Alberta Premier Jason Kenney has always had a complicated relationship with the Charter of Rights and Freedoms, a document he alternately champions or minimizes, depending on which position is the most politically expedient at the time.
As a Conservative MP in 2005, Mr. Kenney tried to argue that federal law that then defined marriage as between a man and a woman did not discriminate against gay people because it did not prohibit them from marrying – as long as they wed someone of the opposite sex. “The fact is, homosexuals have been married and do marry,” he said, insisting that marriage was not about love, but “by definition, about a potentially procreative relationship.”
Later, as immigration minister, Mr. Kenney routinely tested the limits of Charter protections for refugee claimants. In 2012, he sponsored a law that allowed for the mandatory detention for up to a year of asylum seekers from certain countries or those deemed “irregular arrivals.” The law sought to deter bogus refugee claims and smuggling operations, but it did so by placing limits on claimants’ Charter right to a timely judicial review of their case.
So, it was ironic to hear Mr. Kenney last week speak so reverently of the Charter to justify his decision not to impose more restrictive lockdown measures amid his province’s surging COVID-19 case counts. “I certainly didn’t go into public service … in order to impose restrictions on how people live their lives,” he said. Mr. Kenney demonstrated a granular knowledge of the jurisprudence on the limitation of Charter rights, quoting past Supreme Court decisions almost word for word. He clearly understands what the Charter says and does not say better than many sitting judges or practising journalists.
Mr. Kenney again invoked the Charter when pressed by Alberta NDP Leader Rachel Notley about why his government had not cracked down on anti-mask protesters who had defied restrictions on outdoor gatherings.
Critics are correct to take Mr. Kenney to task for caving to his conservative base by appearing to minimize the importance of his own government’s sanitary guidelines. But they are wrong to suggest that Albertans’ Charter rights should somehow take a back seat during a pandemic. It is precisely in times of crisis, when governments invoke rare emergency powers, when vigilance about protecting fundamental rights takes on added importance.
Otherwise, the consequences of the suspension of basic rights risk becoming even more far-reaching and long-lasting than the crisis itself. We saw this in the aftermath of the September, 2001, terrorist attacks. In the name of the war on terrorism, the violation of our privacy rights continues to this day – to the point that we have come to take it for granted.
No, our rights are not inviolable. This is not exactly the discovery of the century. “Most modern constitutions recognize that rights are not absolute and can be limited if this is necessary to achieve an important objective and if the limit is appropriately tailored, or proportionate,” the Supreme Court of Canada said in a 2005 decision upholding a ban on cigarette advertising.
The question of the proportionality of current pandemic restrictions has not been widely tested in the courts. For the most part, Canadians have gone with the flow in accepting government-imposed limits on their freedom of mobility and assembly. The assumption is that courts would uphold such measures as “reasonable” during a public-health emergency.
Concerns about prohibitions on outdoor gatherings of consenting adults are not to be dismissed, however. Such gatherings have a far lower risk of coronavirus spread than indoor ones. The right to freedom of assembly – and, yes, to protest – is about as fundamental as it gets in a democracy. Governments that seek to limit it do so at their peril, as we witnessed during the Black Lives Matter protests that swept the United States earlier this year.
It would be no more appropriate for Mr. Kenney to order police to break up an anti-mask protest than it would have been for Prime Minister Justin Trudeau to tell the RCMP to forcibly remove rail blockades set up earlier this year by Indigenous groups protesting a gas pipeline in British Columbia. In Canada, the police do not take orders from politicians.
The hodgepodge of pandemic restrictions imposed across Canada raises questions about the seriousness with which some governments have taken their obligations to ensure that measures that limit our rights are Charter-proof before they implement them. Canadians should never become blasé about that.
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