CARPAY: A judge-resistant bill of rights?

Section 1 of the Charter allows judges to trample on our Charter freedoms. The Alberta Bill of Rights does not have a similar provision. “The Canadian Charter of Rights and Freedoms 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.” Thus reads Section 1 of the document added to Canada’s Constitution in 1982. In R. v. Oakes (1986) the Supreme Court ruled that when a federal or provincial government violates a Charter right or freedom by way of a law (regulation, policy, health order, etc.) the government must justify “demonstrably” with cogent and persuasive evidence that its law is reasonable, rational, truly necessary, and bringing about more good than harm. When judges determine that a government failed to meet this burden, judges should strike down laws, regulations and government policies as unjustified violations of our freedoms of conscience, religion, expression, association, peaceful assembly, mobility, bodily autonomy, equality rights and so on. Unfortunately, Canada’s judges can — and in recent years often do — uphold freedom-violating health orders and other laws, even when governments admit in court that their health orders do violate Charter freedoms.The Alberta Bill of Rights requires that every law Alberta be so construed and applied as not to “abrogate, abridge or infringe” the freedoms of religion, speech, the press, assembly, and association. The Alberta Bill of Rights also requires construing and applying every law in Alberta as not violating or restricting the individual’s right to liberty, security of the person, enjoyment of property (and the right not to be deprived thereof except by due process of law), and the right of parents to make informed decisions respecting the education of their children.Happily missing from the Alberta Bill of Rights is a provision like Section 1 of the Charter, that expressly empowers judges to condone violations of our freedoms of expression, association, conscience, assembly, etc. All of Alberta’s laws, and their enforcement, must comply with individual rights and freedoms. Period. There is no room for the Alberta government to argue in court that “yes, our law does violate the freedoms of speech, association and assembly, but we think we have a really good reason for trampling on individual rights.”Some recent court rulings have been atrocious, making it very easy for governments to violate Charter freedoms by using Section 1. In Ontario v. Trinity Bible Chapel (2022), the judge repudiated the Oakes test and lowered the bar for government, upholding violations of Charter freedoms without engaging in serious scientific analysis of the relevant issues: “My role is not that of an armchair epidemiologist. I am neither equipped nor inclined to resolve scientific debates and controversy surrounding Covid-19.” The judge further declared that “it is not my task to mediate or resolve conflicting views about Covid-19.”Wrong! Resolving conflicting views is the very heart of a judge’s job description, and that includes resolving conflicting views about science. Instead of requiring the government to justify its health orders “demonstrably” with persuasive evidence, the judge asked, “Was it open to Ontario to act as it did?”Some judges have made assertions that appear to be based only on what the CBC and other government-funded media have stated repeatedly. For example, in Gateway Bible Baptist Church v. Manitoba (2021), the judge described COVID-19 as an “unprecedented” public health threat and “the worst global pandemic in over a century.” The judge did not reference any evidence to support his highly dubious claim that COVID-19 was more deadly than the the 1957-58 Asian Flu and the 1968-69 Hong Kong Flu, each of which claimed between one and four million lives, according to the World Health Organization.In O.M.S. v. E.J.S., Harper-appointed judge Michael Megaw ordered a 12-year-old Saskatchewan girl to get injected with the COVID-19 vaccine, against her will and against the will of her mother. In September 2021, he declared that COVID-19 posed a “serious and significant” health risk to children, and that he needed no specific proof to support his conclusion. If this judge had bothered to look at death statistics from Canada or other countries, he would have understood that children were as likely to die of Covid as they were to die of lightning strikes. The judge went on to take “judicial notice” of the “fact” that the COVID-19 vaccine was “safe and effective” for use in both adults and children, because Health Canada and the Saskatchewan Health Authority had said so. This judge asserted that no reasonable person would dispute the accuracy of a claim made by a government health authority! What about thalidomide, a drug deemed safe and effective by health authorities in the 1950s that killed and damaged so many babies across the globe?In Hillier v. Ontario (2023), the Ontario Superior Court of Justice upheld the government’s total ban on all outdoor protests as a justified violation of the Charter freedom of citizens to assemble peacefully. Contrary to what the Oakes ruling requires, the judge gave no serious consideration to the very real harms that lockdowns inflicted on millions of people. The judge completely ignored a lengthy and comprehensive report by medical anthropologist Dr. Kevin Bardosh that exposed the magnitude of lockdown harms in Canada.Some court rulings are more media-based than evidence-based. Section 1 of the Charter has made it easy for governments to violate rights and freedoms simply by declaring a public health emergency. Fortunately, the Alberta Bill of Rights has no equivalent provision.John Carpay, B.A., LL.B. is president of the Justice Centre for Constitutional Freedoms (jccf.ca.)

CARPAY: A judge-resistant bill of rights?

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