When the New York Times ran a feature encouraging its writers to admit things they got wrong, we were equally intrigued and annoyed. What a great idea — why didn’t we think of that?! That’s exactly the spirit we want to encourage at The Hub. We know we won’t be right about everything, but we want to admit it when we get something wrong and we want to figure out why we were off base. So, this week, we’ll be borrowing the Times’ idea and running essays from our writers and staff about the things we got wrong. Please, enjoy our blunders.
I entered the legal profession during what was a sort of zenith of the Charter of Rights and Freedoms. During the years of the so-called Bedford trilogy (from 2013-2016),1The Bedford Trilogy and the Shifting Foundations of Vertical Stare Decisis: Emancipation from Judicial Restraint?, 2020 CanLIIDocs 1958 https://www.canlii.org/en/commentary/doc/2020CanLIIDocs1958#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA s. 7 of the Charter—which protects the right to life, liberty, and security of the person—expanded to encompass rights to safe injection sites, medically assisted death, and brothels. The Court told us pointedly: if a single Canadian’s rights were harmed by an impugned law, that was sufficient to strike the law down as unconstitutional.
So as the contours of government response to the pandemic—vaccine passports, extended lockdowns, mandates, mandatory quarantines—came into focus in late 2020 and early 2021, I was cautiously bullish on the viability of the most serious claims under the Charter.
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Of course, some restrictions on rights for valid public health objectives were understandable. But the sorts of laws that vividly and severely impacted the core liberties, even dignity, of individuals could not simply be swept under the rug of s. 1 indefinitely and justified in light of the government’s self-professed exigent circumstances. In particular, cases where the government failed to provide compassionate exemptions for its most draconian measures should be accommodated or the law struck down under the Charter.
I was wrong. In summer 2021, the Canadian Constitution Foundation along with several individuals brought an application against the government in relation to its quarantine hotel measures which required all returning travellers to isolate in an approved hotel for three days at a cost of about $2,000.2Quarantine hotel court case should matter to all Canadians https://theccf.ca/quarantine-hotel-court-case-should-matter-to-all-canadians/ The applicants, all of modest means, each needed to travel outside of Canada either to care for parents suffering from terminal conditions or, in one case, care for an injured spouse.
The expense itself was crushing for these individuals. But also, the public health justification for the hotels was flimsy.3‘Absurd’: Travellers stuck in quarantine hotels say process is confusing and drawn out https://www.cp24.com/news/absurd-travellers-stuck-in-quarantine-hotels-say-process-is-confusing-and-drawn-out-1.5708788 In spring 2021, the federal government’s own expert advisory panel recommended discontinuing the hotel program, as it was unlikely to have any effect on the spread of the virus. Striking down the program seemed to clearly follow from the Charter’s guarantees if they were to have any teeth. Instead, in his decision the judge summarily dismissed the claim, deriding the matters raised as concerning “decidedly first world, economic problems.” He did not find any breach of any of the Charter rights asserted (including the right to mobility and the right to life, liberty, and security of the person).
This posture of extreme deference was the norm throughout the pandemic (even bans on a church holding drive-in services were upheld). It was predictable that governments, responding to public pressure, would overshoot the mark and act according to the precautionary principle in setting policies. Throughout the pandemic, nearly all health measures polled well. It fell to judges to hold up the principle that, as Robert Nozick says, “Individuals have rights, and there are things no person or group may make them do.”4Robert Nozick: Political Philosophy https://iep.utm.edu/noz-poli/#:~:text=With%20respect%20to%20political%20philosophy,a%20right%20to%20private%20property.
A constitution is meant to demarcate acceptable from unacceptable state conduct, not act as a sort of grab bag of contingent interests. If a right is little more than one norm or interest to be weighed against others, and the government’s reasoning for its actions is deferred to across the board, the Charter is nothing but a lame duck showpiece. I thought the Charter would be a sturdy bulwark against rights intrusions throughout the pandemic. I was wrong.