Charter not needed to protect our rights

The conversation around Quebec's plan to tax the unvaccinated shows that some Canadians are seemingly incapable of debating the merits of COVID policy without resorting to a robotic recitation of what the Charter of Rights and Freedoms allows or doesn't allow.

In such discussions, the charter is rarely used to elucidate the principles at play. Rather, it is invoked as a way to stop debate, both by those arguing against restrictions, who point to the rights that are being crossed seemingly with impunity, and by those who favour restrictions and smugly point to Section 1, which allows for “reasonable limits” to be placed on those rights.

Amid the flurry of reaction to the Quebec tax proposal, the Globe and Mail's Andrew Coyne observed a “hitherto undetected fondness” for the charter among conservatives. Too often during the pandemic, political debate has been reduced to a flinging back and forth of legalisms that have no bearing on whether the arguments are sound.

A good example came in late 2020 from Alberta Premier Jason Kenney, who was attempting to explain why he was holding off on bringing in tighter health restrictions. “Since when should governments start with an impairment of fundamental charter-protected rights and freedoms, rather than engage in such an impairment as a last and final resort,” he asked.

Kenney was trying to invoke some of the reasoning a judge might use when deciding whether limiting a particular right is justified, rather than simply relying on why freedom is to be valued in and of itself. Predictably, this resulted in a pile of Kenney critics — some lawyers, some not — explaining how, because of Section 1, charter rights are subject to negotiation.

Completely lost in this tedious exchange, and others like it, is whether the health restrictions being contemplated are morally justified, not just legally permitted. As a country, we've completely forgotten how to articulate the value of the right to liberty, with the consequences being that the value we place on it is severely diminished.

It is considered selfish to suggest that personal freedom matters in the age of COVID, even though the fundamental rights of association and assembly have been largely waved away. Many otherwise committed libertarians have seemingly been unable to articulate any objection to heavy-handed restrictions, other than to flail and point fruitlessly at the charter.

However, the recognition of rights is always a political decision made for political reasons. Canada's tradition of protecting rights long predates the charter, and liberal democracies without a constitution comprising a single document, like Great Britain, aren't exactly inches away from descending into totalitarianism.

The inverse is also true. Countries with rights enshrined in their constitutions, like Canada and the United States, are still prone to limiting those rights using dubious political reasoning, such as the post-9/11 era that brought in anti-terrorism laws that permitted arrests without warrants and expanded police surveillance powers.

Early on, when those laws were challenged, judges largely deferred to Parliament. “The courts aren't immune from the broader political context of the day,” one political scientist told the Post this week. Much the same is happening now, as nearly every time a health restriction is challenged in court, judges have sided with governments, on the grounds that limiting rights is justified given the public health concerns they are meant to address.

It is politics, not law, that is determining how much to balance freedom against public health, just as it is politics, not the constitution or its judicial interpretation, that determines which rights are to be recognized. While the charter may reserve special protection for some rights, the selection of which is itself a political choice, not all rights Canadians enjoy are protected specifically by the written part of our Constitution.

Before our lives were ruled by medical dictates, you could enter, say, a restaurant, and pay to be served a meal. If you agreed to pay and the restaurant agreed to serve you, you had the right to do that. In most places, that right is now limited based on vaccination status, which is imposed by the government.

At the very least, vaccine passports limit the property rights of business owners to serve paying customers at their own discretion. But pointing that out is to invite some pedant with a law degree to tell you that property rights are not protected under the charter.

Property rights may not have constitutional status, but if someone takes your property, they can be arrested for theft, and you can sue others who have damaged or destroyed your property. The government can't normally expropriate your property without compensation.

Again, just because a new restriction or new law has been found to be constitutional does not also mean that it is good policy; the existence of a legal precedent does not mean it is the right thing to do.

Protecting rights is important because it speaks to who we are, but they are also beneficial to all of us. Prosperous and happy societies, with an abundance of necessities like food and clothing, but also with the things that make life worthwhile, like the arts and sports, are the ones that leave people to their own devices.

We don't need the charter to tell us that, but we do need to remember how to argue for it.

LEGAL PRECEDENT DOES NOT MEAN IT IS THE RIGHT

THING TO DO.