The Charter of "Mights" and "Fiefdoms"
Canadians have a problem. The problem is not that the government is stomping all over their rights, the problem is that they do not have any. Canada does not truly have a constitution in the American sense; rather, the guarantor of rights and freedoms is a mutable document that is oft ignored by politicos and magistrates alike. When a Canadian declares that their rights are being violated, they do not mean their rights under the law — all the laws of Canada were cut down long ago — rather, they mean their rights as one of God’s children. Unfortunately, the doe-eyed innocence of Canadians has been the downfall of many court cases in the era of the virus.
Signed as part of the Constitution Act in 1982, ironically by Pierre Elliot Trudeau (for those unfamiliar with Canadian trivia, there is an airport and a pile of manure that bear his surname), the Charter of Rights and Freedoms is treasure trove of guarantees reminiscent of statements in the American constitution. Unlike the American constitution where politicos have to wordsmith their way around explicitly violating it, the Charter has what I like to call a “might” clause. Honestly read, the clause states that the Chart might protect you from infringement on your rights. But it also might not.
The actual clause states that,
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.
This may be the most poorly written clause in Canadian history. It reeks of double-speak, and one has to wonder if it would have been included had the Charter been enacted into law earlier in Trudeau’s career. There is no objectivity to that statement, which allows for basically any violation of the Charter depending on the magnitude of the emergency the government decides to create. As if that was not enough, the Charter ends with a notwithstanding clause, which ensures that the government does not misinterpret the word “reasonable” to mean anything short of “yes, please, violate their rights”.
Canadians have not treated this doublespeak with enough respect as it provides the basis for all kinds of violates. Perhaps, most notably, is the question of “reverse onus” or the presumption of guilt. Most believe the presumption of innocence comes from Sir William Garrow, but it is actually much older than that. Dating back many centuries, even as a feature of Roman law. That a modern country would desecrate a tradition much older than them is only a surprise if one ignores the routine calls for such violations notable in Canadian culture.
The Supreme Court of Canada (R. vs. Oakes, 1982) understood this violation very well when they ruled that a man guilty of a narcotics violation could be assumed to have been guilty because he had narcotics on his person. Thus, searching him for narcotics was reasonably justified. After all, it would be too onerous (wouldn’t want to make life difficult for the police state now, would we?) to actually prove that fact beyond a reasonable doubt. Instead, the SCC ruled that violation of the Charter requires only a preponderance of probabilities, and, in fact, this was when the courts were still not completely corrupted.
These days, not even a preponderance of probabilities is needed to violate the Charter. It can be violated even if the probabilities are not on the side of the people violating the Charter. Consider mask mandates: you will never find a serious person that denies that this is a violation of the Charter. Those in charge not only admit it, they brag about it. The simple folk that deny that any violation has occurred are merely the ones that allow such a violation to occur; they are never the ones creating the violation. We can assume, with some evidence, that these violations are done purposefully as public health orders always make some sort of a nod to the rights being trampled on.
The mask mandates clearly do not consider any probabilities or they would not exist. The probability of actually getting the virus in any given day is remarkably low. Obviously, the odds of getting the virus is not independent of what you did or who you are, but assume that it was for a moment: yesterday, the odds of testing positive for the virus in Alberta would have been about 10 in 100,000. The odds of a negative outcome from testing positive would be a magnitude even lower than that. Most mask studies do not show any positive side effects from wearing a mask, many show negative outcomes. The only one that does show positive side effects has been justifiably accused of p-hacking among other ethical violations.
But let’s pretend that masking does have a small effect, let’s say it causes a reduction of 5% in cases. Suddenly, the odds would be of catching the virus would be 9.5 in 100,000. So, the rights of 200,000 people would need to be violated before a single case of the virus would be prevented. Not a hospitalization. Not a death. A case. In certain settings, this would be higher, and others it would be lower. Does the $23,000 fine given out to Arthur Pawlowski for mask violations make sense? How about in the province next to Alberta, even more sparsely populated, where fines for individuals are $2,000 for individuals?
Interestingly, most Canadians assert that they do not have to wear a mask because of the Charter. The same Charter that explicitly allows their rights to be violated or put a softer way, explicitly says that the Charter might be followed. But they often leave the argument hanging there. They rarely go into a deeper foray into exactly what mechanisms allow their rights to be violated. R. vs. Oakes even lays out the rules that “must be satisfied” (but never are):
There must be a pressing and substantial objective; and,
The means must be proportional.
Where proportional means:
The means must be rationally connected to the objective;
They must not be arbitrary, unfair or based on irrational considerations; and,
There must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".
R. vs. Oakes goes even further and states that:
The severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.
Can anyone truly say that mask mandates pass the Oakes test? Is a single case deterred of a virus in every 200,000 people really such an important enough objective to violate the Charter millions of times? Canada has become a country where the government is jumping over itself to exercise control over the lower classes, a fiefdom in the literal sense.