Seite - 110 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE110 the October Crisis. This limitation clause is more categorical than, for example, the guarantee of equality before the law granted under section 15 of the Canadian  Charter  of  Rights  and  Freedoms.14 First, the Emergencies  Act  forbids any and all detention on the basis of enumer- ated traits, whereas section 15 of the Charter is limited to discriminatory  treatment of enumerated and analogous classes. Second, protections offered by section 15 are subject to the section 1 “reasonable limits” clause. The Act does not create the possibility for the federal govern- ment to “detain” individuals on the basis of enumerated traits (for example, require a lockdown of individuals exposed to COVID-19) and justify this measure as “demonstrably justified in a free and dem- ocratic society.”15 Assuming that being infected with SARS-CoV-2 (or being at high risk of same) does constitute a physical disability, a further ques- tion is whether a national lockdown could be construed as targeting individuals “on the basis of” disability. This seems unlikely: such an order would apply to all residents, after all—the aim of physical dis- tancing is to limit channels of transmission between the infected and non-infected. Perhaps there are scenarios where the federal govern- ment, having invoked the Emergencies  Act,  would seek to enforce iso- lation orders specifically targeting those infected with SARS-CoV-2 or at-risk populations, and this would seem to potentially run afoul of that Act’s categorical limitations clause, as an ultra vires form of “detention”16 on the basis of physical disability. Declaring a federal lockdown is one thing, but enforcing it is another. Section 9 of the Emergencies  Act bars the federal gov- ernment from commandeering provincial and municipal police forces. With RCMP officers accounting for approximately 30% of all police personnel in the country, a switch to a federally controlled lockdown could see a drastic reduction in enforcement powers. It is possible that provinces and municipalities would cooperate and join their police forces with the RCMP for a Canada-wide lock- down. But if federal-provincial-territorial cooperation were to be forthcoming, this raises the question of why a federally controlled 14. Canadian  Charter  of  Rights  and  Freedoms, Part I of the Constitution  Act,  1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11, s 15. 15. Ibid, s.1. 16. Physical force is not required under the criminal law definition of “detention”; “psychological detention” is established where the individual has a legal obliga- tion to comply with a restrictive request or demand. R  v  Grant,  2009 SCC 32.