Dear Mr. Lametti:
The primary purpose of this letter is to request action on the part of yourself, the House of Commons’ Standing Committee on Justice and Human Rights, and the federal Parliament to achieve a better and more equitable balance between:
- The protection of the health of Canadians through government measures adopted in response to the Covid-19 crisis; and
- The protection of the rights and freedoms of Canadians as guaranteed by the Canadian Charter of Rights and Freedoms (Constitution Act, 1982, Part 1).
Firstly, please acknowledge that one of the unfortunate and presumably unintended consequences of the health protection measures adopted to cope with the Covid-19 crisis has been the widespread and prolonged infringement, violation, and denial of the rights and freedoms of Canadians guaranteed by the Charter.
For example, with respect to violations of what the Charter defines as “fundamental rights”:
- Charter Section 2(a) re: freedom of conscience and religion is violated by restrictions on religious gatherings and worship, up to and including the total closures of houses of worship;
- Charter Section 2(b) re: freedom of thought, belief, opinion, and expression is violated when elected officials and civil servants label or dismiss as “misinformation” beliefs or opinions that differ from their governments’ positions, shame and censure those who seek greater balance between health protection and the protection of fundamental rights and freedoms, and encourage the banishment from social media platforms of those expressing different perspectives on how the Covid-19 crisis has and should be handled;
- Charter Section 2(b) re: freedom of expression is further violated by the Colleges of Physicians and Surgeons, which are government bodies to which the Charter applies, when these Colleges send threatening letters to physicians for having publicly expressed their opinions about the grave harms that lockdowns are inflicting on Canadians, and other topics of public concern and public interest;
- Charter Section 2(c) re: freedom of peaceful assembly is violated by government orders that restrict (or ban entirely) peaceful protests. Further, the selective enforcement of health orders – strict enforcement for anti-lockdown protests; little or no enforcement for anti-racism protests – severely undermines the rule of law, one of the core constitutional principles on which Canada is founded; and
- Charter Section 2(d) re: freedom of association is violated by government orders making it illegal for friends to spend time together, for families to eat Christmas dinner together, and generally the freedom of Canadians to associate with each other as they themselves choose.
(For further examples of such violations, please visit the Justice Centre for Constitutional Freedoms.)
Regrettably, it must also be emphasized that these violations have been occurring, not in small numbers and in isolated situations, but for more than ten months and in large and ever-increasing numbers in many communities in every province and territory. Moreover, in addition to these violations of “fundamental freedoms”, other important rights and freedoms guaranteed by the Charter are also being infringed, violated, and denied in the name of health protection. Examples of these are provided for your consideration in Appendix A to this letter and include widespread violations of democratic rights, mobility rights, legal rights, equality rights, and the rights of every citizen and permanent resident of Canada to pursue the gaining of a livelihood.
The denial of the rights of Canadians to gain a livelihood, which includes the right to work and operate a business – a result of government-imposed lockdowns of the economy – is particularly devastating as this measure affects the social, economic, and financial wellbeing of millions of Canadians in every community across the country.
Health under our Constitution is of course primarily a provincial responsibility, although much of the provincial and municipal response to the Covid-19 crisis – including those measures which infringe, violate, or deny the rights and freedoms of citizens – has been heavily influenced by federal initiatives.
Secondly, I acknowledge that Section 1 of the Charter does permit our governments to impose limits on the exercise of the rights and freedom of Canadians subject to one condition: that such limits can be “demonstrably justified” as “reasonable” in a free and democratic society. But a comprehensive and credible demonstration of the reasonableness of the infringements and violations of the rights and freedoms of Canadians arising from the health protection measures adopted by the government would require a full and transparent presentation to the Parliament and the public of:
- Evidence that the government has secured and taken into account all the scientific evidence relevant to the nature and impacts of the Covid-19 crisis – including the perspectives of social scientists, economists, and medical experts who challenge the assumptions on which the government’s positions are based – not just that scientific evidence which supports the government’s a priori assumptions.
- Evidence that the government employed due diligence – and all that due diligence implies – in adopting and implementing policies, plans, and procedures for responding to the Covid-19 crisis.
Fair play? Anti-racism and anti-police protesters have often been indulged, even in large and tightly-packed crowds, while anti-lockdown protesters are frequently arrested and dispersed, a clear violation of the Charter-protected right to equal treatment under the law.
For example, if the governmental response includes the initiation and continuance of societal and economic lockdowns, a demonstrable and reasonable justification would require presentation to the legislators and the public of a clearly written plan. Such a plan should:
· Show exactly why such extraordinary measures are required;
· Identify the nature and magnitude of the anticipated impacts of such measures;
· Propose concrete measures for mitigating the known and foreseeable collateral damage that such lockdowns produce; and
· Specify when these supposedly “temporary” measures will end, and on what basis. To say that lockdown measures will be lifted when the number of “cases” is “low enough”, as governments have been doing, is not a satisfactory criterion and only generates massive uncertainty among workers, employers, and investors.
Appendix B to this letter presents, again for your consideration, the evidence that to date the federal government has not transparently nor sufficiently demonstrated to Parliament or the Canadian public the reasonableness or justifiableness of the infringements and violations of Canadians’ rights and freedoms listed above and in Appendix A – evidence that the governments of Canada are obliged to provide in order to fulfill the one and only condition granted by the Constitution for infringing, violating, or denying those rights and freedoms.
Thirdly, the Charter provides for the protection of the rights and freedoms of Canadians by declaring that: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” (Section 24 (1)) The Constitution also empowers courts of competent jurisdiction to declare that “any law that is inconsistent with the provisions of the Constitution is to the extent of the inconsistency, of no force or effect.” (Section 52(1)).
But allow me to suggest:
- That these provisions for protecting the rights and freedoms of Canadians are insufficient under the circumstances, the process of applying to the courts for relief being unfamiliar to most Canadians and beyond the means of most Canadians to utilize;
- That since not all Canadians have the resources or the expertise which enable them to avail themselves of this right of appeal to the courts – especially those Canadians living in poverty and new Canadians unfamiliar with Canada’s legal processes – inequality of access becomes a further limitation on the exercise of this right;
- That if all the Canadians and groups of Canadians whose constitutionally guaranteed rights and freedoms have been infringed, violated, or denied over the last year were to apply to the courts for redress, that the courts would be flooded with such applications in 2021; and,
- That, most importantly, even in the event of such a flood of applications, the courts are likely to view the health protection issue, particularly in an emergency, to be a policy matter to be dealt with by Parliament and the legislatures, not the judiciary, and that the balancing of health protection with the protection of affected rights and freedoms is first and foremost a political not a court responsibility.
As a lifelong democrat and a former parliamentarian I completely agree that the balancing of conflicting interests and rights in a democracy is first and foremost the responsibility of the duly elected parliament, with appeals to the courts being a measure of last, not first, resort. After all, Canada’s current Constitution was drafted and made law by elected representatives of the people, not appointed judges, so it is elected officials and those reporting to them (the civil service) that have the primary responsibility for protecting the rights and freedoms it guarantees and balancing that protection with other demands that challenge them
This then leads me to a third request, namely that you and your parliamentary colleagues consider and implement other measures that could be undertaken by the Parliament, cabinet, and the civil service – in addition to whatever protections may eventually be ordered by the courts – to correct the current imbalance between the necessary protection of the health of Canadians and the equally necessary protection of their constitutionally guaranteed rights and freedoms.
These additional measures are required because what might have been confined to a health crisis has unfortunately been turned into a social crisis, an economic crisis, a pending financial crisis and even a crisis for children, university and college students, and high-performance athletes – three cohorts of Canadians least vulnerable to the coronavirus and who ought to have been the least affected by efforts to limit its spread.
Allow me to suggest five such measures, namely:
Public recognition by the Prime Minister and the government that the Covid-19 crisis has become much more than a health emergency, that it has become a multi-dimensional public emergency which requires the government to broaden its management beyond the federal Health Portfolio and the advice of the medical community to include a wide range of scientific expertise and the meaningful involvement of other federal departments and agencies with experience and expertise in managing public emergencies.
Inflicting needless damage: Children, university and college students, and high-performance athletes have all been deeply affected by lockdowns, yet represent three cohorts least at risk of serious illness or death due to Covid-19
- The convening of Special Sessions of Parliament, at least every two months, until the Covid-19 crisis has passed, in which each Member will be given an opportunity to give a short report on the health situation in his or her constituency, the positive and negative impacts of the health protection measures adopted, and suggestions for securing a more balanced and effective response. The aim here would simply be to acknowledge and strengthen the representative role of Members of Parliament in relation to the Covid-19 crisis at a time when Parliament appears to be sidelined.
- Action by the Justice Department to conduct comprehensive assessments of the impacts of health protection measures on the rights and freedoms of Canadians; to openly and transparently present the results of such assessments to the Justice Committee, Parliament, and the public for review; to put forward proposals for balancing health protection with the protection of those rights and freedoms for free and open debate; and to adopt and implement those balancing measures enjoying majority support in Parliament.
- Action by the ministers of Finance, Economic Development, and Natural Resources to introduce legislation requiring economic impact assessments to be performed on every major health and environmental protection measure proposed or adopted by the federal government, thus providing the government with the information required to effectively balance health/environmental protection with the protection of the constitutionally guaranteed rights and freedoms of Canadians, including their right to gain a livelihood and enjoy economic as well as physical and legal security.
- The employment of due diligence in the development and implementation of these and whatever further measures are required to effectively balance the protection of the health of Canadians with the protection of their rights and freedoms.
Finally, in drawing your attention to the current imbalances referenced above and in the Appendices to this letter, let me make crystal clear that I fully recognize and acknowledge that the existence and spread of the coronavirus is a serious threat to the health and wellbeing of Canadians requiring substantive governmental action. I myself, due to age and a family predisposition to lung-related illnesses, am personally in a very vulnerable group.
But in the interests of all Canadians, I respectfully ask for your active support in achieving, as the ultimate objectives of the government:
- An equitable balance between the protection of the health of Canadians and the protection of their fundamental rights and freedoms under the Constitution; and
- An equitable balance between the physical wellbeing of Canadians and their social, economic, and financial wellbeing.
Please respond to [email protected]
Preston Manning, PC CC AOE
Evidence of Additional Violations of Constitutionally Guaranteed Rights
- Charter Sections 3 to 5 re: protection of the democratic rights of Canadians. This, it must be acknowledged, is one of the weakest and most deficient sections of the Charter of Rights and Freedoms – the only democratic rights it purports to protect being the right to vote, the right of a citizen to be a member of a democratic assembly, and the requirements that our elected assemblies have limited terms of five years and meet at least once per year.
But surely the democratic rights of Canadians must include more than these and in fact include the right to be fully and consistently represented in a democratically elected assembly, the right to be governed only by laws and regulations duly debated and authorized by such assemblies, and the right of citizens to hold members of such assemblies accountable for their decisions and actions, including the collection and spending of public monies and the incurrence of public debts. This being the case, the self-imposed lockdowns of the Parliament of Canada, the provincial and territorial legislatures, and municipal councils across the country represent a gross infringement, violation, and denial of democratic rights – rights which members of previous generations of Canadians sacrificed their very lives to protect and preserve.
- Charter Section 6 (1) re: protection of the right of Canadians to enter, remain in, and leave Canada is violated by recent Covid-19 screening measures, and was also violated for many months when the federal government refused (with rare exceptions) to process passport applications, which effectively prevented Canadians from entering and leaving the country (a measure since reversed after court actions challenging it).
- Charter Section 6 (2) (a) re: the rights of every citizen and permanent resident of Canada to move to and take up residence in any province of Canada is violated by federal policies and actions, combined with those of the provinces, which drastically and inequitably reduce such mobility rights and impose undue hardship on persons who must travel to and from one province to another out of economic or personal necessity.
- Charter Section 6 (2)(b) re: the right of every citizen and permanent resident of Canada “to pursue the gaining of a livelihood in any province” – which includes the right to work and conduct a business – is violated by government policies and regulations that require millions of Canadians to “stay home and be safe”, that keep millions of workers from their jobs and the incomes those jobs provide, that drive thousands of businesses – in particular small businesses – to the brink of bankruptcy and beyond, that threaten the supply chains which sustain our homes, hospitals, and other vital services, and which indefinitely “lock down” whole sectors of the economy and the national economy itself.
- Charter Section 7 re: protection of the right to “life, liberty and security of the person” is violated in many ways by lockdowns and other measures, including the cancellation of medically necessary surgeries of persons on the health-care waiting lines resulting in death, and the confinement (in prison-like conditions of solitary confinement) of seniors in nursing and long-term care homes who can no longer receive the love, support, attention, and affection of family members.
- Charter Section 15(1) guaranteeing that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. Are not these the equality rights that the Canadian Human Rights Commission in particular is charged with upholding and enhancing? Yet the application of the health protection measures adopted and enforced to cope with the Covid-19 pandemic has been riddled with discriminatory inconsistencies and inequities.
- The freedom of Canadians to shop in “Big Box” stores and commercial malls, provided they adhere to applicable health protection measures, has been largely respected, but the freedom of Canadians to attend a place of worship or social gathering, even if they also agree to adhere to the applicable health protection measures, has been severely constrained. This discriminatory treatment of one group of Canadians in comparison with the favourable treatment of another group is a violation of the former’s equality rights;
- The expression of thoughts, beliefs, and opinions in line with official governmental positions on the nature of the coronavirus threat and how best to respond to it has been encouraged and lauded by every possible means of public communication. But the expression of thoughts, beliefs, and opinions that challenge or even question those governmental positions has been discouraged, curtailed, and even “cancelled” by governmental reactions. This discriminatory treatment of the thoughts, beliefs, and opinions of those who disagree with the governmental position is a violation of their rights to equal treatment under the law with respect to freedom of expression;
- The inequitable imposition of policies and regulations affecting the rights of Canadians to work and make a living also violates the rights of Canadians to equal treatment under the law, examples of this discriminatory behaviour including:
- The favourable treatment of the employees of public institutions in comparison with the less favourable treatment of employees of private institutions and businesses;
- The treatment of those in occupations where it is quite possible to “stay home and be safe” in comparison with those (such as workers in the resource sectors) whose required activities in securing their livelihood makes “staying home to be safe” physically and practically impossible; and
- The treatment of the owners and employees of small businesses in comparison with the treatment of large businesses with greater political influence.
Regrettably, it must be emphasized that these violations of democratic rights, mobility rights, legal rights, equality rights, and the rights of every citizen and permanent resident of Canada to pursue the gaining of a livelihood have affected, not hundreds, but millions of Canadians across the entire country for a period of almost one year. Surely, in a free and democratic society, the existence of such widespread violations of such important rights cannot be allowed to remain unacknowledged and unaddressed.
Evidence that the Federal Government Has Not Yet Clearly and Publicly Demonstrated the Reasonableness and Justifiableness of Health Protection Measures Infringing, Violating, and Denying the Rights and Freedoms of Canadians Guaranteed by the Constitution.
It is recognized that the constitutional rights of Canadians are not “unlimited” – that the Charter of Rights and Freedoms guarantees the rights and freedoms set out in it “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Section 1)
This Appendix presents evidence that to date the federal government has not transparently or sufficiently demonstrated to Parliament or the Canadian public the reasonableness nor the justifiableness of the infringements and violations of Canadians’ rights and freedoms listed in this letter and Appendix A. This is evidence that the federal and provincial governments of Canada, as well as municipal governing bodies, have therefore not yet fulfilled the one and only condition granted by the Constitution for infringing, violating, or denying those rights and freedoms.
- In applying scientific expertise to a public health crisis it is not reasonable nor justifiable for governments to focus primarily on advice obtained from only one or two branches of science – the medical sciences, for example – and to fail to secure or to ignore the advice of other branches of science with significant contributions to make on the issue in question.
For example, our governments decided to enforce “social distancing” on the advice of certain medical experts. But those governments apparently failed to seek or heed evidence on social distancing from social scientists and psychologists as to the negative effects of such practices on mental health. And so in some Canadian communities, the increase in deaths from suicide and drug overdosing, attributed at least in part to the loneliness and isolation which prolonged social distancing can cause, has exceeded the number of death due to the coronavirus.
When the challenge is to find a just balance between health protection and the protection of Charter rights or to find a just balance between health protection and the functioning of the economy on which the social and economic wellbeing of millions of Canadians depends, is it not a violation of the principles of fundamental justice to rely solely on incomplete evidence provided from only one or two preferred perspectives and to ignore and even suppress the consideration of relevant evidence from other equally relevant perspectives and sources?
- Even if it can be proven that practices like social distancing based on limited scientific evidence are still “reasonable”, if that evidence has not been presented in public forums where it could be publicly cross-examined, challenged, and supplemented by other scientific evidence, then regulations and practices based on that limited evidence, and which infringe or violate constitutionally guaranteed rights and freedoms, have not yet been “demonstrably justified” as required by the Constitution.
A “demonstrable” justification of such practices would therefore require its scientific basis to be presented in public forums such as before the Parliament or a provincial legislature, a parliamentary or legislative committee, a public hearing by a quasi-judicial regulatory tribunal, or some other public forum which would enable the government to “demonstrate” and not just allege the reasonableness of the practice to be adopted. But to date, full and open presentations of this type have not been made.
- A comprehensive and credible demonstration of the reasonableness of the infringements and violations of the rights and freedoms of Canadians arising from the health protection measures adopted by governments also requires those governments to present evidence that they have employed due diligence in adopting and implementing policies, plans, and procedures for responding to the Covid-19 crisis.
For example, if governmental responses to Covid-19 include the initiation and continuance of societal and economic lockdowns, evidence of such due diligence would require presentation to the legislators and the public of a clearly written plan showing exactly why such extraordinary measures are required, identifying the nature and magnitude of the anticipated impacts of such measures, proposing concrete measures for mitigating the known collateral damage that such lockdowns produce, providing a schedule for the termination of such lockdowns, and identifying the criteria on which the continuation or terminations of the lockdowns will be based.
But to date, no such full and open presentations have been made – at least not to Parliament and the public. As a former parliamentarian, I find it almost inconceivable that the Government of Canada could consider, let alone adopt, a policy calling for a shutdown of the economy without placing into evidence before Parliament and the public its estimates of the likely impacts of that policy on the lives and wellbeing of Canadians, a complete list of measures to mitigate those impacts, and a schedule and budget for implementing those mitigative measures.
The application of due diligence to the development and implementation of plans and procedures for responding to a public emergency such as that presented by the Covid-19 crisis should also include a full explanation as to why the responsibility for the response was hastily assigned primarily to the federal and provincial health departments instead of those already prepared for and experienced in crisis management. These include, for example, the Operations Planning division of the Canadian Armed Forces, the Public Safety Department of the federal government, and the various emergency management organizations, agencies, and committees of the provinces.
4. Demonstration of the reasonableness and justifiableness of measures adopted to cope with the Covid-19 crisis by the federal government should have particularly included a presentation to Canadians and to Parliament, with regular updates, of the financial impacts of the measures adopted, including:
- The immediate and projected costs of the measures adopted;
- The impact of the financial commitments involved on the federal deficit, the national debt, and the value of the Canadian dollar, not only in the short run but in the long run;
- Measures proposed to cover these dramatic increases in federal spending and to manage the dramatic increases in federal borrowings which they involve;
- The projected increases in the taxes to be paid by Canadians as these debt obligations must eventually be repaid;
- The projected impacts of those tax increases on the cost of doing business in Canada, on the capacity of Canadian businesses to attract capital, and on unemployment; and
- Contingency plans for managing the additional negative financial impacts should interest rates increase in the future.
But to date, no such comprehensive presentation has been made to the Canadian public, millions of whom will suffer the negative consequences of these financial impacts. Next-generation Canadians, for example, are for the most part blithely unaware of these financial impacts and the fact that it is their generation – not ours – that will bear the burden of what those impacts represent. It should be noted that federal government spending is already projected to increase to $621 billion in fiscal 2021, with revenues projected to reach only $275 billion. This means the federal primary deficit in 2020-21 will already be approximately $346 billion or 16 percent of GDP, and still rising.
5. In a truly free and democratic society as Canada purports to be, there should be no circumstance or crisis in which the executive is justified in drastically curtailing or suspending altogether for weeks at a time the operation of such essential democratic institutions as the Parliament or the legislatures.
Nevertheless, in response to the Covid-19 crisis, this is exactly what has happened. On average, the Parliament of Canada sits for around 120 days per year in non-election years. Yet in 2020, with the federal government facing unprecedented challenges, our Parliament sat for only 86 days, a drop of almost 30 percent.
If necessary, for the protection of the health of elected officials and their staffs, our democratic assemblies could be justifiably subject to the strictest health protection measures. Oblige them to meet in temporary venues where maximum distancing could be practiced; require appropriate masking and other measures for reducing the prospects of transmitting the coronavirus; subject members to daily testing. Insulate them, test them, vaccinate them, do whatever – but under no circumstances suspend or curtail the operations of those institutions which are foundational to a free and democratic society.
6. Lastly, it must be recognized that public support is essential for the implementation of any public policy, including those limiting the rights of citizens while seeking to protect their health. Such public support for policies to cope with the Covid-19 pandemic has been assiduously sought and encouraged by the federal government. But that support has been primarily generated and sustained not by “demonstrably justifying” the “reasonableness” of such limits on the rights and freedoms of Canadians but by constantly predicting dire consequences if those limitations are not accepted and by exploiting public fears of those consequences to generate public acceptance of the limitation of their rights.
Utilizing fear as the primary means of generating public support for a government regime or public policy is a distinguishing characteristic of undemocratic, authoritarian regimes – not of genuinely free and democratic governments and countries. Regrettably, many politicians and lawmakers in Canada today have apparently come to believe that the cheapest and quickest way to get public support for any public policy is to mobilize public fears of predicted consequences if that policy is not wholly supported.
But surely practices based on such a belief are neither conscionable nor justifiable – no matter what the threat – in a free and democratic society. If it is the fears of Canadians rather than proofs of reasonableness that are primarily being used to justify the current limitations imposed by governments on the rights and freedoms of Canadians via health protection measures, then such limitations (according to Section 1 of the Constitution Act, 1982) are unconstitutional.