by Jonathan Martin, First Freedoms Foundation Board Member. Previously published in The Lawyer’s Daily.
In my previous article, I made the case that the current Oakes test is inadequate to meet the broad-scale threat to our rights and freedoms presented by long-term government responses to new global health problems like the Covid-19 pandemic. I explained that one of the ways to beef up the Oakes analysis would be to put content back into “Free and Democratic” by requiring courts to begin the analysis by looking at things like the scale, duration and importance of the infringements at issue and setting the government burden of justification accordingly. Today’s article will add two other ways to ensure that section 1 jurisprudence remains up to the task of preventing our free and democratic society from becoming an unfree society dictated by the principles of scientific utilitarianism.
Putting Content back into “Demonstrably Justified”
My next proposition is that courts need to start giving more scrutiny to the government objectives being put before them. Such scrutiny was pivotal in the outcomes of a few cases in the 1980s and 1990s[i] but has been on the decline. Enhanced scrutiny is especially important when the objective is scientific in nature as opposed to being more value-laden, such as the protection of reputations at issue in Hill v Church of Scientology. In R. v. Oakes, the court stated that “[t]he standard must be high”, and “at minimum” be “pressing and substantial”. “Pressing and substantial” has, however, become the only standard for all infringements when in fact Oakes seems more likely to have contemplated a range between “pressing and substantial” for low-level infractions, and perhaps by necessary implication, something like “extreme and overwhelming” for very significant infractions.
As explained in Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30,  2 SCR 610, at para 38, a broad objective should be easier to defeat at later stages because it becomes harder to show that the means used are minimally impairing. However, a vague and broad objective of a scientific nature such as “containing the spread” of Covid-19 can dodge those consequences because it can appear both obviously important at the first stage, because a narrow understanding of this objective implies that massive death and suffering will result if the virus is not sufficiently contained, while at the same time making any and all measures seem minimally impairing since a broad understanding of this objective contains no limiting principle on how much the virus must be contained.
Objectives that are scientific in nature must have a reasonably discernible target for the “minimally impairing” stage of the analysis to assess whether other policy options could reasonably hit the same general target. Without a target, there is nothing to analyse. A court is left deciding whether the infringing measure will help fix the problem in some way, and the answer will nearly always be yes. When it comes to containing a virus, almost any measure that restricts movement and activities of people will arguably help in some way. Furthermore, without a sufficiently precise containment target, the court has no ability to meaningfully consider non-infringing alternative ways to hit that target. It can only conduct a single-factor analysis of what will happen with the restriction vs without.
The words “demonstrably justified” should mean something beyond just the question of whether a policy makes scientific sense or enjoys an acceptable level of scientific consensus. It should at the very least mean that the government has a clear objective that is reasonable and realistic. If the issue before us relates to casualties from a virus, the government should state a reasonably precise unacceptable casualty rate, explained with reference to other risks and casualty rates that Canadians currently tolerate or live with because of societal choices or other protected rights. Think for example of how many injuries, deaths and sexual assaults we could avoid if we outlawed alcohol and people had to take a breathalyzer test before they gathered indoors publicly, got in their car, went to work, etc. And drinking alcohol is not even a protected Charter right! Refined foods and the compendium of healthcare problems they cause would also need to be looked at. How much child trafficking could be reduced if we allowed the government to completely monitor all private communications? The Supreme Court of Canada has prevented employers from randomly drug testing employees (for obvious health and safety reasons) because this is viewed as an infringement to their right to privacy.[ii] There are innumerable serious public health problems that could be greatly alleviated with more stringent government measures in a host of areas that we as a society have decided to say no to.
No Justification Available for Saving Money
My last proposition is that courts need to be vigilant that that section 1 not be used by governments to save money. “Preserving the healthcare system” may be a legitimate short-term justification for emergency measures to meet a new emergency, but the long-term obvious solution to “preserving the healthcare system” can only ever be increased healthcare investment, whether from the public purse, from private capital, or both. A free and democratic society does not strip Canadians of their rights merely for the sake of public finance. As Lamer C.J. wrote in Schachter v. Canada,  2 S.C.R. 679, “budgetary considerations cannot be used to justify a violation under s. 1”.[iii] If a publicly funded healthcare system can only be maintained at the cost of fundamental rights and freedoms, perhaps other models will need to be looked at. At the very least, the government should be made to invoke the notwithstanding clause to start the national conversation. Courts must not be a vehicle for governments deceiving their citizens into thinking that giving up their rights is the only way.
Two years into this pandemic, there is a correlation beginning to emerge between the restrictions being put in place to contain the virus, and the funding of the healthcare systems of various regions. Countries and states with well-funded systems are decreasing their restrictions while those with strained systems are maintaining restrictions. This is also true among the various Canadian provinces. The healthcare system should work for Canadians and not the other way around. It will always be easier for governments to take away freedoms than it will be to administer and maintain a functioning and stable healthcare system that can adequately respond and adapt to the stresses of seasonal variants of a virus. This must not be allowed to become the status quo. It would be very troubling for courts to decide that the government has a “margin of appreciation” when deciding whether to invest more in the healthcare system or take away the rights of Canadians.
Canada is at a crossroads. Covid-19 has now been with us for nearly two years and is not showing signs of going away any time soon. With talk of it becoming seasonal in nature, it will be incumbent on courts deciding future challenges to government restrictions that they require a more rigorous justification from the government than what has been required to date. The current crop of recent decisions should be distinguished by the short-term nature of the restrictions the courts were there presented with and given little weight in future cases deciding the long-term and indefinite government restrictions we are now faced with.
Courts will in the future need to squarely address the seriousness of the infringement on Canadian society in general in light of historical freedoms Canadians have been accustomed to enjoying. To the extent the infringements are taking away broad swaths of Charter protected rights on an indefinite basis, the courts will need to require governments to provide clearer objectives behind their policies and apply a rigorous standard of proof showing that the policies in question are the only reasonable way to achieve reasonably precise targets. The targets will themselves need to be contextually defensible in the sense that they accord with the levels of risk and casualties Canadians already tolerate from other public health problems. Finally, courts will need to be skeptical of any claims that continued restrictions of fundamental rights are necessary to “preserve the healthcare system”. The more rigorous analysis being proposed here should be applied to examine both the indefinite continuation of current measures, as well as the implementation of new ones. With the very promise of Canada remaining a free and democratic society now at issue, the stakes have never been higher.
[i] Compare majority and dissenting reasons in Andrews v Law Society of British Columbia,  1 S.C.R. 143; and the discussion in RJR-MacDonald v Canada,  3 S.C.R. 199.
[ii] Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34.
[iii] see also Egan v. Canada,  2 S.C.R. 513, at para. 99; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island,  3 S.C.R. 3; Figueroa v. Canada (Attorney General),  1 SCR 912; and Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66.