Restrictions, rights, and the rule of law

We are fast approaching two years since the world was turned upside-down by the COVID-19 pandemic. It seemed to happen in the blink of an eye. I remember being in Edmonton, Alberta, to speak at a construction law conference in early March 2020. By this time, there had been increasing talk of a novel coronavirus that had emerged in China, and had made its way to North America, with a few stops on the way. Notices in public restrooms about proper handwashing had started to appear, and hand sanitizer was conspicuously available for use at the buffet-style luncheon during the conference. But most of us there were still completely unprepared for the magnitude of what was about to come.

The evening after the conference ended, I went to Rogers Place with a friend who was attending the conference with me to watch the Edmonton Oilers play the visiting Winnipeg Jets. Loyal Jets fans as we both are, the timing couldn’t have worked out better. It was a full house. Then it happened. During the first intermission, as we were in line for another refreshing beverage, I received a text from a friend in Florida saying that the NBA had just cancelled its season due to the virus. “What?” I thought. I couldn’t believe it. After the game, I jokingly said that at least I got to see the Jets beat the Oilers before the world ended. The next day, the NHL announced the cancellation of its season. The joke was on me.

Suddenly, COVID-19 took over our lives. Restaurants and certain businesses were ordered to close. “Social distancing” oxymoronically entered common parlance. There were lineups to enter your local Walmart (being essential, of course, that establishment remained open almost everywhere in Canada and the United States). Amid all of this, a rights-based conversation began to emerge (“conversation” in many cases is putting it politely). There was no question that governments were restricting the ordinary freedoms of their citizens in the name of public health. But to what extent was this justified? To what extent was it constitutional? And, how should people respond if they felt the government had overstepped?

Much ink has been spilled, many protests staged, and many jail-cell beds warmed attempting to answer these questions. The various restrictions and mandates imposed by governments ostensibly to stem the spread of the virus impinge on several individual freedoms considered fundamental in most liberal democracies. These include freedom of assembly, freedom of association, freedom of religious exercise, freedom of mobility, and even freedom of expression, depending on one’s viewpoint on certain virus-related subjects. These freedoms are pitted against the government’s legitimate interest in protecting the health of its citizens. There are strong opinions on both sides, often with some decrying any infringement at all of protected rights, and others demanding the government impose any and all measures necessary to reduce their risk of exposure to the virus to the absolute minimum. But such an absolute view of rights has never been the view that courts have taken in response to these issues.

Constitutional balancing act

Since the repatriation of Canada’s constitution via the Constitution Act, 1982, Canada has had robust protections of fundamental rights and freedoms written into federal law, being the Canadian Charter of Rights and Freedoms[1] or “the Charter”. However, the very first section of the Charter purports to guarantee certain rights and freedoms of Canadians while simultaneously limiting them. Section 1 of the Charter reads:

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.

Perfectly clear, I imagine the drafters thought.

Fairly quickly after the Charter’s enactment, a legal challenge arose requiring the courts to weigh in on the interpretation of Section 1. The case was R. v. Oakes[2]. The accused had been charged under the Narcotic Control Act[3] with unlawful possession of a narcotic for the purpose of trafficking (s. 4(2)). While something like an illegal search immediately springs to mind, that was not the rights violation that was alleged. At issue was the fact that the Narcotic Control Act contained a provision (s. 8) requiring the accused to prove that, if he was found to be unlawfully in possession of a narcotic, it was not for the purpose of trafficking. This violated the presumption of innocence guaranteed under Section 11(d) of the Charter.

The Supreme Court of Canada in the Oakes case created a test to determine whether a breach of a Charter right is nevertheless lawful:

1. The challenged law must have a pressing and substantial objective that is sufficiently important to override a constitutionally protected right.
2. The means chosen to achieve the objective must be proportional; in particular:

a. there must be a rational connection between the law and the objective,

b. the law must minimally impair the right in question, and

c. the beneficial effects of the law outweigh its negative effects.

This balancing exercise has defined Charter challenges ever since.

In Oakes, the court had little difficulty finding that the law had a sufficiently important objective: curtailing narcotics trafficking. But the court found that the reverse onus imposed by the law failed the rational connection test in that possession of any amount of narcotics did not rationally lead to an inference that the accused was involved in trafficking. The law was ruled unconstitutional.

In the United States, the Bill of Rights[4] does not have an explicit limitations clause. Unlike the Charter, the Bill of Rights is written as prohibiting the government from passing laws that infringe rights that are assumed to be pre-existing (as opposed to granted by the government). However, the U.S. Supreme Court has still held that the government can infringe fundamental rights in certain circumstances. The challenged law must pass what is known as “strict scrutiny” (there are exceptions to this). This requires that, (a) the law must have a compelling governmental interest, and (b) the law must be narrowly tailored to achieve that interest. Here again, a balance between public interest and individual rights must be found.

Public health concerns are persuasive

In Canada, there have been court challenges to COVID-19 restrictions. Two prominent cases are Springs of Living Water Centre Inc. v. Government of Manitoba[5], and Ingram v. Alberta (Chief Medical Officer)[6], both involving churches challenging restrictions on public gatherings. In both of these cases, the courts refused to issue injunctions and allowed the applicable public health orders to stand.

It is important to understand that in both of these cases, the courts were asked to issue interim or preliminary injunctions, that is, to suspend the enforcement of the challenged public health orders before a full review of the merits of the arguments. Under Canadian law, the major consideration for courts on such applications is not whether or not the case is likely to succeed (in contrast to the U.S. analysis), but whether there would be irreparable harm (not compensable by money) to the applicant if the injunction was not granted, and if so, whether that harm would be greater than the harm suffered by the other party if the injunction was granted. The refusal to grant an injunction does not necessarily mean that the Charter challenge will not ultimately succeed – the Oakes analysis is not even applied at this stage.

In the Springs case, the court found no irreparable harm (really, no harm at all) if the applicants were prevented from holding church services. In the Ingram case, the court found that the applicants would in fact suffer irreparable harm due to the public health restrictions, but that the potential harm from spreading COVID-19, which the restrictions were designed to prevent, outweighed this harm. In both cases, the court relied on the Supreme Court of Canada’s decision in Harper v. Canada (Attorney General)[7], in which the high court stated that on an injunction application, it is to be presumed that the challenged law produces a public good, and this weighs heavily in the analysis. Therefore, it is unlikely that any preliminary injunction application against COVID-19 restrictions would succeed in Canadian courts on Charter grounds.

Protests and the rule of law

So if courts will likely defer to government restrictions, at least on preliminary injunction applications, what is an affected group, whose rights are indeed being violated, to do? Sticking with the right of free exercise of religion, since these cases have tended to be prominent, there have been numerous instances within Canada and the U.S. of church groups simply ignoring COVID-19 restrictions. Among the most prominent is the case of Calgary, Alberta, Pastor Artur Pawlowski, who refused to stop holding full-capacity church services without masks despite applicable public health orders. Pawlowski ended up being arrested several times and has received significant coverage in U.S. media.

Although the vast majority of churches (and mosques, synagogues, and other religious institutions) managed to adapt to public health restrictions, Pawlowski simply ignored them and kept on holding his church services as normal. His church was visited by Alberta Health Services officials, backed up by peace officers and Calgary police. There is a video that received wide coverage in U.S. conservative media in which he is berating these officials, and calling them fascists, communists, Nazis, Gestapo, and psychopaths, and telling them to get out of his church. They left. In fact, they left, came back another day, left again, and then eventually got a court injunction to prevent him from continuing to violate public health orders, which he ignored. Only after that did they arrest him. This does not seem consistent with how the Gestapo operated.

There is arguably a place in a free society for civil disobedience. But the goal should not be to denigrate the rule of law that orders that free society. “Civil” is the key word. And by civil, I do not mean “polite”. I mean that one disobeys on principle but accepts that there will be consequences, and suffers them willingly. A tiny minority of Christian pastors such as Pawlowski claim that their religion demands disobedience of the current health restrictions, relying on St. Peter’s words: “We must obey God rather than men.”[8] One wonders why fire code capacity restrictions have escaped their scrutiny. But they seem to forget about St. Paul, who when thrown into prison for preaching about Christ, was singing hymns to God, and did not try to escape when an earthquake broke open the prison doors.[9] St. Paul himself said, “Let every person be subject to the governing authorities.”[10]

The point is, if one believes that one should disobey the law in furtherance of any cause considered just (or if one’s religion demands it), then one ought to readily accept the consequences imposed by the authorities. Indeed, the consequences send out the intended message that the law is unjust. That message then effects change through the democratic process. Screaming that the police are Nazis and then going on speaking tours about your horrible treatment seems to me to undermine the whole message. But maybe that’s just me.

There is always the ballot box

There are no easy answers in dealing with this pandemic. What is clear from the decisions of Canadian courts is that there must be a balance struck between individual rights and the government’s interest in the health of its citizens. Like it or not, these decisions have held that the balance currently favours the government’s interests. But the rule of law requires that we respect those decisions, or accept the consequences of resistance – at least until the next election.

[1] Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c.11

[2] [1986] 1 S.C.R. 103

[3] R.S.C. 1970, c. N-1

[4] U.S. Const. amend. I-X

[5] 2020 MBQB 185

[6] 2020 ABQB 806

[7] 2000 SCC 57

[8] Acts 5:29

[9] Acts 16:16-25

[10] Romans 13:1