Canada needs a challenge to coronavirus lockdowns to defend Charter freedoms

Parliamentary supremacy has mostly yielded to judicial supremacy in the democratic world, and therefore this question can only be answered decisively by the courts, based on the laws of each country. But first governments actions must be challenged in court. In the UK and the Republic of Ireland two such challenges are currently underway. The basis for these challenges lies with the European Convention on Human Rights (ECHR), which the rule of law in both the UK and the Republic of Ireland accords with firmly.

British entrepreneur Simon Dolan has launched the challenge in the UK, arguing that the UK government’s regulations—Health Protection Regulations, 2020—that introduced the lockdown are outside the scope of the 1984 Public Health Act from which the government derived the authority to issue them. He claims that the regulations are disproportionate to the danger to public safety posed by the coronavirus, and therefore entail unjustified breaches of the ECHR, including the rights to liberty, family relationships, practice of religion, free assembly, and education.

Dolan's letter to the government adds that the regulations discriminate against those who suffer from mental illness, because of imposed isolation. He is currently reviewing a response from the government’s lawyers. Dolan’s challenge comes after a compelling case was laid out by barrister Francis Hoar ten days earlier, who argued that the lockdown would not survive judicial review.

In Ireland the constitutional challenge is being made by writers Gemma O’Doherty and John Waters, who have the additional support of a written constitution—which Britain lacks—to strengthen their case. Waters acknowledges that the Constitution of Ireland permits certain freedoms to be restricted in an emergency, adding that, "Public safety is one area in which such interventions may from time to time be called for, but these must meet exacting standards of necessity and proportionality.

Many of the rights in the Constitution of Ireland are 'inalienable' and 'imprescriptible,' meaning that they cannot be given up and cannot be taken away." The High Court has refused the initial application for judicial review, which wasn’t a surprise to Waters. He and O’Doherty are planning to appeal.

The ECHR came into force as an international treaty in 1953, the paramount accomplishment of the Council of Europe. Both the United Kingdom and the Republic of Ireland were original signatories but the ECHR did not become law in the UK until 1998, with the passage of the Human Rights Act, and not in Ireland until the ECHR Act of 2003. The Convention was and is entirely separate from the European Union and its predecessor the European Economic Community, and as such is not directly affected by Brexit reforms.

Through self-inflicted statutory law, both the UK and Ireland went from treating the ECHR as a sort of loose guide to follow where convenient, to regarding it as a fundamental constitutional document with which all other existing and future law must comply. It was these acts of domestic legislation, rather than its original ratification, that provided the ECHR with the legitimacy and unprecedented legal weight that it now possesses in both countries.

In the UK, there is significant opposition to the Human Rights Act on the grounds that it amounts to a renunciation of national sovereignty to insist that domestic law comply with supranational agreement. All domestic legislation has a democratic legitimacy that international treaties lack, unless and until they are incorporated into domestic law, at which point, paradoxically, a foreign element has been legitimately introduced into the legal system, essentially serving to override domestic law.

In this new scenario British law must adhere to the decisions of a foreign court, that of the European Court of Human Rights in Strasbourg, potentially resulting in an alteration of domestic law forced from the outside, a radical departure from the longstanding English legal system. This would appear on the face of it to usurp parliamentary sovereignty, but the Human Rights Act can be repealed at any time by parliament, and thus its power is wholly contingent upon continued parliamentary deference. These constitutional challenges may or may not succeed in the end, but it is important that they be made.

Everything most people know about the coronavirus is based on the authority of others. But what if that authority is misplaced? What if those others are exaggerating their case? What if they’re mistaken? What if they’re not entirely honest? What if they’re using this as a pretext for some ulterior motive? These are all possibilities even if they aren’t all probabilities.

Legal mechanisms exist to prevent abuse and ensure accountability. The ECHR and the Irish Constitution provide clear codified law against which to measure any and all government legislation. Without challenges such as these, that measure will not be taken, and the legal documents become all too easy for governments to ignore. At this point, it becomes difficult to see what purpose such documents serve.

So where is the constitutional challenge in Canada? The Canadian lockdowns are provincially imposed, and while the provincial legislatures don’t have to comply with the ECHR or any other international treaty, they do have to comply with the Canadian Charter of Rights and Freedoms.

In 1982, the elder Trudeau government patriated the constitution, which involved incorporating into domestic law all unrepealed British parliamentary statutes relating to Canada (Canada Act), the last of which (Constitution Act) contained the Charter. The question remains whether this was a necessary or entirely beneficial move, but rightly or wrongly, the Charter is now the law. The provincial lockdowns certainly violate Charter rights including freedom of assembly; life, liberty and security; religion; interprovincial mobility.

The authority upon which the provinces rely are provincial statutes that, according to the Canadian Civil Liberties Association, have never been legally challenged, such as Ontario’s Emergency Management and Civil Protection Act of 2006, which grants extraordinary powers to the Premier and Cabinet during a declared emergency. Thus two types of law—Charter and statute—are at odds. How can it be justified that a provincial executive decision takes priority over the Charter? (Section 33 of the Charter—the notwithstanding clause–does provide for this, but it has not been invoked by any provincial government during the lockdown as of yet, and does not apply to mobility rights.)

Why do nations create such constitutional documents as the Charter, except to defend individual rights against governmental overreach? Lockdown is just that—unprecedented governmental overreach that restricts those protected rights. The real question is one of justification, proportionality and the accuracy of assessment of the threat. And again, at present, that question can only be answered effectively in the courts, which, rather inconveniently, are mostly closed.

It is never a good thing for a government to act unopposed; opposition always strengthens legislation, corrects error and oversight, and prevents abuse and excess. If the official opposition and the media don’t want to question the government’s actions, concerned citizens ought to. Unfortunately, in Canada, there’s been very little opposition to the lockdowns from anyone, other than anti-lockdown protesters in Queen's Park and think pieces in publications such as this one.

I have deliberately omitted the United States from this comparison, because Canadians have a tendency to think in terms of American Constitutional law without realising it, and thereby often misconstrue their own constitutional situation, which is derived from the British.

But all four of these great countries — Canada, Ireland, UK and US — are based on the same English common law tradition which places supreme value on individual liberty. Each gave the lives of countless young men in war to preserve that liberty. Each has felt the need to add some form of charter, convention or constitution that attempts to enshrine the fundamental constituent parts of that liberty.