When protests should be considered a criminal act

Imagine that Canada has been invaded by a foreign army, which over the last 18 months has rounded up and killed more than 27,000 of us, wounded tens of thousands more and forced us to take shelter from its attacks, thus crippling our economy.

Now imagine it threatened to kill thousands more of us because not enough of us are resisting its renewed and possibly most deadly assault yet.

How would our governments respond? How would we expect them to respond to not having enough of us volunteering to fight the invader? We would expect there to be a draft? Of course we would.

A military draft and military service violates a host of our rights enshrined in the Charter of Rights and Freedoms, but every violation would either stand up to constitutional challenge in the courts or we would expect the federal government to rely upon the “notwithstanding clause” or “override power” in the charter to uphold its draft and military service legislation.

In times of invasion, the needs of the community as a whole come before the desires and imagined entitlements of the individual or there will not be a community for those individual rights to thrive in again.

Even a brief study of human history reveals plague invasions are a certain part of human existence. We were due for a deadly one. We are apparently, as likely as not, due for another, even deadlier one soon. It is frightening and depressing, yes, but it is part of the reality of being human.

It is, however, also part of the reality of being human that we do not have to helplessly succumb to any disease. We can fight them all. We have survived terrible ones by taking learned, appropriate precautions. We have altogether conquered many with vaccinations and actual cures. We will almost certainly conquer more.

The charter does not stand in the way of us organizing the community to accomplish this and prevent individuals from sabotaging the effort any more than it would protect individuals who refuse to be drafted into military service to fight an invading army.

The charter is not cheapened or endangered by protecting the very lives of the members of the community from either immediate death or injury from an invader of any kind or from the slow death and deprivation caused by a strangled economy.

Since the vaccinations became widely available, the people refusing to take them while complaining about the effect of lockdowns to the economy have been the very cause of those lockdowns or other lesser restrictions on normal economic activity.

The demonstrators this past week at the doors of hospitals, which impeded ambulances, terrorized patients and psychologically devastated the truest heroes in the fight against the pandemic invader have, at long last, I hope, finally gone too far.

This was the equivalent of storming our own military installations while we are in a war for survival. Such acts are criminal acts against the community and should be defined and legislated as such — and not merely as quasi-criminal ticketable provincial offences.

Gathering in large groups, unvaccinated and unmasked in a time of pandemic, is a criminal act against the community and should be defined as such. Let people charged with such offences try to argue in a court of law they are unconstitutional because their individual rights that are infringed are greater than those of the community.

I am a defence lawyer. Some will question why a defence lawyer would argue for such limits on individual rights, imagining being a defence lawyer to be some kind of law-hating anarchist.

I suspect very few defence lawyers hate laws.

What we hate are unfair laws, laws without rational and scientific justification, and the unequal and prejudicial enforcement of laws that make a mockery of individual rights and, in so doing, endanger the whole community.

I believe there would be nothing contrary for most of us in the criminalization of unmasked, unvaccinated groups terrorizing and interfering with the operation of hospitals or gathering as such anywhere, even if simply for being part of such groups.

We who fight for unpopular causes everyday in court do not understand the political cowardice that allows for a small minority of the population to thwart community efforts to fight and survive this pandemic and revive the economy.