The years 2022 and 2023 have seen numerous court rulings in which Canadian judges upheld government violations of our Charter freedoms of association, expression, religion, conscience, mobility, peaceful assembly and bodily autonomy (security of the person.) Having courts uphold blatant human rights violations is already disturbing. Even more disturbing is the deliberate refusal of some judges to require the government to show “demonstrably” (with persuasive evidence) that its violation of a Charter right or freedom was doing more good than harm. After all, that was the idea of the 1986 Supreme Court of Canada ruling in R. v. Oakes, that requires judges to hold governments accountable by showing their freedom-violating laws, policies, regulations or decisions are rational, minimally violate Charter rights, and actually bring benefits that exceed their costs and harms.When governments claim their freedom-violating health orders and mandatory vaccination policies are based on science, both the Oakes test and the Charter itself require judges to take a hard look at the government’s “science” claim. Judges have signed up for a job that requires listening to competing experts, analyzing their reports, weighing confusing and contradictory evidence, arriving at a conclusion and then explaining why the winning party’s evidence was stronger and more persuasive than the losing party’s evidence.Hence, the following passage from Justice Renee Pomerance’s judgment in Ontario v. Trinity Bible Chapel is disturbing:"Various affidavits were filed on this hearing, including evidence from medical experts. These experts disagree on several points, including the extent to which COVID-19 posed an unprecedented threat to public health, the extent to which the virus can be transmitted outdoors and the extent to which religious gatherings pose a greater risk of transmission than retail settings." "My role is not that of an armchair epidemiologist. I am neither equipped nor inclined to resolve scientific debates and controversy surrounding COVID-19. The question before me is not whether certain experts are right or wrong. The question is whether it was open to Ontario to act as it did, and whether there was scientific support for the precautionary measures that were taken."Justice Pomerance contradicts herself. While declaring that she is “neither equipped nor inclined to resolve scientific debates and controversy surrounding COVID-19,” she nonetheless rules in favour of the Ontario government’s violations of Charter freedoms. That is, she effectively resolves the “scientific debates and controversy” in favour of Ontario, while declaring that she is not “equipped” to do so. In her written judgment, she does not take a hard or serious look at the competing evidence presented by both sides. She does not determine which side’s evidence is stronger. Rather, she upholds Ontario’s violations of Charter freedoms because she feels the government has put forward some undefined and unknown quantity of “scientific support.”Sadly however, this case is not unique. The new standard adopted by some Canadian judges is that our federal and provincial governments can violate our human rights and constitutional freedoms with impunity. All that a government needs to do is claim that some emergency exists, and that there is some vague and indeterminate amount of “scientific support” for its Charter-violating laws and policies. And that will be enough to impress a judge who is “neither equipped nor inclined to resolve scientific debates and controversy.” This new reality is terrifying: “heads” and the government wins, “tails” and the citizens lose.So why continue suing governments when they violate Charter rights and freedoms in 2024 and beyond?First, to draw public attention to this new problem of judges not holding government to account. If our federal and provincial governments can get away with violating the Charter simply by declaring an emergency and pointing to some vague and unknown amount of “scientific support,” then Canadians need to know that some judges are betraying the Charter. This public awareness is needed for the next step: changing laws and policies so as to address this injustice.Second, court actions can force a government to reveal its weak hand when it has little or no science to support the violation of our Charter rights and freedoms. For example, although the constitutional challenge of former Newfoundland premier Brian Peckford was dismissed without justification as “moot,” his court action secured admissions — under oath — from government officials that there was no medical or scientific basis for preventing Canadians from travelling based on their vaccination status. This kind of admission from government officials would never take place by way of a news conference, but a court action can do the trick.Third, court actions can pressure a government into abandoning Charter-violating policies when it lacks the appetite or the confidence to fight. For example, the federal government stopped issuing passports in March 2020, citing COVID-19. Thousands of Canadians could not leave or re-enter Canada, in violation of their Charter-protected mobility rights. Four days after the Justice Centre filed a court action, the federal government started reissuing passports again. In like manner, the federal government dropped its mandatory requirement that Canadians use ArriveCAN when returning home to Canada, after the Justice Centre became the first organization in Canada to challenge this policy in court.Fourth, litigation exposes problems that need to be fixed by our elected representatives. The Alberta Court of King’s Bench invalidated Alberta’s lockdown measures in Ingram v. Alberta, which also happily brought an end to the Crown’s prosecutions against Pastors James Coates and Timothy Stephens, Ty Northcott and his No More Lockdowns rodeo and many others. However, the Court also interpreted Alberta’s Public Health Act as giving unfettered powers to an unaccountable chief medical officer to violate Charter rights and freedoms. But in response, Alberta’s Minister of Justice tabled a Bill that would put public health decision-making authority in the hands of elected officials, consistent with the constitutional principle of democratic accountability.Any battle for liberty requires stamina. Public opinion must change. Public education must improve. Lawyers and judges must learn to prioritize the liberty of the individual over the ambitions of the state. The twentieth century informs us that the road to liberty is non-linear, long, and costly. Regaining our rights and freedoms will take years and possibly decades, not weeks and months. But practicing courage and perseverance will ensure that freedom ultimately wins out over tyranny.John Carpay, B.A., LL.B. is president of the Justice Centre for Constitutional Freedoms (jccf.ca).
