The Honourable Justice B.E. Romaine released her long-awaited decision in Ingram versus Alberta (Chief Medical Officer of Health) on July 31. Her decision forms part of a tight fabric of constitutional opinion as to how constitutional freedom is being interpreted by our courts.
“While they may have infringed certain of the Applicants’ rights under the Canadian Charter of Rights and Freedoms, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 and the Alberta Bill of Rights, RSA 2000, c A-14, these limitations were amply and demonstrably justified as reasonable limits in a free and democratic society pursuant to section 1 of the charter and that they were enacted pursuant to a valid legislative purpose,” Justice Romaine said.
It has become exceedingly evident that Canadian case law on matters dealing with the COVID-19 pandemic is deferential to both the elected representatives’ and the unelected bureaucrats’ interpretation of their constitutional authority in times of crisis.
It is my view that more robust analysis and, indeed, deference ought to be given to the constitutionally protected rights of individuals. The inability of the courts to look beyond the current “government actor deferential paradigm” is a very troubling omen for the future of individual liberty in this country.
The success of our “free and democratic society,” as envisioned in our charter, is due in no small part to the ability of the individual to exercise free speech in public debate about the truth of things, during national crises. If we learned anything over the last several years, it is that debate has been opposed by the whip of public shaming of all those who hold a different opinion from the government narrative on the COVID-19 pandemic.
Justice Romaine’s decision adopts the same approach as the Trinity Bible Chapel appeal decision in Ontario. The Ontario Court of Appeal dismissed both Trinity Bible Chapel and Alymer’s Church of God’s appeal filings where the two churches were fined for holding congregations during pandemic restrictions on indoor gatherings.
Justice Romaine said the role of the court is not to be an “armchair epidemiologist” because she is not “equipped nor inclined to resolve scientific debates and controversy surrounding COVID-19.”
The question before this court is not whether certain experts are right or wrong. The question is whether it was open to the Chief Medical Officer of Health or the Government of Alberta to act as it did in implementing the disputed health orders and whether there was scientific support for the precautionary measures that were taken.
In other words, the role of the court, in her view, is simply to consider whether the government actors had a reasonable peg of plausibility in their science to hang their COVID-19-restrictions hats on. They did not have to be “right or wrong” but rather have some expert evidence to suggest the decisions made by the government actors had some legitimate basis.
Furthermore, Romaine is of the view that the actions of government actors must not “be judged through the lens of hindsight. The question is what was reasonably known and understood at the time each of the impugned Orders were enacted.”
Consider for a moment the implications of this approach now infecting the rationale of the courts across Canada. The courts claim to have no business determining whether the “experts” relied upon by government actors were “right or wrong.”
Yet, when deciding whether the “experts” of climate change were right or wrong, in 2021, Justice Wagner of the Supreme Court of Canada held that “global climate change is real, and it is clear that human activities are the primary cause.” One could not get a more emphatic pronouncement on science. Indeed, could we say, paraphrasing Justice Romaine, that the Supreme Court of Canada has now become an “armchair climatologist”?
Yet, when it came to COVID-19, the courts shied away from making such definite pronouncements. However, note that by their deference to the government actors, the courts are indeed siding with those “experts” counselling the government. To make no decision on the “right or wrong” of the COVID-19 “experts” is indeed having the effect of concurring with the experts who counselled the government actors.
Given the horrendous impact on the lives of millions of Canadians, should it not seem reasonable that the arbiters of our constitutional rights show at least some modicum of interest in knowing whether the basis of such government disruption was in fact right or wrong? Is the justice system now no longer interested in determining the validity of government reasoning that violated constitutionally protected rights?
When government actions are given deference by the courts, the population has no recourse to address the damage such actions cause. That is not a good outcome for the long-term prospect of a “free and democratic society.” So called “experts” have been wrong throughout history on any given number of fronts—consider the debate between health experts who claimed it was fat that was more unhealthy than sugar. We know now that there are a number of fats essential to our health. However, the sugar industry deployed their own “experts” to show that it was fat, not sugar that was the cause of blood clots in the heart. Consequently, the career and reputation of British nutritionist John Yudkin who argued otherwise was destroyed.
Yudkin was right.
The “coronary thrombosis” in the constitutional heart of this country is running rampant. We are left with a judicial lens that prefers to observe from the sidelines and not allow vigorous debate on what it means to be free in times of national crisis and what it means to hold government actors accountable for their actions.
It is reasonable to suggest the failure to do so means that more mistakes will be made, rather than fewer, in future crises. It seems we are unwilling to learn from our past.
