Living with Covid (Part III): More on Restrictions

In my last post, I tried to argue that it was important both to protect vulnerable populations from Covid and they should not be asked to absorb the cost of "returning to normal."  I want to make this point clearly. If we are going to accept that Covid is endemic, it mean (to me at least) something other than making that statement and ignoring the effects of it as if they did not matter. It means making reasonable provisions for the safety of citizens and ensuring that the cost of our return to normalcy is not paid unduly by one part of society. 

Another thing it means is that there is a need to think about what restrictions mean and what restrictions will need to be in place. This matter, I think, cuts to the heart of the question of normalcy for a significant number of people. While I strongly suspect that the word "normal" has a range of meanings (as I intimated in my last post), one meaning it has for some Canadians is that they can live their lives without the restrictions that were imposed on them as a result of the pandemic. We heard a lot about this in the early pandemic days. People complained about not being able to get to their cottages or see family and friends or play sports, among a range of other things. Different people clearly have specific issues that are closer to their hearts than others. I have friends, for instance, (and this is in no way belittling or disagreeing with them) for whom attending sporting events is paramount. I know others for whom religious services top the list. 

If we are serious about living with Covid, however, we are going to have to think about the character of liberty in our society. The list of actions I noted in my original post on this subject contains a number of actions that amount to restrictions. For instance, masking is a restriction. The requirement says that you must be dressed in a certain way to enter certain premises and this is different (a change) from the way things were in 2019  (in New Brunswick at least).  How can we justify restrictions if our objective is to "return to normal"? Or, put differently, are these restrictions justifiable in a free and democratic society? 

We should begin by acknowledging that this is an issue where "the devil is in the details." It is also dependent on context. To get around these proviso, let me take an example that is as specific as I can. Is the requirement to wear a mask a mask, for instance, an unreasonable requirement that undermines an individual's right? How this question is answered depends a great deal on the specifics. For instance, if a person cannot wear a mask because of, say, a medical condition, then that requirement becomes unreasonable because it threatens someone's life. But, what if it does not?  Let's continue with this example to illustrate the the point about restrictions and rights. 

A number of people who oppose masks have asserted their right as an individual to make up their own mind about their own face coverings. The idea here seems to be that an individual has the right to decide matters related to their self. It is difficult to disagree with that ... except, we already have a bunch of rules that limit people's control of their own actions and we have introduced these rules often for public safety. For example, people who have certain dread diseases do not have a right to enter Canada. The government might still choose to let them in, but entry in that circumstances is not a right.  My behaviour is regulated every day and in a range of different contexts. What is more, these requirements come from a range of different sources: different levels of government, private businesses, minor sports associations, schools, places of worship, etc.  For instance, the government requires me not to drive in excess of a certain speed. If I do (and allowing I am caught), I can be fined. Businesses require me not to loiter, my church requires me to behave in specific ways. The minor sports association for which I coached required me to be certified, etc., etc. I'll bet you could add in some other ones related to your work or recreational activities. 

The upshot of this is that regulation -- restrictions, limitations -- sound really horrible (an affront to freedom!), but they are actually part of our lives. They don't do anything to harm our lives and they do a lot of make improve it. One of my objectives as a coach was to try to introduce kids to games I really liked in ways that allowed them to keep playing the game long after they were on my team. Many of the rules of my minor sports association were intended to do precisely that as well. They restricted behaviour (fans were not supposed to curse at players, for instance) but that restriction was intended to build attachment to the sport (our common aim). While restrictions sound bad, most of us just go about our days, do our jobs, drive at the right speed, lower our speed in school zones, pay for our food at restaurants, etc. Said differently, there is nothing in itself horrible in these restrictions. Not only do we have them, most other societies do and most people in ours support them. 

Does it actually harm me not to be able to break these restrictions. Again, context is important. I might, for instance, need to exceed the speed limit in order to get to my doctor for a life saving procedure. In that context, obeying the restriction would threaten my life. But, in other instances, does it? While there may be six year olds who are upset that they can't drive cars, I suspect most of us are quite happy about it because it keeps us (and, the six year old) safe. I am happy that my neighbour can't legally break into my house and take my TV. That is a restriction on her behaviour (a limit on her freedom) but it is one that is reasonable and acceptable. 

What is more, we voluntarily enter into many of these restrictions. When I volunteered to coach, there were rules I had to accept. My employer requires a certain standard of behaviour from me (I have to be honest, for instance, and do my job). Said differently, far from being an imposition, most of us not only accept certain restrictions but voluntarily enter into more of them. And, there is the rub, what happens when someone does not want to obey restrictions and claims that they don't accept them. We'll need to come back to this because it is a complicated question. For now, you can see my point. We have a range of restrictions in our lives and, unless someone happened to mention it to you, you would not have known about most of them. As a society, we tend not to see these restrictions as a problem, we tend to see them as important for our and others protection, to ensure that businesses and schools can function, and to promote common objectives. 

With that in mind, and allowing no medical problems, let's go back to the original question: does wearing a mask pose an undue restriction? I'd argue not. It does not restrict one's freedom of movement. I can go to the next town over to shop just as I could before. It does not limit my freedom of association (I can still hang out with my friends). It does not limit my freedom of worship (I can attend my church or another one, if I so choose). I do not forego due process because I wear a mask, I don't lose my job, I don't have to give up my blog. Said differently, virtually nothing has changed. I can still go where I want, see who I want, watch the TV show I want, read the book I want, write what I want. The only thing that has changed is that when I do go out in public, I need to wear a mask. 

With *that* in mind, we can ask again: is that a valid restriction? No freedom nor democracy is sacrificed. There might be problems with election in Canada, but those pre-dated masks and they will post-date them, too. No other key rights are lost. The only thing that has gone on is that I have to take a small step (at very little cost, although I think the cost should be zero) and perhaps suffer a bit of inconvenience. Is that inconvenience worth it? If it saves someone's life ... sure it is. More than sure. In fact, consider the message we would be saying if we said "no." What we would be saying is that someone's life is not worth my inconvenience. This is not a threat to a fundamental right or my life or my security of person or my job. What I am saying I am unwilling to accept a minor inconvenience to help protect someone else's life.  If I made that statement, what would it say about me? What message would I be sending to my kids? 

We often like the message as long as it pertains to us, but what if the situation were flipped? What if your life could be endangered because I did not like a minor inconvenience? Or, you partners? Or, your children's? If you establish the principle that someone's life is not worth a minor inconvenience, you have established the principle that *your* life is not worth a minor inconvenience. I think my life is worth more than that. 

Sometimes, I think about these issues in personal terms. With all this argument laid out, would I want to be friends with someone who persisted with an anti-mask perspective. I don't know about you, but I am not at all certain that that is a person I'd want to associate with. If I could not trust them to take simple care for someone else with a minor issue of inconvenience, how could I trust them with something important? 

The Case Against Masks: Or, Legal Challenges Against Covid Restrictions

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.