Freedom is the product of Democracy, and Democracy is fragile. It is easily broken, and too often taken for granted. Our freedom is precious and hard-won, the envy of countries without it.

In Canada, our freedoms are established in the Constitution Act 1982, Part I, Canadian Charter of Rights and Freedoms (Charter). Currently, in the midst of the COVID-19 pandemic, the Charter is taking a heavyweight Lewis on Tyson beating.

Under Section 2 of the Charter, Canadians are guaranteed certain Fundamental Freedoms, including the freedom of peaceful assembly and freedom of association:

Fundamental FreedomsEveryone has the following fundamental freedoms:

• (a) freedom of conscience and religion;
• (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
• (c) freedom of peaceful assembly; and
• (d) freedom of association.

Section 6 guarantees Mobility Rights within Canada.

Section 7 guarantees the right to Liberty.

Section 9 guarantees everyone the right not to be arbitrarily detained or imprisoned.

Section 12, the right not to be subjected to any cruel and unusual treatment or punishment (solitary confinement, for example).

It can be argued that these freedoms and rights are being trampled at the moment, without clear-cut legislative authority. The Quarantine Act, widely assumed by Canadians to be the justification for closures and restrictions, actually doesn't apply here. The Quarantine Act applies only to individuals and goods entering Canada. It does not afford the Government power to close businesses, restrict travel or mandate forced isolation of Canadians within Canada. Aviation restrictions are covered separately within the Aeronautics Act.

Eric Block of law firm McCarthy Tetrault explains “The Canadian government has not yet invoked its powers under the Emergencies Act by declaring a public welfare emergency, which would enable the government to further regulate or prohibit travel within Canada.”

Current closures, travel restrictions and isolation have been ordered at the Provincial level. To enable this, Provincial governments across Canada have declared states of emergency and/or states of public health emergency which confer powers to make out-of-the-ordinary orders. These orders are not issued under the Quarantine Act.

The restrictions however, clearly contravene provisions of the Charter which guarantee Canadians the freedom of assembly and right to travel. Provincial law is currently in conflict with Federal law.

Crucially, and probably surprising to most Canadians who have not passed the Bar, the Charter contains a weasel-clause. Section 1 reads “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” While arguably Canadians are not free at the moment, with rights suspended by Provincial emergency orders, the operative terms here are “reasonable limits” and “demonstrably justified”.  This Section is what most Charter challenges and defences stand upon; such as contesting your $1,000 fine for gathering over Easter at a family cottage in the Gatineau (say Harrington Lake), or perhaps Muskoka.

A National Post article on May 10th reported that legal groups are currently considering litigation against Provincial governments to roll back restrictions. In Canadian Lawyer Magazine, Global Strategy Lab Director Steven Hoffman predicted a challenge to Quarantine Act restrictions resulting from travel restrictions, “The government will have to show that in order for it to protect the health of Canadians, there wasn't an alternative way that was less impairing of those travellers' rights, other than not allowing them to board a flight destined for Canada.”

The Human Rights Law Section of the Department of Justice information site “Charterpedia” explains, “Section 1 effects a balance between the rights of the individual and the interests of society by permitting limits to be placed on guaranteed rights and freedoms. Most modern constitutions recognize that rights are not absolute and can be limited if this is necessary to achieve an important objective and if the limit is appropriately tailored, or proportionate.”

How quickly our home and native land has been transformed into an effective police-state, without invoking the Emergencies Act. Forced isolation, businesses closed, schools closed, doctor's offices closed (counterintuitively), movement restricted, assembly criminalized, seniors separated from their families, police guarding Provincial borders against Canadian citizens, travel restricted between Municipalities in Quebec, Governments using cell-phone data to spy on citizen movements within cities, and (perhaps most alarming given numerous appalling historical precedents) Canadians encouraged to report their neighbours to police for suspected violations (shades of National Socialism).

What happened to Glorious and Free?

Legislative changes enacted during crisis have a way of becoming permanent…like the Income Tax War Act 1917. So do behavioural changes. The impact of COVID-19 will be tremendous, in ways that think tanks are assuredly now spending their days forecasting.

The current Draconian exercise of power, even with the best of intentions, holds the potential to establish dangerous precedents which could continue to plague us well beyond the current one.

We may discover that we are not who we thought we were.