Letter to the Editor

Not anti-vaccine, but concerned about the limitations on your rights and freedom?  Me too. Undeniably our freedoms have been limited during this unprecedented public health crisis.

The anti-vaccine movement is tied to the discussion on individual rights and freedoms versus our responsibilities to society. For the government it’s a daunting balancing act where decisions need to be made with limited information and an ever-changing body of knowledge.

Many good people – governments, scientists and healthcare workers – have been doing a heroic job getting on top of COVID-19 and keeping up with new developments. If you understand Canada is battling a very communicable and dangerous public health crisis (you’re not anti-vaccine), then you understand that public safety is important.

Had the pandemic been left unfettered more Canadians would be dead. Many more would be suffering from the debilitating effects of long Covid. Our emergency healthcare system would have collapsed. In some respects, the Canadian government is a victim of its own success. Those who are pro-vaccine understand this.

The real discussion is about fundamental rights and freedoms balanced with safety and security for all.

Fortunately, Canada has many laws and protections for these rights. We have limitations on government action enshrined into all legislation. The slippery slope argument is a fallacy. The fear of our government falling into totalitarianism is unfounded. Nobody wants that!

Like standing at a lookout, there is an extensive guardrail that stops the government from tumbling down the hill.

The Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights are supreme, and the first order of business for our governments. They cover every law and effect of the law that the government undertakes. On top of that our government must also regard the International Covenant on Civil and Political Rights.

There are principles inherent in Canadian governance (this is some usually boring legalese but important to understand):

• The principle of constitutionalism and the rule of law – The Constitution including the Charter is supreme. Laws must be consistent with these.
• The principle of parliamentary democracy – We have a forum for input from all voices including parliamentary committees (where laws are revised by all parties and often don’t look anything like the first reading), public consultations and much more.
• The principle of adjudication – We have an independent legal system with an independent judicial system that can send laws back to the drawing table.
• The principle of continuity – Laws are based on previously decided cases within government. This means consistent application of “public interest” when determining the legal validity of government legislation. It builds on the law and doesn’t stand alone.
• The principle of consistent application of the Charter – This means the government has to act on the shoulders of the Charter and decisions already made about the Charter. Both Liberal and Conservative governments operate under these continuities.
• The principle of access to justice – Ensuring everyone has fair and consistent access to justice.

“The Charter (however) recognizes that even in a democracy, rights and freedoms are not absolute. For instance, freedom of expression is guaranteed, but no one is free to yell “fire” in a crowded theatre or to spread hate propaganda.”

“Therefore, federal or a provincial legislature can limit fundamental rights, but only if that government can show that the limit is :

• reasonable,
• is prescribed by law, and
• can be justified in a free and democratic society.” (Quotes and information from government website below.).

Legislation limits our freedoms. We are not free to kill our neighbour. Freedom of expression is limited by child pornography laws, copyright laws, libel and slander laws, discrimination laws and more. These are laws deemed “reasonable and can be justified in a free and democratic society.”

The interests of society must be balanced against the interests of individuals to see if limits on individual rights can be justified. It is a nuanced undertaking with many checks and balances, and much legal scrutiny by the Attorney General’s office, Parliament, and the legal system. Rigorous defence of the Charter of rights and freedoms means the public’s best interests are supreme, and come first.

By law, states of emergency temporarily suspend rights. We are seeing many states of emergency during the COVID-19 crisis. By law, states of emergency must end! Unfortunately the challenges of this pandemic wearing on and on are now wearing on our patience.

The Emergency Act is clear: “The safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state, are fundamental obligations of government.”

Serious threats to Canada and Canadians, like a national public health crisis, obligate the government to ensure our safety and security during an emergency. That is why the government is authorized, with Parliament supervising, to take special temporary measures that may not be appropriate during normal times.

According to the act, with these temporary measures the government is still subject to:

• the Canadian Charter of Rights and Freedoms
• the Canadian Bill of Rights
• and the International Covenant on Civil and Political Rights.

The government must continue to regard these provisions even during a national emergency.

Freedoms we have lost during the pandemic, like going to the gym, will be restored – and relatively quickly. While not perfect, the government has put together a number of programs to help those struggling as a result of imposed restrictions.

The good news is we are starting to move away from “pandemic” to “endemic.” We will emerge with new lessons learned. My hope is we can move forward and heal the political divisions that have hurt families and friends.

We have tremendous legal precedent protecting our rights and freedoms during and after a public health emergency. There are principles enshrined into all legislation that stop our government from running amok.

Robin Goldsbury,

Balfour

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