Emergencies Measure Act.
The Covid
response has been a series of Charter infringements and breaches in my opinion.
I have seen no clear data to support many of the measures taken. One can argue
whether or not the steps taken were warranted, there is no argument that the
manner in which they were taken failed to attend to the spirit of the Charter
of Rights and Freedoms and civil rights generally. This reality is part and parcel
of the degradation of civil rights in Canada, both governmental and in the populace.
Further, there has been utter contempt for people attempting to exercise their
charter rights. Perhaps most alarming has been the press’s complete abandonment
of the core issues related to civil rights either through ignorance or
willful blindness. The vitriol has been fueled by political concern and the “follow
the science mantra”, science offered by vested interests, science focused on one
element of public concern rather than a fulsome view, the squelching of public
discourse, the unparallel zealotry forcing people with legitimate concern to
medical treatment has been frightening to watch.
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The
Pandemic is a circumstance where the Emergencies Measures act was designed to
be used. As I stated previously, “Had the Emergency Measures Act been activated
at the outset of the pandemic, it would be a matter of public record as to why
and its purposes, it would have been subordinated to the Charter and subject
oversight by parliament, thus providing a legal umbrella to administer the law under,
specifically the Emergency Measures Act. (EMA) and then the law generally. In
this way, social distancing, and other measures, such as restricting the right
to assembly, liberty, mobility and medical choice would have been exercised
under the EM act - rather than arbitrarily as they were in many cases. This
process would have provided a clear statutory point of delineation - "date
x" civil rights were intruded on and on "date b" it is now over.
Further, and as concerning, in allowing the provinces to do this on an ad hoc basis, absent
federal authority clearly given, federal paramountcy is weakened. It is, for
this reason, that I am seeking input from various parties for information
on the federal government’s direction on these issues.”
The Emergencies
Measures Act. is designed to attend to the gradation in events, from large-scale domestic concerns, like the Pandemic, to a state of war – and there are
provisions that are peculiar to each circumstance in the act. By way of
example, there was a perception on the part of the government that certain health
measures were required to stop the spread of the Covid 19, these measures
intruded in varying degrees on people’s Charter rights, and they did so in a
manner that was exterior to fundamentals law. The proper approach would have
been the implementation of the EMA with parliamentary oversight which included
an EMA activation mission statement, the assumptions made in activating the act
and then a clear set of metrics that verified or refuted said assumptions which
would have been reviewed in short and regular intervals. Further, the inherent time constraints in the
act could only permit the extension of the EMA’s use should the metrics indicate
the use was warranted. Most importantly, the assessment of the varsity of the EMA’s
use would be given to an actor at arm’s length from the government so as to
avoid politicization of the process – leaving parliament to act solely on facts
as opposed to rhetoric.
In British
Columbia, the implementation of Vaccine Passports (VPs) amounts to a de facto forced
vaccination program. The manner in which the government designed the VP skirted
a direct charter breach by limiting the use of the VP to nonessential services –
this is a clear demonstration that the government fails to respect the spirit
of the charter and this precedent weakens the charter, or it will if it goes
unchallenged. The VP policy infringes on freedom of association in that it
precluded association and it shaped the nature of the association. Had the
government offered the VP’s as a service to which businesses and people could
choose to subscribe, then there would have been no breach. People have the
right to associate on whatever basis they choose, and each party can determine
the risk level of that association. The greater concern of overwhelming the
hospital system holds marginal weight – one can demonstrate, I think, that the government’s
adherence to system limitations was of their own making – there was a clear
opportunity through the creative deployment of resources to expand capacity. Further, it is hard to find a clear
justification for the extent of government action relative to risk. Nor is it
clear that mandatory intrusion on civil rights was justified, that is to say,
that there is credible work that challenges the efficacy of mandates as people
tend to “lockdown” of their own accord as they perceive risk.
The
pandemic was the reason the EMA was developed, it clearly meets the rationale expressed
in the EMA and would have clearly withstood the rigours of statutory interpretation.
In EMA’s absence, the measures taken by the provinces were, as I read the
charter, illegal in many instances.
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The
actuation of the EMA in response to the trucker’s protests is less clear. The
protests are isolated to just a few locations and dealing with civil disobedience
is regularly managed under the rubric of laws to maintain domestic order –
these events failed to meet the threshold for a national emergency. The
protesters were in the main non-violent – theirs’s was an effort in civil disobedience
in the same magnitude of protestors blocking a road or a railroad as we see
often related to environmental issues. The marginality of the application of
the EMA was exacerbated by the reality that the mandate that provoked the
protest was in large measure overtaken by events. I think the courts will view
the use of this act in this way as heavy-handed at the least.
The Canadian
constitution, Bill of Rights and Charter of Rights of Freedoms are the bedrock
that our legal system rests upon, and by extension, our society rests upon them.
Unless we defend this body of law, it will be reduced to words on a page. The principles
expressed in this body of law have emancipated more than half of humanity in 800 hundred years. They are born of the great enlightenment, and they gave
birth to women’s suffrage, and reproductive rights, they stopped the forced sterilization
of the handicapped, they’ve almost, by not entirely, protected against the
mentally ill being forced to lobotomy, they’ve protected against the tyranny of
the majority. We are supposed to be autonomous individuals in a free country, watch
carefully, because that concept is being challenged with vigour. The cause of
freedom is in jeopardy; its enemies - apathy, political expediency, and a
decline of the population who fought to earn it for us.
