The Re-opening Ontario Act and others like it throughout the country have given Canadians the ostensible view that their rights are on hold – that the emergency powers supersede their rights. This couldn’t be further from the truth – but we understand how the draconian actions that we’ve been beholden to would cause you to question the aforementioned statement. Things also become especially obscure when we witness police enforcement of these unjustified measures – they lend credibility where it otherwise might not exist.
In the explanatory note at the beginning of the Re-opening Act legislation it states the following;
“Enforcement provisions are included to provide for court orders to restrain contraventions and to provide for offences. Those provisions are based on provisions of the Emergency Management and Civil Protection Act.”
It explains this further in section 2 of the Re-opening Ontario Act;
“The orders made under section 7.0.2 or 7.1 of the Emergency Management and Civil Protection Act that have not been revoked as of the day this subsection comes into force are continued as valid and effective orders under this Act and cease to be orders under the Emergency Management and Civil Protection Act.”
This sounds confusing but I’ll attempt to clarify. Sections 7.02 or 7.1 of the Emergency Management and Civil Protection Act are still valid when the Re-opening Act came into force and are continued as valid and effective orders. They are thus included in the new act under the Re-Opening Ontario Act.
Sections 7.01 and 7.02 Of the Emergency Management and Civil Protection Act
Section 7.02 (1)
I’ve cross-referenced the “2006, c.13, s. 1 (4)”listed below in Ontario.ca where you can search E-laws and the following link returns which is titled “Emergency Management and Civil Protection Act, RSO 1990, c E.9” the same thing we’re referencing from Canlii.org.
Emergency powers and orders
7.0.2 (1) The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms. 2006, c. 13, s. 1 (4).”
That means orders under the Re-Opening Ontario Act are subject to the Canadian Charter of Rights and Freedoms. This means that all measures that violate any of Ontarian’s Charter rights are subject to reasonable limits that can be demonstrably justified in a free and democratic society.
“1.)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.”
What does this mean? Do I have rights or don’t I?
An article titled “COVID-19: Limits on Governments’ Emergency Powers” written by the law firm McCarthy tetrault – the number 2 law firm in all of Canada according to the 2018 Acritas survey, had this to say about section 1 of the charter of Rights and Freedoms as it relates to governments Covid-19 powers;
“Charter rights are not absolute; as noted above, s. 1 provides that they are guaranteed “subject … to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. If a government measure in response to COVID-19 limits a Charter right, and if that measure is challenged in court, then the government will be required to show that the limit is justified. Whether the limit is justified will be, “by its very nature[,] a fact-specific inquiry”
In the case of MacDonald Inc. v. Canada (Attorney General) the judge had this to say;
“The s. 1 inquiry is by its very nature a fact-specific inquiry. In determining whether the objective of the law is sufficiently important to be capable of overriding a guaranteed right, the court must examine the actual objective of the law. In determining proportionality, it must determine the actual connection between the objective and what the law will in fact achieve; the actual degree to which it impairs the right; and whether the actual benefit which the law is calculated to achieve outweighs the actual seriousness of the limitation of the right. In short, s. 1 is an exercise based on the facts of the law at issue and the proof offered of its justification, not on abstractions.”
In essence, the infringement on your rights is subject to the Oakes Proportionality test which is a 2 part test. It will also stand unless challenged in court.
Oakes Proportionality Test
The following is from “A Brief Introduction to Law in Canada” by John Fairlie and Philip Sworden;
“The court developed a general two-part test, now known as the Oakes test, to determine whether a law that infringes the charter is a “reasonable limit” on one’s Charter rights. The onus is on the Crown to show on a balance of probabilities (or preponderance of probability) that the limit is a reasonable one by proving (1) that it relates to an important social objective, and (2) that it is a proportionate response to the problem. Specifically the Crown must prove the following:
- Important Social Objective (“pressing and substantial” concern)
The government’s objective in creating the law must be shown to be “of sufficient importance” to warrant overriding a Charter right. The standard for this part of the test is high, but is often met by the government in Charter cases. In the words of the SCC for an objective to qualify as sufficiently important, it must relate “to concerns which are pressing and substantial in a free and democratic society.”
If the objective is found to be sufficiently important, the government must show that the means used are a reasonable and fair way to achieve its legislative objective. To make this determination, a court considers three components or criteria, all of which must be satisfied in the circumstances:
i. Rational connection: The measures that impair the Charter right must be designed to achieve the government’s objective – in other words, the measures must be “rationally connected” to the objective. They must not be arbitrary, unfair, or based on irrational considerations.
ii. Minimal impairment: If a rational connection exists, the court will then examine the degree to which the measures impair the right or freedom. The right should be impaired “as little as possible,” and if it is possible to impair a right to a lesser degree and still achieve the objective, the government must do so in drafting its legislation. Many arguments put forward by governments in defending legislation fail this part of the test.
iii. Proportionate effect: The effects of the measures that limit the right or freedom must be proportionate to the objective identified in the first part of the test. In other words, this third part of the test weighs the benefit to society as a result of the law’s being in place with the negative effects on those whose rights the law impairs. The greater the impairment of the right, the more important the objective must be.”
If you don’t have the funds to purchase this textbook you can read CanLii’s general summary here.
Recently, a gym owner in New York was able to re-open his gym at 100 percent capacity when the judge ruled in his favour. The gyms lawyer, Paul Cambria argued the capacity limit was “arbitrary and capricious.” They are now allowed to open at 100 percent capacity but must follow other safety protocols in place like masking and social distancing. However, a precedent has now been set for other business owners to use the ruling as precedent in their own challenges.
This is how courts work – once a precedent is set, others can follow suit in their challenges. If someone were to challenge mandatory masks and prove that they aren’t effective in reducing transmission, especially in light of this recent study on asymptomatic transmission that showed no viable virus in 300 asymptomatic cases – this too could be struck down and set a precedent for other businesses and even municipalities to follow.
These measures will remain intact however even if they aren’t challenged in court and proven to not be justified. On this note, it would be in the best interest of Canadians to not wait on one lawyer or a few lawyers to try to reverse these decisions but to crowdfund their own challenges.
More eggs in the justice basket presents more opportunities for wins. If your thinking of taking an action against a measure that is against the Charter you should known most lawyers will take on a legitimate case – so long as you can pay their retainer and fees. You must argue the facts of the matter and search for other court rulings that could help you in court. Be as specific as possible.
In the case of masking, you may find the Ontario Nursing Association court ruling (2018) where they struck down St. Michael’s vaccine or mask policy (VOM) twice helpful. The arbitrator of the case had this to say;
“After reviewing extensive expert evidence submitted by both ONA and St. Michael’s Hospital, which was the lead case for the TAHSN group, Arbitrator William Kaplan, in his September 6 decision, found that St. Michael’s VOM policy is “illogical and makes no sense” and “is the exact opposite of being reasonable.” In reaching this conclusion, Arbitrator Kaplan rejected the hospital’s evidence.”
In addition, arbitrator Hayes in his 2015 court ruling for the ONA against the VOM (vaccine or mask) policy said there was “scant evidence” to support the policy.
“Arbitrator James Hayes struck down the same type of policy in an arbitration that included other Ontario hospitals across the province, with Sault Area Hospital as the lead case. Hayes found there was “scant evidence” that forcing nurses to use masks reduced the transmission of influenza to patients.”
So what rights do we have under the Charter of Rights and Freedoms?
Section 2 of the Charter Of Rights
- Everyone has the following fundamental freedoms: (a) freedom
- of conscience and religion; (b) freedom of thought, belief, opinion and
- expression, including freedom of the press and other media of communication;
- (c) freedom of peaceful assembly; and (d) freedom of association.
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than
those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
- Everyone has the right to life, liberty and security of the person and
- the right not to be deprived thereof except in accordance with the principles
- of fundamental justice.
As you can see from our rights outlined in the charter – many of the rights have been violated in the government’s approach to dealing with Covid. It’s now on individual citizens to challenge these measures in court and prove that they don’t meet the Oakes Proportionality test.
This article is an opinion. We give as many reference sources as we can but the author is not legally trained and not able to offer legal advice. Diverge Media will not be responsible if you decide to use examples in this article and are unsuccessful in a court challenge.
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*More to come*