Preston Manning: Lockdown rules are violating our rights. I’m calling on the justice minister to intervene

Author of the article:Preston Manning, Special to National PostPublishing date:Jan 26, 2021  •  20 hours ago  •  7 minute read

The following is an edited excerpt from a letter sent by Preston Manning, former leader of the Reform party and former leader of the official Opposition in Parliament, to Justice Minister and Attorney General David Lametti.

The primary purpose of this letter is to request action on the part of yourself and the House of Commons’ standing committee on justice and human rights to achieve a better and more equitable balance between: the protection of the health of Canadians through government measures adopted in response to the COVID-19 crisis and the protection of the rights and freedoms of Canadians as guaranteed by the Canadian Charter of Rights and Freedoms.

One of the unfortunate and presumably unintended consequences of the health protection measures has been the widespread and prolonged infringement of “fundamental rights” that are guaranteed by the charter:

Regrettably, it must also be emphasized that these violations have been occurring for more than 10 months and in large and ever-increasing numbers throughout the country. Moreover, in addition to these violations of “fundamental freedoms,” other important rights and freedoms guaranteed by the charter are also being infringed, including widespread violations of democratic rights, mobility rights, legal rights, equality rights and the right of every citizen and permanent resident to “pursue the gaining of a livelihood.”

The denial of the right to pursue the gaining of a livelihood, which includes the right to work and operate a business, is particularly devastating, as it affects the social, economic and financial well-being of millions of Canadians.

While health under our Constitution is primarily a provincial responsibility, given the federal role in responding to COVID-19 and in bringing the charter into being, surely it is the federal government that ought to take the lead in balancing our COVID response with the rights and freedoms that are enumerated in the charter.

I acknowledge that Section 1 of the charter does permit governments to impose limits on the rights and freedoms of Canadians, so long as those limits can be “demonstrably justified” as “reasonable” in a free and democratic society. But in order for these measures to be seen as legitimate, the government has an obligation to provide Parliament, and the public, with evidence that it has done its due diligence and taken into account all the scientific evidence, including the views of those who disagree with the government’s assumptions.

For example, if the governmental response includes continued lockdowns, a demonstrable and reasonable justification would require the government to present a clearly written plan. Such a plan should:

• show exactly why such extraordinary measures are required;
• identify the nature and magnitude of the anticipated impacts of such measures;
• propose concrete measures for mitigating the known collateral damage that such lockdowns produce; and
• specify when these supposedly “temporary” measures will end, and on what basis (to say that lockdown measures will be lifted when the number of “cases” is “low enough” is not a satisfactory criterion and only generates massive uncertainty among workers, employers and investors).

The charter provides for the protection of the rights and freedoms of Canadians by declaring that: “Anyone whose rights or freedoms, as guaranteed by this charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” The Constitution also empowers courts to declare that “any law that is inconsistent with the provisions of the Constitution is to the extent of the inconsistency, of no force or effect.”

However, I would suggest that these provisions are insufficient under the circumstances, given that the process of applying to the courts for relief is unfamiliar to, and beyond the means of, most Canadians. Since not all Canadians have the resources or the expertise to avail themselves of this right of appeal to the courts, inequality of access becomes a further limitation on the ability of Canadians to exercise this right.

Furthermore, if all the Canadians whose rights have been infringed over the last year were to apply to the courts for redress, it would overwhelm the court system. Even in the event of such a flood of applications, the courts are likely to view the health protection issue, particularly in an emergency, to be a policy matter to be dealt with by Parliament, not the judiciary.

As a lifelong democrat and a former parliamentarian, I completely agree that the balancing of conflicting rights is first and foremost the responsibility of the duly elected Parliament, with appeals to the courts being a measure of last resort. After all, Canada’s current Constitution was drafted and made law by elected representatives of the people, not appointed judges, so it is elected officials and those reporting to them (civil servants) who have the primary responsibility for protecting the rights and freedoms it guarantees and balancing that protection with other demands.

This leads me to a third request, namely that you and your parliamentary colleagues implement other measures that could be undertaken by Parliament, cabinet and the civil service to correct the current imbalance between the necessary protection of the health of Canadians and the equally necessary protection of their constitutionally guaranteed rights and freedoms.

These additional measures are required because what might have been confined to a health crisis has unfortunately been turned into a social crisis, an economic crisis, a pending financial crisis and a crisis for children, university and college students, and high-performance athletes — three cohorts of Canadians who are least vulnerable to the coronavirus and who ought to have been the least affected by efforts to limit its spread.

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Allow me to suggest five such measures:

1. Public recognition by the prime minister and the government that the COVID-19 crisis has become a multi-dimensional public emergency that requires the government to broaden its management beyond the health department and the advice of the medical community to include a broader range of scientific expertise and the meaningful involvement of other federal agencies with experience and expertise in managing public emergencies.
2. The convening of special sessions of Parliament, until the COVID crisis has passed, in which each member will be given an opportunity to give a short report on the health situation in his or her constituency, the positive and negative impacts of the health-protection measures adopted and suggestions for securing a more balanced and effective response.
3. Ordering the Department of Justice to conduct comprehensive assessments of the impacts of health-protection measures on the rights and freedoms of Canadians; to openly and transparently present the results of such assessments to Parliament; to put forward proposals for balancing health protections with the protection of rights and freedoms; and to adopt and implement those balancing measures that receive majority support in Parliament.
4. Action by the ministers of finance, economic development and natural resources to introduce legislation requiring economic impact assessments to be performed on every major health and environmental protection measure proposed or adopted by the federal government.
5. The employment of due diligence in the development and implementation of these and whatever further measures are required to effectively balance the protection of the health of Canadians with the protection of their rights and freedoms.

Let me make crystal clear that I fully recognize that the coronavirus is a serious threat to the health and well-being of Canadians that requires substantive governmental action. I myself, due to age and a family predisposition to lung-related illnesses, am personally in a very vulnerable group.

But in the interests of all Canadians, I respectfully ask for your active support in achieving an equitable balance between the protection of the health of Canadians and the protection of their fundamental rights and freedoms under the Constitution, and an equitable balance between the physical well-being of Canadians and their social, economic and financial well-being.

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