Will we skip the democracy post-pandemic?
Skip-the-democracy, anyone? Uber edicts? Life will not be the same after the pandemic. Companies will do more meetings via video call than in person, saving tens of thousands of dollars for corporations and putting thousands of low-paid hospitality staff permanently out of work. Restaurant workers might face the same predicament. What will happen to those Korean barbecue places, which have you cook their food in their restaurants, when all sorts of services will deliver their food for you to cook at home?
Will our democracy be the same?
We have lived a year in which parliamentary democracy and judicial review have been almost entirely usurped by decrees. Much of that has been by the cabinet, using its regulatory powers under various public health and quarantine laws. Other decrees have been made by public health officials themselves, who are not elected.
These measures have largely not been debated in the legislatures, even ex post, let alone ex ante. Very few measures have been passed by statute, let alone been subject to the usual committee hearings and review.
It took almost a year before any of the measures were tested in court for their constitutionality.
Fair enough, emergencies are emergencies and all governments are permitted to move quickly when needed. Democracy can be slow; indeed, it is meant to be slow enough to permit dissenting views to be heard, for debates to be had, for a consensus to develop.
After a year though, when does an emergency mentality shift simply into a change of mentality altogether? When does a crisis response become a permanent shift in democratic culture?
The people’s will has not been thwarted, at least according to survey data. Pandemic restrictions have proved massively popular. There is a considerable constituency which desires more severe and longer measures. It would appear that, in numerical terms, the stricter constituency is larger than those arguing against the lockdowns.
Governments accustomed to imposing their will by fiat, enjoying enormous public support in doing so, may not be so keen to go back to the messiness of parliamentary government. Much more congenial to be a pharaoh than a first minister. At least for the pharaoh.
Indeed, in Ontario, a member of the government caucus, Roman Baber, wrote an open letter expressing his disagreement with government policy. His view was certainly in the minority, but was hardly out of the mainstream of global pandemic debate. He was tossed out of caucus by Premier Doug Ford. I doubt Ontario’s premier-cum-pharaoh will pay any political price for that; if anything it was the popular move. But will our political system pay a price, when the governing party does not have room for a modest range of views?
Courts always lag behind legislatures in acting as a check or balance to the exercise of government power. But a year is a long time for fundamental freedoms to be restricted without sufficient review. That is not so much a court problem as a democratic culture problem. Courts can only deal with cases brought to them by aggrieved parties. Canadians, by and large, are not aggrieved.
British Columbia abolished religious freedom last November, and that case was heard in March. The government prevailed on restricting religious liberty, but was told it could no longer ban outdoor protests. This week, a coalition of evangelical churches is challenging Manitoba’s restrictions in court. That’s about it on the court front.
Canada’s charter does not offer absolute protection of fundamental freedoms. Section 1 makes those rights “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Reasonable limits? A healthy democratic culture permits a discussion about that. Shutting down alternative views in the name of “the science” — at least until the science changes — means that reason has been subjugated to politics more often than we would like to admit. That is what the Charter is supposed to prevent.
Prescribed by law? Does extended government by decree meet that standard? It likely does meet a minimal legal standard. But the political culture — witness the federal government exempting itself from presenting any budget to Parliament in 2020 — is moving away from prescription of law to the proclivities of the powerful.
Demonstrably justified? The constitutional standard requires that abrogating fundamental freedoms must not only be justified, but “demonstrably” so. It’s not enough to simply say that saving lives is the overriding concern. It must be demonstrated. In a court action, that means to the satisfaction of the judges. More broadly, in a healthy democracy those making the decrees ought to demonstrate to the citizenry that emergency suppression of rights is required, and is being done in the least burdensome manner possible.
A free and democratic society? The charter presumes that Canada is such. It has been much less so during the pandemic, for understandable reasons. But will it remain free and democratic afterward?
WHEN DOES A CRISIS RESPONSE BECOME A PERMANENT SHIFT?
A YEAR IS A LONG TIME FOR FUNDAMENTAL FREEDOMS TO BE RESTRICTED WITHOUT SUFFICIENT REVIEW. — RAYMOND J. DE SOUZA