Me William Desrochers.  Photo: Archives

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Me William Desrochers. Photo: Archives

A decision of the judge Dominique goulet is expected early next week.

Me William Desrochers challenges part of the curfew imposed by Quebec. He believes the government is acting “illegally by governing by decree”.

Under this decree adopted on January 8, 2021, it is forbidden for any person to be outside a residence between 8 p.m. and 5 a.m. The lawyer says the government is going far too far with this measure implemented to limit the risk of the spread of the coronavirus.

Me Desrochers carried his cause in his own name. He filed his protest against the curfew on January 18, 2021. According to him, the curfew “unduly infringes his fundamental right to liberty”.

The two parties debated Me Desrochers’ request for a “safeguard order”, that is to say a decision rendered by a judge of the Superior Court who determines the measures to be taken to resolve an urgent situation when the parties can’t get along.

“I am now of the opinion that the government is acting illegally by governing by decree as it currently does and that all decrees and ministerial orders adopted for a long time are therefore illegal, including the health measures put in place,” writes the lawyer in an email to Radio-Canada.

“The Public Health Act is not as big as the government claims it is. Essentially, I firmly believe that only the National Assembly can and should adopt a law governing the management of the present health crisis, because that falls within its competence, ”he continues.

Me Desrochers cited several personal examples to demonstrate the impact of government decrees on rights and freedoms.

Louis-Philippe Lampron.  Photo: Laval University website

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Louis-Philippe Lampron. Photo: Laval University website

“When we say that the curfew is effective … there is not much analysis, apart from an adviser to Dr Arruda … It is purely speculative”, maintains Me Desrochers. “We got out of the first wave without a curfew. “

The Crown Attorney, Me Charles Gravel, asked the judge to dismiss the lawyer’s request for a safeguard order.

“The curfew is a measure that is clearly of interest, to protect the health of the population, it is a measure that has been introduced to help control the spread of COVID-19, to strengthen health measures, but ultimately to protect the integrity of the Quebec health system, ”says Mr. Gravel at the start of his argument.

“Irreparable damage must be proven,” continues Me Gravel.

“Me Desrochers provides you with an affidavit in which he talks about his situation. He claimed to represent the residents of Quebec. He speaks only of himself… we have no proof for all the residents of Quebec. He cannot be called upon to speak for the whole population. “

Judge Dominique Goulet has taken the request under advisement and must render his decision in the coming days.

The curfew, justified or not?

According to the professor in law and human freedom at Laval University, Louis-Philippe Lampron, it is clear that the curfew constitutes a restriction of several fundamental rights. But the question, he said, is not whether or not the curfew infringes on these fundamental rights, but whether it is an infringement that is justified, in this context of a pandemic.

According to the professor, in times of health emergency, case law clearly recognizes a greater margin of maneuver for governments to justify violations of fundamental rights.

“In my opinion, Me Desrochers is right to say that the curfew infringes and restricts individual rights,” says Mr. Lampron. Now, is he violating the Canadian Charter of Rights and Freedoms? We will have to see if the government is able to demonstrate that the curfew is justified in a free and democratic society. If he proves that, he will be able to convince the court to maintain the constitutional validity of the curfew. “