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Op-ed: Charter challenges to restrictions bound to fail

November 23, 2020 — 

The following is an op-ed written by Karen Busby, a professor in the Faculty of Law. It was originally published in the Winnipeg Free Press on Nov. 23, 2020.


Some religious and civil-liberties organizations assert that laws making masks compulsory or forcing the closure of non-essential businesses violate rights to religious freedom, mobility, security and personal liberty that are protected by the Charter of Rights and Freedoms.

These organizations might be correct that charter rights have been violated, since the threshold for establishing a rights violation is low. Idiosyncratic religious beliefs and practices are charter-protected as long as they are genuine. Yet court challenges to the face-mask and business-closure laws based on charter rights violations are bound to fail.

Finding a rights violation is only the first step in a charter analysis. Governments may violate charter rights as long as the violation is a “reasonable limit” that is “demonstrably justified” in a “free and democratic society.” All government laws and policies should be vetted for charter compliance before they are passed.

The federal minister of justice posts this evaluation for new legislation on a government website, but Manitoba’s regime lacks this transparency. People affected by laws and policies who dispute the government’s justification for limiting rights can ask Canadian courts to examine this justification more closely.

Ever since Confederation, courts have been reluctant to interfere with the types of actions governments take in response to emergency situations, such as laws dealing with wartime shortages of goods or high inflation. While these historic cases were formally decided based on the division of powers between provincial and federal governments, their premise is judicial reluctance to interfere when governments are making very difficult decisions.

The first question a judge asks in evaluating whether a limitation on charter rights is reasonable and demonstrably justified is whether there is a “pressing and substantial” need for the government to respond to a problem. The answer to this question in the face of COVID-19 is obviously “yes,” as we need a considered government response to controlling a worldwide pandemic without unnecessarily undermining the economy.

The next step in determining reasonable justification for charter rights violations is to ask whether the government’s response is proportionate to the harm. First, judges must ask: is there a rational connection between the means to achieve a goal and the goal itself? In other words, will the law do what the law says it will do? Second, judges must ask: is there a less intrusive way to achieve the goal?

While almost no one would say the government should not respond at all, there are legitimate differences of opinion about whether the pain of an almost-total shutdown of the economy will more effectively curb viral transmission than a partial shutdown.

Canadian courts have consistently held that elected politicians, not judges, should have the final say regarding how governments should respond to a novel situation or make decisions when the available research is inconclusive or emerging. Judges will also be deferential when governments are acting to protect vulnerable groups.

As all three of these yield signals are present in the case of COVID-19, judges would defer to political decision-makers unless their decisions were manifestly disproportionate.

It is really a matter of common sense that elected officials, civil servants, public-health experts and economists vigorously debating around a table will make better decisions about what measures are proportionate to the harm than a single judge who may have no training in public health or economics.

Moreover, elected officials are more nimble in responding to new evidence and local conditions than a judge bound by cumbersome procedural and evidentiary rules.

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