A number of different groups are launching Charter challenges to Covid-19 restrictions. The challenges are a sign of the politics of our times. According to CBC, a group of current and retired police officers in Ontario are suing for the elimination of mask requirements, curfews, and restrictions on public gatherings on the following grounds (qtd: CBC):
- Canada's pandemic laws "are not rational" and have "no force or effect."
- Lockdowns, stay-at-home orders and curfews are "forms of martial law."
- Wearing masks, social distancing and lockdowns are "ineffective" and "not scientifically or medically based" because they're based on coronavirus cases the legal documents claim "are 96.5 per cent false."
In another instance, seven churches in Manitoba are arguing that public health restrictions circumvent their freedom of conscience and assembly. Again, according to CBC:
Seven rural Manitoba churches hope to convince a judge that the province's lockdown measures are unjustified violations of Charter-protected freedoms of conscience, religion, expression and peaceful assembly — and that the chief medical officer of health failed to consider the "collateral social and health costs" of locking down society.
Do these suits have any merit? No and the courts will not find for them. Why? Because these cases are being launched on grounds that fundamentally misunderstand the application of the law and the nature of judicial review in Canada. Let's look at several key points.
First, in each case the challenges seek to make their case on the basis of philosophy. For instance, they argue that we should take social and health costs into effect when enacting public policy and, because of this, eliminate public health measures. The problem with this contention is that it is actually a bad argument because the second point (the elimination of public health measures) does not follow from the first point (which, loosely paraphrased, is that people's mental health is important). In fact, it may contract it. Said differently, there is a disjuncture between the contention and the legal remedy it seeks to address it.
How so? Well ... it is rightly difficult to argue that mental health and the social considerations in which it is based should not be considered in public policy. I think they should be. It is one of the reasons I support public education, increased funding for higher education, and a single-user pay health care system. The problem this argument runs into is that it ignores the social and medical context in which public health measures were enacted. While you may not think this is the case, context is vitally important to the operation of the law. For example, if I aim a gun at someone and shoot them, I have committed murder. If a gun accidentally goes off, I may have committed some other crime but I have not committed murder. If I walk across your lawn for the fun of it, I trespass. If I walk across your law to save a life, I have engaged in a necessary action. Said differently, to argue about mental health and social costs without consideration of the context in which laws have been enacted, the intent of those laws, and their efficacy, is to make an argument in opposition of the operation of Canadian law. It is to appeal to the courts to rule against a foundational element -- the context in which an action takes place is important -- of the law and I find it difficult to believe that they will do that.
Second, this is important because the issue is not that there have been been social costs to the pandemic. To the best of my knowledge, no one debates that there have been costs. The problem for these challenges is this: that is not the issue. The issue is that the government of Manitoba was not dealing with a point of abstract principle. In fact, I'd bet if you were to ask the government of Manitoba if it preferred a different course of action, you'd get a resounding "yes" in response. I'd guess they would say that they have taken public health actions reluctantly and only after considering their full implications as a matter intended to protect the lives of Manitobans. Pandemics, by definition, have social, mental, and physical health costs. These costs are independent of government policies and the problem with the challenge is that mis-ascribes the root of the mental and social costs it seeks to address. In other words, it suggests that policies protecting the health of Manitobans are at fault and not Covid-19. The government of Manitoba made the decisions to accomplish specific aims: it was dealing with people's lives and making a sincere effort to protect those lives. They determined, as did btw every other responsible government in the world, that some measure of temporary restrictions were necessary to do the best to protect lives, particularly of those who were most vulnerable. The legal issue is not "do restrictions create issues for people's mental wellbeing?" The issue is: "was this course of action justified in the circumstances as a temporary measure designed to protect lives?" I may, personally, continue to not like those restrictions but that does not make the unconstitutional.
I want to draw specific attention to the temporary character of public health restrictions. In most provinces, restrictions are implemented for a fixed period of time and must be renewed. If they are not renewed, the cease to have force and effect. I initially found this continual renewing of restrictions annoying (yes, we know the border is closed and we know it is going to be closed for a certain length of time ... why do you keep renewing this agreement?) until I realized that this was the point: this measures are not permanent restrictions that will have permanent force and effect. They are temporary measures designed to deal with an emergency situation in which that, by definition, requires unusual actions. And, as a result, they need to be continually re-assessed in order to ensure that they are temporary.
If we think of public health measures in this way, the argument being made by the Manitoba churches seems rather odd on a philosophical level as well. What we are talking about is not a defence of freedom of conscience (religion) but an argument that says my religion is so important to me that I am unwilling to accept temporary limitations that could save others lives. I don't believe this is the statement these churches intend to make. Indeed, I think they believe that their actions will have no social or health effect (which is also odd for an argument that is premised on recognizing the importance of social issues). What I am saying is that when the courts assess this issue, this is a consideration that will weigh on their assessment: to what extent can the government take limited and temporary actions that are designed to prevent potentially broad case deaths in society? Is it ethical, I think the courts will ask themselves, for us to open the door to actions that endanger lives and in a way that will necessarily fall unevenly across the population. The most vulnerable members of society will, as we have seen, pay the highest price for a lack of public health measures. Removing public health measures, in this way, creates an uneven danger to others. I find this difficult to believe the courts will accept.
The final important matter to consider is the empirical basis upon which these challenges rest. The fact that every respectable medical professional and scholarly assessment of the pandemic supports public health measures is important. The courts decide matters on the basis of law and particularly as it pertains to the constitution, there is an element of philosophy embedded in the decision making process. The constitution, after all, is not simply a division of powers or a set of higher laws but a statement of ideals and aspirations. This said, courts also connect decisions to evidence. Evidence is, in fact, particularly important to the operation of the law in Canada. Said differently, I cannot simply make an argument to the court and say "in my view this is the right argument. It accords with my ethics, so you should find it legal, or illegal, as the case may be." Arguments must be based on evidence (and, in some cases, reasonable probability, which is way of projecting evidence into the future).
This may be why the Ontario police officers and retired officers use an elevated rhetoric to try to make their point, alleging that public health measures are ineffective and amount to martial law. Both contentions, however, are not matters of opinion but empirical points subject to analysis and research. If you believe public health measures are ineffective, I actually think that there is little that I can say to change your mind. But, the issue is not your mind, nor for that matter mine. The issue is what can be empirically demonstrated in a court of law where personal opinions are not what is taken into account. Here, the issue will not be one of finding a single "authority" who disputes public measures, but finding a qualified individual who can interpret a mountain of evidence that all points one way. As anyone who watches TV can tell you, most medical officials believe that public health measures in Canada did not go far enough or fast enough. To the best of my knowledge, there is no credible recognized authority or scholarly study that contends anything different.
I might make a similar point about freedom of conscience. To what degree have religious freedoms been limited by public health measures? My church went "online" early on and my church's local governing body has urged us to not simply follow restrictions but to be one step behind the government. They believe that this fulfills the Christian requirement to love your neighbour and that this is more important than an individual's ability to go to a building. In fact, if you think the building you go to is your church ... you and I have very different understandings of the word "church." We found that our "attendance" increased with the move to online services. Far from limiting our ability to communicate, the response to the pandemic naturalized the use of technologies that we were otherwise slow in adopting and drew in a different audience. My point is not that this is for everyone, my point is that if you look at freedom of conscience as an empirical question, it is difficult to content that public health restrictions limited it.
Likewise, if you believe that being asked to wear a mask is the same as martial law ... I'd recommend you ask someone who has lived in a country that has been under martial law. Habeas corpus, I will note, has not been suspended, military courts have not been created, and legislative assemblies have not been suspended. As I write this, in fact, I have just returned from voting in a municipal election. The hallmarks of martial law are simply not evident. In place of them, what we have is a confusion. Some people seem to feel temporary health measures which they dislike are the same as the subversion of democracy. And, they just aren't.
A final note: my point is not that all has gone well in the Canadian response to Covid-19. It hasn't and this is well documented as well. A court challenge, however, is not about things that have not gone well. It is not about trial and error in public policy in response to a rapidly changing situation. Instead, it is about whether or not specific laws are unconstitutional and unconstitutionality is something other than disliking a law. What these challenges do is try to make that equation. Whether intentional or not they are built on confusion, a failure to understand basic features of the law, and empirical errors. For a constitutional challenge, this is not a good mix.