7.1.4 The Constitution

The Constitution is the supreme law of Canada. The main parts were enacted in 1867 and 1982. The Constitution Act, 1867, created Canada as a country, and the Constitution Act, 1982, created the Canadian Charter of Rights and Freedoms (the Charter).

Since the Charter is part of Canada‘s Constitution, it forms part of the supreme law of Canada, and governments are therefore not permitted to pass laws that violate the rights that it guarantees.

Canadians were surprised, therefore, when the governments‘ responses to COVID not only appeared to violate many of the rights that are guaranteed under the Charter but that the courts supported the government in such violations.

There is a reason that Canada (and many other countries) have enacted constitutional protection for individual rights and freedoms. Governments are not infallible, and institutions cannot be trusted on their own to protect individuals. History has demonstrated that even the most advanced societies can enact oppressive measures and trample on the rights and freedoms of some of their members. Canada is not necessarily immune from this, and its government actions should not be immune from scrutiny.

There is no doubt that many of the government measures in response to COVID violated Canadians‘ rights and freedoms under the Charter, including:

• freedom of thought, belief, opinion, and expression (s. 2(b));

• freedom of peaceful assembly (s. 2(c));

• freedom of association (s. 2(d));

• the right to move to and take up residence in any province (s. 6(2)(a));

• the right to pursue the gaining of a livelihood in any province (s. 6(2)(b));

• the right to life, liberty, and security of the person (s. 7);

• the right to be secure against unreasonable search or seizure (s. 8);

• the right not to be arbitrarily detained or imprisoned (s. 9);

• the right not to be subjected to any cruel or unusual treatment or punishment (s. 12);

• the right to be equal before and under the law (s. 15); and

• the right to equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability (s. 15).

The rights under the Charter, however, are not absolute. Section 1 of the Charter provides that the rights and freedoms are guaranteed to Canadians. However, it also provides that the rights and freedoms are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The NCI heard from counsel and witnesses that courts essentially relied on section 1 of the Charter to excuse the governments‘ violations of Canadians‘ rights and freedoms. During COVID, it appeared that every government response was justifiable under section 1, no matter how fundamentally it affected Canadian individuals.

NCI was not made aware of any case in which a court tested the government‘s reasons for infringing the rights and freedoms of Canadians. To the contrary, counsel brought a decision to the NCI‘s attention where a Court of Appeal lambasted a lower court judge for not relying on public health authorities, while noting that many courts have taken judicial notice of the safety and effectiveness of the COVID-19 vaccines. To have a decision at the appellate level pay this much deference to the government is of great concern.

Canada is not a country that is founded on the principle of the collective over the individual. To the contrary, Canada‘s constitution provides that Canada is founded on the rule of law, and it guarantees the rights of individuals. The courts‘ deference to the government in its pursuit of policies that favoured public health, and the protection of the health system over the health of individuals, runs contrary to the rule of law.

Canadian courts‘ support of the governments‘ pandemic measures have set the dangerous precedent that individuals do not have rights during a crisis. This represents a fundamental change in the relationship between citizens and their government. Prior to the pandemic, individuals and government were equal under the law. The government had powers, such as to govern and protect the nation. The citizens, however, equally had power through their guaranteed rights and freedoms.

The precedent appears to have been set now that, during a crisis, the government has all the power, and the citizens can no longer assert their rights and freedoms. If this is accepted, then the government will be incentivized to characterize more and more circumstances as crises in order to assert power over the people.

When Canada adopted the Charter in 1982, it appeared to guarantee certain fundamental rights and freedoms to each individual in Canada. Multiple experts, however, testified to the NCI that the protection of the Charter has turned out to be illusory, with one lawyer asserting that it only took 40 years for the Charter to be subverted by the government.

The pandemic exposed that the Canadian Charter of Rights and Freedoms is weak. It failed to protect Canadians‘ basic rights and freedoms during a time when governments imposed the most broad and draconian measures on society.

The importance of the Charter, however, cannot be understated. It is those people who bring cases to court challenging government actions that open the door to information and bring wrongs to light.

Loss of the Right to Freedom of Expression

Public policies and pandemic measures enacted across Canada were viewed by many as an assault on the rights and freedoms of citizens. The NCI heard that Canada‘s principles and values stem from classical liberalism, which has an extraordinary history over 1000 years; at its core is the assumption that people are born free. The government‘s role is to serve the people. It is not the ruler of the people, and it is not above the law. The state is not privileged under the law; instead, it is bound by it.

Of all of the rights that were violated under the Charter, the NCI heard that the freedom of expression was the most essential, and its violation was the most impactful. Medical professionals were instructed not to speak out against public health messaging and were disciplined by their governing bodies if they did. Scientists were dismissed from their positions, dropped by media outlets where they had previously spoken, and censored on the Internet.

Freedom of expression, belief, and conscience is the cornerstone of a liberal democracy. It is not an accident that it is the first fundamental freedom described in the Canadian Charter. Freedom of expression and tolerance of diversity of opinion fosters respectful debate. Through this, innovation is fostered, and society improves.

The Canadian justice system did not support Canadians‘ freedom of expression where it conflicted with the public health messaging of the government. This was coupled with undue deference to government officials who had unfettered discretion to enact rights-violating measures that went unchallenged by the courts.

The Legality of COVID Injection Mandates

The Commission heard evidence from many Canadians who were required to take a COVID-19 vaccine in order to keep their job. Sadly, the Commission heard from many who were injured as a result.

There is a considerable amount of legislation in Canada that requires employers to keep employees safe. During the time of the pandemic, employers relied on public health guidance to implement measures to keep employees safe. Presumably this is how employers who imposed mask and vaccine mandates justified these measures.

In determining whether an employer should be held accountable for harm that may have occurred as a result of a workplace vaccine mandate, the Commission heard from a workplace safety professional that three questions should be asked:

1. Was the employer required to implement the mandate at law?

2. Was it legal to implement the mandate?

3. Did the employer do the requisite due diligence to ensure the safety of employees as a result of the mandate?

The Commission further heard there is extensive legislation that applies to employers that should have prevented them from imposing a mandate, both legally and as a result of performing proper due diligence. Among these is the Canada Labour Code, provincial health and safety legislation, a Genetic Non-Discrimination Act, and the Criminal Code.

Despite the extensive regulatory framework that exists in Canada to protect employees from workplace hazards and dangers, vaccine mandates were implemented in many workplaces and people were harmed as a result.

Recommendations

The Commission recommends that legislation be enacted prohibiting employers from imposing vaccine mandates on employees.

A. Canada should establish an independent review of its judicial appointment process.

B.  The federal and provincial courts should conduct a national inquiry into their response to pandemic measures, including a review of:

• What role did the court play in protecting the rights of individuals?

• What role should the court play when a government imposes vast rights-violating measures?

• Should the government have the ability to impose pandemic measures on courts and the judiciary?

• What level of independence do the courts have over their own process in implementing publicly recommended or ordered measures?

• Should guidelines or best practices be adopted for case assignment, particularly in cases that involve alleged violations of Charter rights?

C.  Judges in provincial courts should be appointed by provincial governments and not the federal government. This recommendation is subject to review as part of the overall review of the judicial appointment process.

D.  The judicial selection process should involve a review by a panel that involves a wide array of citizens and legal experts with different political views and backgrounds. Recommendations for appointments should be made public.

E.  Canada should establish a fund to pay for legal services for Canadian citizens who bring cases against the government for a violation of Charter rights or who are defending prosecutions that violate Charter rights. Further study could be undertaken to determine the structure and principles governing the fund. Some fundamental principles should include:

• The fund is governed/overseen by a board which has equal representation from constitutional scholars, lawyers, government representatives, academics, and citizens.

F.  Canada and the provinces should legislate parameters for mootness, including a prohibition on mootness when a case involves a violation of the Charter rights of an individual.

G.  An independent inquiry should be conducted into the response of the medical colleges in each province, including a review of

• What role did the college play in protecting the rights of its members?

• What role should the college play when a government makes recommendations for medical practice?

• Should there be specific limits placed on the powers of the colleges?

• What regulations can be put in place to assure that the colleges adhere to the Canadian Charter of Rights and Freedoms?