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Joanna Baron: I thought the Charter would protect our rights during the pandemic. I was wrong

Commentary

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),The 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.

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.Quarantine 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.‘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.”Robert 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.

Brendan Steven: The Catholic doctrine of discovery is already null and void

Commentary

At last, the Pope has apologized on Canadian soil for the Catholic role in this country’s shameful history of residential schools.

Will the apology be accepted? A friend reminded me that forgiveness is an act of the will. Every residential school survivor and family member will choose for themselves what this apology means to them. An APTN correspondent described the reaction of one woman: “The moment [the Pope] apologized, she felt all her sadness and anger leave her body.” If for that alone, this visit is worth it.

It is not my place to say whether the apology should be accepted. But for some of those rejecting it, one reason why casts a long shadow: the Doctrine of Discovery. The issue inflames passions. Just last week, at a papal Mass in Quebec, activists unfurled a banner that read “RESCIND THE DOCTRINE”.

To them, I am happy to report that the Church has done exactly that. There is no Catholic Doctrine of Discovery. The claim that one is part of contemporary Catholic teaching is simply untrue.

So, what is the Doctrine of Discovery? Things get a little confusing here. The term “Doctrine of Discovery” was first articulated by the U.S. Supreme Court in 1832. It describes a principle whereby sovereignty over “new” lands was claimed by Europeans who first “found” them, whether or not Indigenous peoples already lived there. Today’s use of the term is broader. It is a catch-all that takes in a separate concept, terra nullius—the false notion that Europeans discovered empty land for the taking.

When you hear the Doctrine of Discovery and the Catholic Church referenced together, what is most often being described is a series of papal bulls promulgated during the Age of Discovery. What is a papal bull? First, it is not a doctrine in the theological sense. There is a misconception that, for Catholics, everything the Pope says is infallible, issued forth as if from the mouth of God himself. Only in some very specific cases is what the Pope declares considered an infallible teaching. Papal bulls are not one of those cases.

Bulls are political declarations made by the Pope. They are retractable. They come from a time when the Vatican had hard political power. There is not space here to give the fullest explanation for each of these papal bulls and their content. For that, I refer you to the Canadian Conference of Catholic Bishops’ own condemnation of the Doctrine of Discovery and terra nullius. Suffice to say, together, these papal bulls provided something like permission for certain Catholic European powers to exert sovereignty over new territories.

Of course, those countries did what they pleased, with or without the Vatican’s permission. For instance, these infamous papal bulls include Inter Caetera of 1493. It gave Spain approval to rule over a large part of the Americas. This bull aimed to settle territorial disputes between Spain and Portugal. It failed in that purpose. Spain broke terms soon after, expanding past the boundaries the bull had set. Spain then went further, using the bull as justification for robbing local Indigenous peoples of land and sovereignty. No wonder the Truth and Reconciliation Commission’s Calls to Action reference the Doctrine of Discovery and terra nullius at multiple points, including a call for religious denominations to repudiate it.

That is what the Catholic Church has done. It did not take long to do it. Inter Coetera began abrogating a year after it went into effect, all because Spain violated it. Keep in mind, as the Vatican itself has stated, subsequent papal bulls abolish previous ones. In 1537, Pope Paul III issued a new bull, Sublimus Deus, declaring that “Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property… and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect.” The Canadian bishops list several papal decrees that follow the path set by Sublimus Deus:

  • Pope Urban VIII in the bull Commissum Nobis, condemning Portuguese abuse of Indigenous people under their rule;
  • Pope Benedict XIV in the bull Immensa Pastorum, condemning the enslavement and abuse of Indigenous peoples and excommunicating any Catholic involved in the slave trade;
  • Pope Gregory XVI’s apostolic letter In Supremo, condemning slavery in Africa and the Indies; and,
  • Pope Leo XIII’s encyclical In Plurimis, calling for the abolition of slavery in Brazil and worldwide.

Turning to the modern era, the Vatican repudiated the bulls before the U.N. in 2010, saying that Inter Coetera has already been abrogated” and is “without any legal or doctrinal value. They go on to say, “the fact that juridical systems may employ the ‘Doctrine of Discovery’ as a juridical precedent is therefore now a characteristic of the laws of those states and is independent of the fact that for the Church the document has had no value whatsoever for centuries.”

More recently, in a 2016 statement condemning the principles which undergirded the Doctrine of Discovery and terra nullius, the Canadian bishops alongside other leading Catholic Canadian organizations declared that “we firmly assert that there is no basis in the Church’s Scriptures, tradition, or theology, for the European seizure of land already inhabited by Indigenous Peoples” and “we reject the assertion that the principle of the first taker or discoverer, often described today by the terms Doctrine of Discovery and terra nullius, could be applied to lands already inhabited by Indigenous Peoples.”

And, of course, we have the words of Pope Francis himself, spoken earlier this week: “I am deeply sorry. Sorry for the ways in which, regrettably, many Christians supported the colonizing mentality of the powers that oppressed the indigenous peoples. I am sorry. I ask forgiveness, in particular, for the ways in which many members of the Church and of religious communities cooperated, not least through their indifference, in projects of cultural destruction and forced assimilation promoted by the governments of that time, which culminated in the system of residential schools.” Organizers of the papal visit point to this last statement as a repudiation of the Doctrine of Discovery.

Beyond denouncing the Doctrine, the Canadian bishops have strongly supported the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and that UNDRIP “resonates strongly with statements already made by the Catholic Church.” These include Indigenous self-determination, self-government, right to traditional territories, right to their own educational institutions, and more. The principles contained in UNDRIP are the antithesis of the Doctrine of Discovery. In his pilgrimage to Canada, the Pope explicitly says Canadian Catholic communities are committed to promoting Indigenous peoples and cultures “in the spirit of UNDRIP.”

Still, as Archbishop Don Bolen of Regina said this week, “those papal bulls are not operative, [yet] on the other hand, we resonate with the Indigenous desire to name those papal bulls, to say we completely distance ourselves from them.” The archbishop shared that a Vatican document is being produced that will provide even more clarity on the issue.

Clarity is only ever a good thing. But despite the confusion, we cannot forget the reality: when it comes to Catholic teaching, the Doctrine of Discovery is null and void.