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Winnipeg Free Press: Politicians must stand up for democracy – Dr. Gerald Heckman

March 1, 2022 — 

An Associate Professor in the Faculty of Law at the University of Manitoba, Dr. Gerald Heckman’s opinion piece on Charter rights in the context of the recent Ottawa protests was published in the Winnipeg Free Press on Tuesday, February 15, 2022.

Dr. Heckman writes:

Less than five months ago, Canadians elected a Parliament with a majority of MPs belonging to parties that openly supported mask and vaccine mandates. Acting on this democratic mandate and based on the public-health evidence at its disposal, our federal government instituted mandates in its areas of jurisdiction.

For more than two weeks, a group of anti-mandate activists has laid siege to our nation’s capital. It has threatened to continue to do so until our elected federal government repeals the mandates or resigns. Other anti-mandate activists have blocked international border crossings in Alberta and Manitoba, impacting small border communities and the supply of goods in both provinces, and blocked Windsor’s Ambassador bridge, Canada’s largest border crossing with the United States, disrupting the trade on which so many Canadians’ livelihoods depend.

They have also threatened to continue their roadblocks until mandates are lifted. Activists in other cities, including Winnipeg, are carrying out protests to support the Ottawa convoy.

Organized by individuals whose stated purpose is to overthrow the federal government, the Ottawa convoy was initially supported and encouraged by prominent politicians, including Candice Bergen, the interim leader of Canada’s official Opposition, Pierre Polievre, an Ontario MP and now front-runner in the race for the Conservative Party leadership, and Scott Moe, the premier of Saskatchewan.

Lost in their Josh Hawley-style raised-fist moment, they apparently forgot that in our democracy, laws and policies are decided by the Canadian people through representatives we choose in free and fair elections, not by individuals who harass and intimidate law-abiding citizens with big trucks and loud horns.

Whatever the merits of these activists’ position on mandates, their actions are a direct challenge to our democratic system of government and must be condemned, without equivocation or partisan games, by all elected officials. A failure to do so would be a betrayal of the democratic ideals Canadians have fought and died for, and would invite more groups with all manner of grievances to take Canadian communities hostage rather than resolve disagreements through political dialogue or legal action.

In the face of the anti-mandate activists’ actions, municipal councils, provincial and territorial legislative assemblies and Parliament itself should, on an urgent basis, adopt unanimous resolutions reaffirming the primacy and legitimacy of democratically elected governments.

Of course, the actions of legislatures and government officials must respect the Canadian Charter of Rights and Freedoms, including freedom of expression, freedom of association and freedom of peaceful assembly. Anti-mandate activists can and have challenged public-health measures in the courts. But the Charter itself states that rights and freedoms are “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

In a 2021 challenge to provincial public-health orders that included restrictions on in-person religious gatherings, Manitoba conceded that the orders had limited the plaintiffs’ freedom of religion, expression and assembly. However, Manitoba’s Court of Queen’s Bench accepted the province’s claim that its public-health orders were justified as reasonable limits under the Charter.

The objectives of these measures – to save lives, prevent serious illness and stop the spread of the COVID-19 virus from overwhelming Manitoba’s hospitals and acute health-care system – were pressing and substantial, and the limitations the orders placed on Charter rights and freedoms were proportionate to achieving these objectives.

Having lost in the courts, anti-mandate activists should respectfully engage with our elected representatives or seek to achieve change at the ballot box rather than carrying out unlawful actions that harm their fellow citizens.

No one should demonize Canadians who are against mandates. They’re our neighbours. Like so many other Canadians throughout the pandemic, they have at times been unable to work and suffered from isolation and a feeling that they have lost control of their lives. They have a right to engage in peaceful, lawful protest that respects the rights of their fellow citizens.

There must be room for listening and for dialogue. But dialogue cannot be coerced, and at the end of the day, our elected representatives — informed by the views of all citizens and by the public-health evidence, and respectful of individual rights and freedoms — must decide when and how mandates will be lifted. On that point, there can be no debate.

© University of Manitoba • Winnipeg, Manitoba • Canada • R3T 2N2

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