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.

Some words and phrases I wish I was not so familiar with: mandates, lockdown, viral load, incubation period, flatten the curve, in these uncertain times, supply-chain woes, spike protein, mRNA, Zoom, work from home, social distancing, experts say, and, of course, the novel coronavirus. 

I did not consent to learning this lexicon, and I resent having had to. (Capital-H-History is Events and People and Forces, and it is also a word cloud, dark and heavy and hanging up above and raining down an unfamiliar vocabulary onto our drenched, unfortunate heads.)

We have learned a lot lately. Two-plus years into the pandemic era and our patience is strained with the effort. Our social and civil bonds are stretched. We are angry.^{1Canadians are angry. So what can we do about it? https://thehub.ca/2021-04-12/canadians-are-angry-so-what-can-we-do-about-it/}

All the furor of these last years: at those who imposed mandates, at those who broke the mandates; at those who forced us to don masks, at those who refused to wear them; at those who closed down schools and churches and businesses and events, at those who still gathered to teach and pray and work and protest; at those who moved too fast and those who did not move fast enough. 

We were presented with a problem and we are hostile towards those who did not react to it in our preferred manner. 

But in my own angriest moments—perhaps during the first lockdown Christmas I spent apart from family, or perhaps during the feverish few weeks when COVID finally caught up to me too—I imagined the fallout for those responsible for the problem in the first place: the Chinese government and leadership that allowed the virus to spread. 

And maybe not just spread. There are compelling reasons to believe that the virus was created at^{2“This Shouldn’t Happen”: Inside the Virus-Hunting Nonprofit at the Center of the Lab-Leak Controversy https://www.vanityfair.com/news/2022/03/the-virus-hunting-nonprofit-at-the-center-of-the-lab-leak-controversy} and leaked from^{3What happened to the lab-leak hypothesis? https://unherd.com/2022/06/what-happened-to-the-lab-leak-hypothesis/} the Wuhan Institute of Virology (there are four more words to add to my list).

But still, even if not, this—the disease, the death,^{4The global coronavirus death toll currently stands at nearly 6.5 million recorded deaths. https://covid19.who.int/} the lingering ill-effects, the economic loss, the global instability—all this could have been prevented or at least severely blunted if the Chinese Communist Party leadership had acted in good faith to warn the world of the newly developing situation and transparently shared what it knew in a spirit of urgent collaboration. If they had we may well have avoided this tragedy, Li Wenliang would not be a hero, and many untold millions would be alive and better off for it. 

Instead, they covered up the leak in the crucial early days and weeks and allowed the virus to spread the globe.^{5Early missteps and state secrecy in China probably allowed the coronavirus to spread farther and faster https://www.washingtonpost.com/world/2020/02/01/early-missteps-state-secrecy-china-likely-allowed-coronavirus-spread-farther-faster/} And so here we are. 

I believed that when the dust began to settle and the facts became clear the Chinese government would be facing the reckoning of all reckonings for its actions and inactions that caused and worsened this pandemic.

And yet, I was wrong. Sure, there have been some investigations. There have been some denouncements. There have been some consequences. Not enough. 

There is a momentum and an urge to move on, to sublimate, to forget, to look forward, to finally meet and make our long-delayed future. Today, China is not nearly the pariah that Russia is, for instance.

But we should not be so quick to move past accountability for those ultimately responsible. In some senses, the harm is too vast to really reckon with, the scope of the damage is too large. Tragedy and statistics, and all that. 

But we should try. For posterity, for closure, for the sake of justice, however partially accomplished. 

And, crucially, for the sake of our future too. Disaster, as we now well know, is not an impossible thing. Understanding and accounting for how COVID-19 came to wreck the world will help us to prevent such a thing from ever happening again. 

That, at least, is worth a reckoning. 

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.

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.