by Jonathan Martin, First Freedoms Foundation Board Member. Previously published in The Lawyer’s Daily.
The global Covid-19 pandemic, and the unprecedented government incursions into the rights and freedoms of Canadians that have resulted from it, represents a pressure test for the section 1 analysis first developed in R v. Oakes,  1 S.C.R. 103and synthesized in subsequent decisions. Never before has the Oakes analysis been tested against government measures that could indefinitely hand over large areas of Charter–protected private decision-making to the government. Is a test that has until now mostly served the purpose of weeding out fringe, peculiar, idiosyncratic, or antisocial Charter claims adequately suited for the challenges before us? At what point do courts need to look past Oakes, go back to the actual wording of section 1, and ask themselves whether the outcome of their decisions still fulfill the promise that Canada must remain a free and democratic society?
There is reason for concern that the distillation and formulization of R. v. Oakes have impoverished the analysis. Despite the relevance of the promise, none of the recent decisions relating to Covid-19 mandates[i] even mention that Canada must remain a fundamentally free and democratic society, as the court in R v. Oakes stated at paragraph 64. A judicial tunnel-vision seems to be emerging that “free and democratic” is synonymous with the three-stage Oakes test; a proposition that R. v. Oakes itself stands against. If the most recent decisions are to be read at face value, a free and democratic society is one where the government can take away any fundamental right it sees fit so long as it has scientific support (after applying deference) for its view that the infringement is rationally related (not even necessary) to the realization of a vaguely stated health and safety objective. The requirement that limits must be “demonstrably” justified, has now been exchanged for a “margin of appreciation” or “deferential” standard of reasonableness if the questions are complex issues relating to the management of the healthcare system or the science and medicine of epidemiology (Beaudoin paras 123-24; Gateway paras 280-283; Taylor, paras 454-464). In other words, unless something changes with our understanding of section 1 of the Charter, Canada could potentially be among the world’s first “free and democratic” healthcare bureaucracy dictatorships, not just in the short-term, but indefinitely. There is no meaningful protection in the current section 1 analysis from this outcome. Here are three ways to change that.
Putting Content back into “Free and Democratic”
Once an infringement to a Charter protected right is found, a meaningful section 1 analysis must require courts to pause and remind themselves, as the court did in Oakes, of the fundamental promise that Canada must remain free and democratic. Courts must recognize that the very continuation of Canada as a free and democratic society is at issue if they do not adequately perform their oversight function. The severity of Charter infringements at issue, how broadly they impact the rights and freedoms of Canadians generally, the historical importance of the rights at issue to Canadian society, the precedent the infringements could set and their potential to grow and swallow other rights, as well as their expected duration, should all be looked at to determine how closely the court must scrutinize the government justifications put forward.
Although some would point out that an examination of “proportionate effect” already takes place at the end of the Oakes analysis, it is beyond dispute that this last stage of the test has become the least important part of the Oakes test; one which has yet to have any effect on the outcome of a case. The current “proportionate effect” stage creates what is in essence a reverse onus situation on the rights holder to prove that they should still be allowed to exercise their rights after the government has justified the infringement. The court in Oakes howeverseemed to envision a burden of justification properly calibrated to the importance of the rights and infringements at issue (para 71). The substance of section 1 would be better represented in a test that acknowledges the importance of the rights and infringements at issue from the outset and then sets the justification burden on the government accordingly. Having a sliding scale of justification burden on the government would also help resolve the contradiction between broad rights and stringent justification Peter Hogg pointed out as early as 1990.[ii]
The duration of the infringements at issue is of particular concern the closer the infringements get to the core of what the freedoms were meant to protect in the first place. Short-term infringements of mobility rights or rights to assemble do not threaten a free and democratic society the way an indefinite abrogation of these rights or of a right as fundamental as the right to choose what to inject into one’s body. A small group not being able to hold a driver’s licence because of a peculiar religious belief[iii], does not fundamentally and permanently undermine freedom of religion the way a continued government control and oversight of the core aspects of religious gatherings for all Canadian churches does. The words of Justice Samual Alito of the US Supreme Court in Calvary Chapel v Sisolak reflect this reality within the context of the Covid 19 pandemic:
“a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.” (Alito J. dissenting opinion in Calvary Chapel Dayton Valley v. Sisolak, 591 US (2021)
The doctrinal justification for an emergency infringement is avoiding the needless sacrifice of human life or property pending the availability of more reliable knowledge and policy options. Life is not flippantly sacrificed in a free and democratic society since valuing life is an indispensable way of valuing individual dignity and worth; the very bases for freedom. In the long-term, however, the freedom impulse must kick back in because valuing life in the long-term can only happen in a society where people are treated as having individuality, goals, dreams and beliefs that matter.
Another important consideration is the scale of the infringements and their potential to inflate and re-shape Canadian society along scientific utilitarian lines. A free and democratic society is one that rejects the very notion that scientific utilitarianism should dominate the discussion when deciding which rights should and should not be permitted. A free and democratic society does not look at rights through a reductionistic lens and would rather sacrifice even life itself than give up the fundamental value of freedom. Our rights and freedoms cannot be adequately protected from a judiciary that does not hold a free and democratic society as something worth preserving even at the cost of life itself.
The values of a free and democratic society were briefly set out in R. v. Oakes and included things like human dignity, accommodation of a wide variety of beliefs and respect for cultural and group identity. To these ought to be added the value of liberty itself, which although normally commented upon in the context of section 7, is inseparable from the concept of a free society. Related to liberty, is privacy, which LaForest J. in R. v. Dyment,  2 S.C.R. 417, stated is “at the heart of liberty in a modern state”. In Godbout v. Longueuil,  3 S.C.R. 844, the court found that “the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference”.
Without a high long-term regard for freedom, what will result is a scientific utilitarianism where rights and freedoms lose their status as inherent and inalienable and become state allowances based upon the projected outcomes of scientific modeling. Such a society could never be described as free and democratic. When we look at Canada’s involvement in World War II and the great loss of life that resulted, we never analyze it as a mere comparison between how many people would have died under Nazi rule vs how many died in the war to overthrow it. When we consider the eugenics experiments the early 20th century, we don’t evaluate them in terms of how they might help “preserve the healthcare system”. When we consider the cloning of humans for organs (even if we could somehow disable the clones’ brains), we don’t think of it in terms of how many lives we could save. A free and democratic society does not answer these questions within such a reductionistic framework. A reductionist view of humanity is the greatest possible threat to a free and democratic society and to human life itself.
[i] Gateway Bible Baptist Church et al. v. Manitoba et al, 2021 MBQB 219 [Gateway]; Beaudoin v British Columbia, 2021 BCSC 512 [Beaudoin]; Taylor v Newfoundland and Labrador, 2020 NLSC 125 [Taylor].
[ii] Peter W Hogg, “Interpreting the Charter of Rights: Generosity and Justification” 28 Osgoode Hall LJ 817 at 818.
[iii] Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37,  2 SCR 567.