(November 3, 2021) How can this be? Contrary to common belief, the charter is not the foundational document upon which our legal system is built. COVID has exposed the Charter’s shortcomings and given Canadians cause to reassess their assumptions about how the law works.
Ten days ago the Manitoba Court of Queen’s Bench was the latest court to rebuff a constitutional challenge to COVID restrictions on civil liberties. Chief Justice Glenn Joyal ruled that provincial public health orders were constitutionally justifiable, joining courts from around the country in embracing the official COVID narrative and defending the authority of the pandemic state. Over the past 19 months, lockdowns, masking rules, traveller quarantines, closed borders, business restrictions and now vaccine mandates have made Canadians less free than they have ever been. Yet so far charter challenges to COVID rules have been spectacularly unsuccessful. During COVID, the charter has been useless.
How can this be? Contrary to common belief, the charter is not the foundational document upon which our legal system is built. Enacted in 1982, it was designed merely as a gloss on what legislatures and governments can do. In fact, not even the original 1867 Constitution, formerly known as the British North America Act, established the law’s first principles. Instead, the preamble of that 1867 Constitution includes an innocuous sounding but significant phrase, acknowledging “a Constitution similar in Principle to that of the United Kingdom.” Essentially, Canada received the British common law system and its legal architecture.
That system is built upon a few core ideas, among them the principle of legislative supremacy: with few exceptions, legislatures can enact any law within their jurisdiction as they wish. Those laws need not be fair, just or reasonable. They do not have to make sense or be justified by evidence. Almost 75 years before the charter, Judge William Riddell of the Ontario High Court wrote that a legislature “can do everything that is not naturally impossible, and is restrained by no rule human or divine. If it be that the plaintiffs acquired any rights … the Legislature had the power to take them away. The prohibition, ‘Thou shalt not steal,’ has no legal force upon the sovereign body.”
The charter limits this power specifically but not generally. Even under the charter, laws do not have to be reasonable or “proportional” unless they infringe a specific charter right. The classic Australian film “The Castle” tells the comical story of a man fighting to save his house from expropriation. His dud lawyer, having no argument to make to the court, alleges a breach of the Australian Constitution. When the court asks what section of the constitution has been breached, the lawyer doesn’t know. “There is no one section,” he offers, “It’s just the vibe of the thing.” In Canada, some are apt to believe that vaccine mandates surely must contravene the charter. But has a specific charter right been breached? Or is it just the charter’s vibe?
Therein lies the problem. In the charter, the right to liberty is not the right to go anywhere you please but rather the right, essentially, not to be locked up without due process. Vaccine mandates oust people from their jobs, education and social lives, but they don’t put them in prison. The right to liberty and “security of the person” prohibit forced medical treatment — but if you go to a clinic to get vaccinated because your job requires it, neither the government nor your employer (which, if it is a private company, is not subject to the charter in any event) has used physical force. The threat of dire economic consequences may be coercive but falls short of holding you down against your will. The charter says that citizens have mobility rights to enter and leave the country, but not to fly on planes (and cannot give a right to enter the United States if the U.S. government closes the door). By maintaining the pretence that people have a real choice between being vaccinated or being stripped of their employment, schooling, social interactions and travels, governments seek to coerce and manipulate without triggering charter protections. The strategy is to accomplish indirectly what could be unconstitutional if they enforced it directly.
The Supreme Court of Canada has insisted that the meaning of the charter is not static but instead that the Constitution is a “living tree” to be interpreted in accordance with changing social circumstances. Courts could, therefore, conceivably read the charter expansively to prohibit COVID lockdowns and vaccine mandates. However, that does not seem likely to occur. The Supreme Court has read the charter over its 40-year life largely through a progressive lens, slowly transforming what was intended to be a roster of autonomy rights into a mandate for collective values, group rights and the priorities of the administrative state. The Supreme Court has not yet heard a charter challenge to COVID rules, but other courts have steadfastly embraced public health policy and prevailing public sentiment in protecting COVID orders from attack, rather than interpreting the Constitution expansively as when various progressive causes have been at stake. Sauce for the goose is not sauce for the gander.
Constitutional protection for fundamental freedoms is most important when the situation is most dire. In Canada, erosion of civil liberties has been unprecedented, but that might not even be the most serious problem. COVID has exposed the charter’s shortcomings and given Canadians cause to reassess their assumptions about how the law works in their country.
Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University. At the time of the hearing of the Manitoba case, he served on the board of directors of the Justice Centre for Constitutional Freedoms, which acted for the applicants in the case.