or herself at least six feet (6 ft.) from any other person”.
What section 24(3) does is to grant the power to any police officer, from the rank of constable to commissioner, to arrest a member of the public for the offence of not wearing a mass when outside their place of residence. Further, this power can be exercised at any time within three months of the failure to wear the mask. Why three months? Because the offence of not wearing a mask is a summary offence and under Grenadian law the limitation period for filing a charge for a summary offence is 3 months.
What section 24(1) does is to empower any police officer to enter a private home and to use force if necessary if someone who is not a member of the household is seen therein not wearing a mask.
Legitimate objective
No one can reasonably take issue with the proposition that preventing the spread of Covid 19 is a legitimate objective. Hence, it may be that a law which encroaches or could result in the encroachment on the enjoyment of fundamental rights is reasonable. However, the circumstances and extent of the permissible encroachment is the issue.
Effect of Section 4
Section 4 as presently drafted criminalizes the failure to wear a mask whenever a person is away from his or her place of residence. The Bill does not define “place of residence” but the ordinary and natural meaning of place of residence is one’s home and its curtilage.
Based on the prohibition in section 4 the following circumstances would involve the commission of an offence:
- Where a husband and wife who sleep on the same bed are travelling in their vehicle on their way to work and they are not wearing a mask.
- Where boyfriend and girlfriend or lovers who do not live in the same household are found together without wearing masks.
- Where friends or family members visit another household and the visitors are not wearing masks.
- Where a farmer is out in his land by himself and is not wearing a mask.
- Where a worker returning home at night in a desolate street is not wearing a mask.
- Where a worker in his or her vehicle alone is travelling to or from work without wearing a mask.
- Where a jogger up in the mountains by him or herself is out exercising without wearing a mask.
- In each of these cases any police officer, from constable to commissioner, can arrest a person within 3 months of the “offence” being committed.
- Further in some of these cases, any police officer, from constable to commissioner, can enter premises and use force if necessary to enforce compliance.
Hence the following scenario: a constable of police is passing and he observes the presence of persons in a household which is not their place of residence. The persons are there as visitors on the invitation of the owner of the household. The constable observes that the visitors are not wearing masks. Under the Covid 19 Bill as presently drafted the officer has the legal authority to enter the household without a warrant to compel the visitors to wear masks. And if the constable meets resistance he is entitled to use necessary force to impose compliance.
Further, the constable would be within the power given to him under section 24(1) to arrest the visitors for their offence of not wearing masks at any time within 3 months of the incident.
I focused here on the failure to wear a mask. But even more absurd results could be derived when the prohibition on 6 ft. distancing is applied. It would mean for example that husband and wife cannot sleep in the same bed outside their place of residence.
Overreach
It is submitted that as presently drafted the power to arrest without warrant and the power to enter property without warrant are far too wide. The scope of their application is too wide and class of persons to whom these powers are given is also too wide.
For example, I submit that there is no rational link between fighting Covid 19 and exposing a couple who are sleeping in the same bed to arrest without warrant by an inexperienced or overzealous constable of police if they are together in their vehicle without a mask.
There is also no rational basis linked to fighting Covid 19 for arming a constable of police with the power to enter private property without warrant purely on the basis that someone who does not belong to a household may be therein without a mask.
One can undoubtedly envisage cases where the power to arrest without warrant or to enter private property without warrant would be justified on the grounds of fighting Covid 19. However, as presently drafted the powers given, I submit, far overreach the legitimate objective of fighting Covid 19.