Two recent provincial court judgments concerning the Charter of Rights and Freedoms are deeply concerning.
I’m not a lawyer, but I’ve been around them most of my political life and had the good fortune of having several legal minds in my Newfoundland cabinet to advise me regularly.
And going to the Supreme Court of Canada three times when I was premier can focus the mind. Call it learning by osmosis.
The two judgments in question:
• Beaudoin versus British Columbia 2021
• Gateway Bible Baptist Church et al. versus Manitoba et al. 2021
What’s most disturbing is the misuse or lack of use in these cases by the judges of a vital part of the charter: “whereas this country is founded on the principles of the supremacy of God and the rule of law.”
In the first case, the judge actually refers to these two important principles: “The preamble to the charter invokes ‘the supremacy of God and the rule of law’ as principles upon which Canada is founded.”
But unfortunately, the judge changed the wording and grammar. The statement actually reads, “whereas this country is founded on the principles of the supremacy of God and the rule of law:”
The actual wording in the and the colon at the end mean that it’s in considering these principles that the charter is to be interpreted.
The judge’s rewrite makes the whole sentence a passive one that talks about Canada’s founding with a period at the end. More or less, the judge appears to be saying: I’m finished with it now that I’ve mentioned it.
This relieves the judge from examining these two principles. And these principles aren’t mentioned anywhere else in the judgment.
But these two principles appear at the very beginning of the charter because they’re meant to be considered.
In the Manitoba case, the judge made no mention of the opening statement in the charter, making what’s to be considered in the charter up to the judge.
These judges seem to want to shy away from God and the rule of law. Are they both suddenly off-limits?
There’s no mention anywhere I can find in these judgments about the intent of those who crafted Section 1 of the Charter.
As one who took part in that crafting, I can say that the intent of Section 1 was that such override would apply to a dire national situation such as if the state’s existence was at stake; if it faced a war; if it faced an insurrection.
It wasn’t intended to apply to a manufactured emergency like the COVID-19 pandemic, where there’s a 99 per cent recovery rate and a less than one per cent fatality rate!
Note in the charter’s Section 4 (2):
“In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.”
Do you think it plausible that the crafters of the Charter would have a different set of conditions applying to taking away personal rights and freedoms than extending the sitting of Parliament?
Then there’s the whole idea of the tests of Section 1. Two stand out: “demonstrably justify” and “free and democratic society.”
In the judgments referenced above, there seems to be a deliberate effort to play down “demonstrably justify.” And “free and democratic society” gets ignored altogether.
In the Beaudoin case, the judge seems to reduce everything to “reasonable limits.”
But the charter says, ”demonstrably justify within reasonable limits.” And in the context of a ”free and democratic society.”
The government is to demonstrably justify its actions. In public policy terms, that’s something like a cost-benefit analysis: to prove that the benefits of their proposed actions are greater than the costs – that we really need to take away people’s rights and freedoms to mitigate the situation.
Do we see anything like this in the judgments?
No, we just see a litany of public heath orders based on COVID-19 case counts that can be wildly inaccurate. There’s no actual proof of meeting the demonstrably justify test.
And it’s not like there was no evidence. In April 2021, Simon Fraser University Prof. Douglas Allen produced a report that concluded the cure was as bad if not worse than the disease.
His concluding paragraph: “The progression of understanding about the virus has improved over time, but it has not fundamentally changed. By August (2020), there was enough information available to show that any reasonable cost/benefit analysis would show that lockdown was creating more harm than good. It is unreasonable to suggest that a proper decision could not have been made in the fall when the second wave of infections hit.”
You would think such information would make governments ponder and halt what they were doing. As early as August 2020, data was pointing to big lockdown problems.
Surely the judges were aware of such data. In the Manitoba case, the judge’s decision was rendered six months after the Allen report’s release.
At no time do the judges define the “free and democratic society.”
So, what does “free and democratic society” mean?
One would think it means involving the people in parliamentary democracy through parliamentary committees for the duration of the problem. It would involve calling experts from outside government, overseeing government action and making government report to the people.
But none of this happened. And now, the courts have given the governments a pass on adhering to Section 1 of the charter.
Of course, the charter as written has been under attack for a long time. ‘Living tree’ exponents say the Constitution is to reflect the times, even without a word being changed by elected representatives.
But this isn’t democracy – this is rule by the unelected, which is the antithesis of parliamentary democracy.
It’s time Canadians stood up and opposed such judicial interference.
The Constitution Act includes an amending formula. So constitutional change is possible; you just have to go about it in a fashion consistent with the conventions of the nation. Elected representatives can and should be the ones to amend the Constitution, not unelected judges.
In , John Stuart Mill wrote in 1859: “Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread , chiefly as operating through the acts of public authorities.”
To prevent this abuse, there should be checks on power.
The courts should be mindful of McGill University Prof. Christopher Manfredi, who wrote: “Rights-based judicial review taken to its extreme becomes an anti-democratic power, wielded by courts to alter the fundamental character of a nation’s constitution without significant popular participation or even public awareness – judicial supremacy, in other words, is overtaking constitutional supremacy.”
Constitutions are different than laws. They’re the principles that form the glue of a nation. They encompass values, permanence and sustainability. When you breach values, you breach the nature and fabric of the nation.
The Charter of Rights and Freedoms encompass those values: supremacy of God, rule of law, freedoms (speech, religion, conscience, the press, of assembly and association), and rights (of mobility, to earn a livelihood, life, liberty and security of the person, equality before the law) that each Canadian possesses.
The violation of those principles in the last two years can’t be justified. They defy the intent of the charter.
Democracy is fragile: once lost, it’s difficult to regain. Our courts have a duty to uphold the Constitution as written.
Brian Peckford is a former premier of Newfoundland and Labrador and the last living first minister who helped craft the Charter of Rights and Freedoms. This commentary was submitted by the .
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