COVID-19 RESTRICTIONS DO NOT SUSPEND OUR CHARTER RIGHTS

Premier is wrong to say freedoms are on hold, writes Eric M. Adams.

When announcing the Government of Alberta's latest public health measures placing tougher restrictions on private social gatherings, and religious, business, recreational, and cultural activity, the premier of Alberta made a startling admission. The measures his government was putting in place, he claimed, meant that “constitutionally protected rights and freedoms … are being suspended” in Alberta.

It's a scary thought. As if a pandemic wasn't enough, the premier conjured, for a public yearning for calm and capable leadership, an image of constitutional lawlessness.

Was he right? The next morning, when pressed by a radio interviewer, the premier doubled down.

“We're … talking about the suspension of constitutionally protected rights and freedoms,” the premier argued. “What courts have told us for 35 years … is that such abridgements must be proportionate and must be necessary and they must be limited. Limited abridgements. And the notion that you immediately, without much debate or reflection on it, fundamentally impair peoples' rights and freedoms is not the kind of society most Albertans want to live in.”

The kind of society this Albertan wants to live in is one in which the response to the pandemic is based on a full understanding of the Constitution that governs us.

Without question, the government's restrictions on public and private gatherings limit the Charter-protected “freedom of peaceful assembly,” and “freedom of association.” Likewise, a mandatory mask order restricts the Charter's “freedom of expression” by requiring you to express yourself in a way you may not have chosen. Orders to restrict religious services and ceremonies clearly limit “freedom of conscience and religion.”

The premier is right that a number of public health measures limit important civil liberties. None of these measures would be constitutionally sustainable without justification driven by the extraordinary circumstances of the moment. But, of course, the rights and freedoms set out in the Charter are not absolute, and for good reason. Section 1 of the Charter “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.”

Courts judge whether or not a limitation on a right is justified based on whether the government has a compelling rationale for doing so, and whether the limit is proportionate given the public good to be achieved. As Chief Justice Brian Dickson pointed out in the famous Oakes case interpreting Section 1: “It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance.”

The Supreme Court subsequently recognized that a law may often limit some rights in order to protect and promote other important rights and freedoms. In such cases, the Supreme Court held that it did not make sense that a government must only restrict rights “as little as possible,” since the government would be attempting to balance and mediate between conflicting rights claims.

“If the legislature has made a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves weighing conflicting scientific evidence, and allocating scarce resources on this basis, it is not for the court to second guess,” the court explained.

The Supreme Court has also noted that where there are competing rights in play, “there may be no obviously correct or obviously wrong solution, but a range of options each with its advantages and disadvantages. Governments act as they think proper within a range of reasonable alternatives … (I)n such cases governments have a large `margin of appreciation' within which to make choices.”

There is no better example than the current pandemic of governments acting to protect “collective goals of fundamental importance” and attempting to balance competing rights and freedoms. When the premier talks of suspending or abandoning the Charter, he fails to recognize the ways in which public health restrictions protect other important Charter-protected rights and freedoms. In addition to the select fundamental freedoms repeatedly emphasized by the premier, the Charter equally protects the right to “life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The Charter also guarantees the right to the “equal protection and equal benefit of the law” and the right not to face discrimination on the basis of “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Government restrictions which justifiably limit certain civil liberties are not an abandonment of Charter rights, and certainly not a suspension of them. We know that this pandemic will disproportionately impact older people, those dealing with other health concerns, racialized communities, and those facing economic vulnerability. And we know that a healthcare system under strain or collapse will not be able to provide full care for all of the other health-care matters that Canadians face. These are matters of life and death.

It is equally true that restrictions on the freedom to gather and worship, and the economic impacts of restricted business have material impacts and cause harms in peoples' lives. Governing presents difficult choices in such moments, but they are choices about a balance of rights and protections.

The premier is right that no government should entertain the limitation of fundamental freedoms without justified cause. He is wrong to suggest that Canadian courts have compelled him to do the bare minimum to deal with the worst public health crisis in a century. And he is alarmingly wrong if he thinks he has abandoned or suspended the Charter in the process of protecting lives and a functioning health-care system.

In the first Charter case to reach the Supreme Court, Chief Justice Dickson stressed the importance of interpreting the Charter in a way that would protect individual rights and liberties but remain mindful that the Constitution “must

... be capable of growth and development over time to meet new social, political and historical realities.” Courts must “not read the provisions of the Constitution,” the Chief Justice held, “like a last will and testament lest it become one.”

(Kenney) is wrong to suggest that Canadian courts have compelled him to do the bare minimum to deal with the worst public health crisis in a century.