John Carpay:
“The Canadian 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.” Thus reads Section 1 of the document added to Canada’s constitution in 1982.
In R. v. Oakes (1986) the Supreme Court ruled that when the government violates a Charter right or freedom by way of a law (or regulation, policy, or health order) the government must justify “demonstrably” with cogent and persuasive evidence that its law is reasonable, rational, truly necessary, and bringing about more good than harm. When judges determine that a government failed to meet this burden, judges can strike down laws, regulations and government policies as unjustified violations of our freedoms of conscience, religion, expression, association, peaceful assembly, mobility, bodily autonomy, equality rights and so on.
In Ontario v. Trinity Bible Chapel (2022), the judge repudiated the Oakes test and lowered the bar for government, upholding violations of Charter freedoms without engaging in serious scientific analysis of the relevant issues: “My role is not that of an armchair epidemiologist. I am neither equipped nor inclined to resolve scientific debates and controversy surrounding COVID-19.” The judge further declared that “it is not my task to mediate or resolve conflicting views about COVID-19.” Wrong! Resolving conflicting views is the very heart of a judge’s job description, and that includes conflicting views about science. Instead of requiring the government to justify its health orders “demonstrably” with persuasive evidence, the judge asked, “Was it open to Ontario to act as it did?”
Some judges have made assertions that appear to be based only on what the CBC and other government-funded media have stated repeatedly. For example, in Gateway Bible Baptist Church v. Manitoba (2021), the judge described COVID as an “unprecedented” public health threat and “the worst global pandemic in over a century.” The judge did not reference any evidence to support his inaccurate claim that COVID was more deadly than the the 1957-58 Asian Flu or the 1968-69 Hong Kong Flu, each of which claimed between one and four million lives, according to the World Health Organization.
In O.M.S. v. E.J.S., Harper-appointed judge Michael Megaw ordered a 12-year-old girl to get injected with the COVID vaccine, against her will and against the will of her mother. In September 2021, he declared that COVID posed a “serious and significant” health risk to children, and that he needed no specific proof to support his conclusion. If Michael Megaw had bothered to look at death statistics from Canada or other countries, he would have understood that children were as likely to die of COVID as they were to die of lightning strikes. Michael Megaw went on to take “judicial notice” of the “fact” that the COVID vaccine was “safe and effective” for use in both adults and children, because Health Canada and the Saskatchewan Health Authority had said so. This judge asserted that no reasonable person would dispute the accuracy of a claim made by a government health authority! What about thalidomide, a drug deemed safe and effective by health authorities in the 1950s that killed and damaged so many babies across the globe?
Essentially, this judge said: “The media and politicians have been saying every day for the past 18 months that Covid seriously threatens adults and children. This claim must be true, because I have heard it repeated hundreds of times on the news, along with frightening pictures of sick, dying and dead people. Repeated media assertions combined with disturbing visual images are a good substitute for evidence in court.”
In Hillier v. Ontario (2023), the Ontario Superior Court of Justice upheld the government’s total ban on all outdoor protests as a justified violation of the Charter freedom of citizens to assemble peacefully. Contrary to what the Oakes ruling requires, the judge gave no serious consideration to the very real harms that lockdowns inflicted on millions of people. The judge completely ignored a lengthy and comprehensive report by medical anthropologist Dr. Kevin Bardosh that exposed the magnitude of lockdown harms in Canada.
With court rulings that are more media-based than evidence-based, and with governments now relieved of their obligations under the Oakes test to justify their health orders in court as reasonable limits on Charter freedoms, it seems that Section 1 has rendered the Charter largely irrelevant. Governments are free to violate whatever rights and freedoms they wish, simply by declaring a public health emergency.
John Carpay is president of the Justice Centre for Constitutional Freedoms (jccf.ca).
