After nearly six months in the trenches of civil liberties advocacy during COVID lockdowns, two things have become patently clear: governments need boundaries, and Canadians need a fully functioning judicial system to enforce those boundaries.
Since lockdown measures were imposed in March, neither of these needs have been met. Governments have granted themselves unprecedented powers to intrude into our lives, pushing all previous boundaries beyond recognition. And our primary checks on that power, the courts, have to varying degrees declared themselves non-essential at exactly the time they are most needed.
On March 20, in an article for the Post Millennial, I warily noted that if the lockdown went on too long, the costs of the deprivation of liberty and the shutdown of the economy could outweigh the benefits of lockdown measures. I warned that civil strife could ensue, and that the cure could end up being worse than the disease if the government forced public health measures to go on longer than absolutely necessary.
I also expressed concern about the shutdown of courts: that it was unsettling that some of our courts had essentially ceased operations, and that they would have to find a way to ensure access for constitutional challenges and judicial review should governments prolong their emergency powers or infringe our liberties unjustifiably.
Six months later, many of these lockdown measures are proving quite sticky, and arguably permanent. The Justice Centre office continues to be inundated with pleas for help and concerns about government overreach from across the country. Peoples’ lives have been impacted in profound and sometimes very painful ways, and not from the virus itself. Businesses have been shuttered, mental health is precarious, suicide rates have shot up, the elderly have deteriorated or died in what has amounted to solitary confinement, children are being raised in a culture of fear, and young adults are missing significant milestones, like graduations. Whether in K-12 or at university, students are being deprived of normal educational opportunities despite the almost complete absence of risk to their demographic’s personal health and safety.
Many of the restrictions are clear violations of the rights and freedoms guaranteed under the Canadian Charter of Rights and Freedoms. While infringements may be justified in a free and democratic society, they must be proportional to the goals the government is seeking to achieve and must minimally impair the rights to the extent possible. In other words, a balancing act needs to happen. Most government authorities seem loath to conduct that balancing act themselves. They have been laser-focused on a moving target of goals—from preventing hospital overload, to the complete eradication of the virus, whether it is killing in statistically significant numbers or not.
This is why courts are essential—they force this necessary balancing act to occur, and make governments satisfactorily prove that ongoing infringements of Canadians’ rights and freedoms are justified.
Governments understand this only too well. In at least five cases that the Justice Centre for Constitutional Freedoms has undertaken since the lockdown, the government in question has pulled back when litigation has been started or threatened.
In Alberta, the government introduced Bill 10 which granted to any one government minister the power to write new laws without legislative oversight. The Justice Centre wrote numerous articles and news releases to raise the alarm about this unconstitutional and undemocratic overreach, to no apparent effect. After court proceedings were threatened, however, the Alberta government announced that it was sending the Bill back to committee for possible amendment.
In the Aylmer Church of God case, the police were threatening to lay charges against a small-town congregation that was meeting for drive-in services, at no risk to public health. Neither the weeks of discussions between government officials and church leaders, nor the dispute waged in the media between the Aylmer police chief and the pastor of the Church of God, managed to move the dial. Threats of draconian fines loomed large, as the police converged on the church parking lot to videotape parishioners. A Charter challenge was initiated by the Justice Centre in the Ontario Superior Court, accompanied by a press release. Within days, the Order prohibiting religious gatherings was amended to permit drive-in services.
A short time later, we were approached by members of the Orthodox Jewish community who were unable to meet for prayers (even if ‘socially distanced’) in a group of 10 men as required by their religious tradition. Other faith leaders also approached us with concerns about getting back into their buildings—drive-in services were of no use in inner-city churches or in Orthodox communities that do not use vehicles on the Sabbath. Months of lobbying and petitioning by religious leaders for even modest accommodations had largely been ignored. The Justice Centre issued a press release advising that it was commencing legal proceedings. Again, within days, the Order was amended to allow places of worship to reopen, although only at 30 percent capacity and with many additional restrictions.
Federally, passport offices across the country had been shut down for months, with people who could otherwise leave the country being unable to renew their passports without demonstrating “urgency” to the satisfaction of a government bureaucrat. This was clearly contrary to the Charter-protected mobility rights of Canadians. First a legal demand letter was sent to the federal government by the Justice Centre, and after proceedings were commenced in Federal Court, lo and behold, passport processing suddenly started up again, although only by mail.
Most recently, the Ontario government announced that long-term care residents would be allowed access to their family caregivers after months of lobbying, heartbreaking stories in the media of declining physical and mental health and even deaths of elderly residents without this care and companionship, and despite numerous reports from medical and nursing experts arguing that the benefits of reintroducing family caregivers far outweighed any harms. The government had insisted on a risk-avoidance strategy of keeping seniors under house arrest until a lawsuit was filed and announced by the Justice Centre. Shortly thereafter, a new visitor policy was announced to allow family caregivers back in, although it was done by unenforceable guidelines, rather than a binding directive.
It is as if governments are worried about having to prove their case—perhaps because some of these measures were never justifiable in the first place. They seem to understand that there is a line and that they have crossed it. All they were waiting for was someone to hold them accountable.
Legal action, or its threat, helps to establish the boundaries that governments evidently need. Our courts have the critical job of providing checks and balances required in a democratic country that is subject to the rule of law. With a few exceptions, however, they have not fulfilled this responsibility as well as they should have.
The shutdown suspended normal court operations across the country, and hearings were deferred. Since March, in most Canadian provinces a court action could not be started by simply going up to the courthouse counter, as usual, and having a clerk process it. Even with documents now being filed electronically (a positive development that is 20 years overdue), courts would not accept new applications without a hearing or review by a judge to determine if it was sufficiently “urgent.” This new gatekeeping function, which still persists in some courts almost six months later, presents a barrier to access to justice by unnecessarily restricting the crucial first step in court proceedings—one that is normally conducted without question and without judicial involvement.
In all of the cases highlighted above, the government backed down in the face of litigation—but not as far as they might have been ordered to if they had tried to justify their measures in an actual trial or hearing. Now, depending on the region and jurisdiction, a judicial gatekeeper may have the power to decide if backing down a little bit is good enough to avoid a finding of urgency, and to keep the ultimate question of the constitutionality of these measures out of the courts.
In March, preventing social interactions between people on a temporary basis was understandable. In September, with the epidemiological information we now have, it is completely unreasonable. Both governments and courts must fall back to their proper positions behind clearly demarcated boundaries, in the interest of good governance and access to justice.
Lawsuits work. Courts need to work too.