The global Covid-19 pandemic, and the unprecedented government incursions into the rights and freedoms of Canadians that have resulted from it, represents a pressure test for the section 1 analysis first developed in R v. Oakes,  1 S.C.R. 103 and synthesized in subsequent decisions. Never before has the Oakes analysis been tested against government measures that could indefinitely hand over large areas of Charter–protected private decision-making to the government. Is a test that has until now mostly served the purpose of weeding out fringe, peculiar, idiosyncratic, or antisocial Charter claims adequately suited for the challenges before us? At what point do courts need to look past Oakes, go back to the actual wording of section 1, and ask themselves whether the outcome of their decisions still fulfill the promise that Canada must remain a free and democratic society?
There is reason for concern that the distillation and formulization of R. v. Oakes have impoverished the analysis. Despite the relevance of the promise, none of the recent decisions relating to Covid-19 mandates[i] even mention that Canada must remain a fundamentally free and democratic society, as the court in R v. Oakes stated at paragraph 64. A judicial tunnel-vision seems to be emerging that “free and democratic” is synonymous with the three-stage Oakes test; a proposition that R. v. Oakes itself stands against. If the most recent decisions are to be read at face value, a free and democratic society is one where the government can take away any fundamental right it sees fit so long as it has scientific support (after applying deference) for its view that the infringement is rationally related (not even necessary) to the realization of a vaguely stated health and safety objective. The requirement that limits must be “demonstrably” justified, has now been exchanged for a “margin of appreciation” or “deferential” standard of reasonableness if the questions are complex issues relating to the management of the healthcare system or the science and medicine of epidemiology (Beaudoin paras 123-24; Gateway paras 280-283; Taylor, paras 454-464). In other words, unless something changes with our understanding of section 1 of the Charter, Canada could potentially be among the world’s first “free and democratic” healthcare bureaucracy dictatorships, not just in the short-term, but indefinitely. There is no meaningful protection in the current section 1 analysis from this outcome. Here are three ways to change that.
Putting Content back into “Free and Democratic”
Once an infringement to a Charter protected right is found, a meaningful section 1 analysis must require courts to pause and remind themselves, as the court did in Oakes, of the fundamental promise that Canada must remain free and democratic. Courts must recognize that the very continuation of Canada as a free and democratic society is at issue if they do not adequately perform their oversight function. The severity of Charter infringements at issue, how broadly they impact the rights and freedoms of Canadians generally, the historical importance of the rights at issue to Canadian society, the precedent the infringements could set and their potential to grow and swallow other rights, as well as their expected duration, should all be looked at to determine how closely the court must scrutinize the government justifications put forward.
Although some would point out that an examination of “proportionate effect” already takes place at the end of the Oakes analysis, it is beyond dispute that this last stage of the test has become the least important part of the Oakes test; one which has yet to have any effect on the outcome of a case. The current “proportionate effect” stage creates what is in essence a reverse onus situation on the rights holder to prove that they should still be allowed to exercise their rights after the government has justified the infringement. The court in Oakes however seemed to envision a burden of justification properly calibrated to the importance of the rights and infringements at issue (para 71). The substance of section 1 would be better represented in a test that acknowledges the importance of the rights and infringements at issue from the outset and then sets the justification burden on the government accordingly. Having a sliding scale of justification burden on the government would also help resolve the contradiction between broad rights and stringent justification Peter Hogg pointed out as early as 1990.[ii]
The duration of the infringements at issue is of particular concern the closer the infringements get to the core of what the freedoms were meant to protect in the first place. Short-term infringements of mobility rights or rights to assemble do not threaten a free and democratic society the way an indefinite abrogation of these rights or of a right as fundamental as the right to choose what to inject into one’s body. A small group not being able to hold a driver’s licence because of a peculiar religious belief[iii], does not fundamentally and permanently undermine freedom of religion the way a continued government control and oversight of the core aspects of religious gatherings for all Canadian churches does. The words of Justice Samual Alito of the US Supreme Court in Calvary Chapel v Sisolak reflect this reality within the context of the Covid 19 pandemic:
“a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.” (Alito J. dissenting opinion in Calvary Chapel Dayton Valley v. Sisolak, 591 US (2021)
The doctrinal justification for an emergency infringement is avoiding the needless sacrifice of human life or property pending the availability of more reliable knowledge and policy options. Life is not flippantly sacrificed in a free and democratic society since valuing life is an indispensable way of valuing individual dignity and worth; the very bases for freedom. In the long-term, however, the freedom impulse must kick back in because valuing life in the long-term can only happen in a society where people are treated as having individuality, goals, dreams and beliefs that matter.
Another important consideration is the scale of the infringements and their potential to inflate and re-shape Canadian society along scientific utilitarian lines. A free and democratic society is one that rejects the very notion that scientific utilitarianism should dominate the discussion when deciding which rights should and should not be permitted. A free and democratic society does not look at rights through a reductionistic lens and would rather sacrifice even life itself than give up the fundamental value of freedom. Our rights and freedoms cannot be adequately protected from a judiciary that does not hold a free and democratic society as something worth preserving even at the cost of life itself.
The values of a free and democratic society were briefly set out in R. v. Oakes and included things like human dignity, accommodation of a wide variety of beliefs and respect for cultural and group identity. To these ought to be added the value of liberty itself, which although normally commented upon in the context of section 7, is inseparable from the concept of a free society. Related to liberty, is privacy, which LaForest J. in R. v. Dyment,  2 S.C.R. 417, stated is “at the heart of liberty in a modern state”. In Godbout v. Longueuil,  3 S.C.R. 844, the court found that “the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference”.
Without a high long-term regard for freedom, what will result is a scientific utilitarianism where rights and freedoms lose their status as inherent and inalienable and become state allowances based upon the projected outcomes of scientific modeling. Such a society could never be described as free and democratic. When we look at Canada’s involvement in World War II and the great loss of life that resulted, we never analyze it as a mere comparison between how many people would have died under Nazi rule vs how many died in the war to overthrow it. When we consider the eugenics experiments the early 20th century, we don’t evaluate them in terms of how they might help “preserve the healthcare system”. When we consider the cloning of humans for organs (even if we could somehow disable the clones’ brains), we don’t think of it in terms of how many lives we could save. A free and democratic society does not answer these questions within such a reductionistic framework. A reductionist view of humanity is the greatest possible threat to a free and democratic society and to human life itself.
Putting Content back into “Demonstrably Justified”
My next proposition is that courts need to start giving more scrutiny to the government objectives being put before them. Such scrutiny was pivotal in the outcomes of a few cases in the 1980s and 1990s[i] but has been on the decline. Enhanced scrutiny is especially important when the objective is scientific in nature as opposed to being more value-laden, such as the protection of reputations at issue in Hill v Church of Scientology. In R. v. Oakes, the court stated that “[t]he standard must be high”, and “at minimum” be “pressing and substantial”. “Pressing and substantial” has, however, become the only standard for all infringements when in fact Oakes seems more likely to have contemplated a range between “pressing and substantial” for low-level infractions, and perhaps by necessary implication, something like “extreme and overwhelming” for very significant infractions.
As explained in Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30,  2 SCR 610, at para 38, a broad objective should be easier to defeat at later stages because it becomes harder to show that the means used are minimally impairing. However, a vague and broad objective of a scientific nature such as “containing the spread” of Covid-19 can dodge those consequences because it can appear both obviously important at the first stage, because a narrow understanding of this objective implies that massive death and suffering will result if the virus is not sufficiently contained, while at the same time making any and all measures seem minimally impairing since a broad understanding of this objective contains no limiting principle on how much the virus must be contained.
Objectives that are scientific in nature must have a reasonably discernible target for the “minimally impairing” stage of the analysis to assess whether other policy options could reasonably hit the same general target. Without a target, there is nothing to analyse. A court is left deciding whether the infringing measure will help fix the problem in some way, and the answer will nearly always be yes. When it comes to containing a virus, almost any measure that restricts movement and activities of people will arguably help in some way. Furthermore, without a sufficiently precise containment target, the court has no ability to meaningfully consider non-infringing alternative ways to hit that target. It can only conduct a single-factor analysis of what will happen with the restriction vs without.
The words “demonstrably justified” should mean something beyond just the question of whether a policy makes scientific sense or enjoys an acceptable level of scientific consensus. It should at the very least mean that the government has a clear objective that is reasonable and realistic. If the issue before us relates to casualties from a virus, the government should state a reasonably precise unacceptable casualty rate, explained with reference to other risks and casualty rates that Canadians currently tolerate or live with because of societal choices or other protected rights. Think for example of how many injuries, deaths and sexual assaults we could avoid if we outlawed alcohol and people had to take a breathalyzer test before they gathered indoors publicly, got in their car, went to work, etc. And drinking alcohol is not even a protected Charter right! Refined foods and the compendium of healthcare problems they cause would also need to be looked at. How much child trafficking could be reduced if we allowed the government to completely monitor all private communications? The Supreme Court of Canada has prevented employers from randomly drug testing employees (for obvious health and safety reasons) because this is viewed as an infringement to their right to privacy.[ii] There are innumerable serious public health problems that could be greatly alleviated with more stringent government measures in a host of areas that we as a society have decided to say no to.
No Justification Available for Saving Money
My last proposition is that courts need to be vigilant that that section 1 not be used by governments to save money. “Preserving the healthcare system” may be a legitimate short-term justification for emergency measures to meet a new emergency, but the long-term obvious solution to “preserving the healthcare system” can only ever be increased healthcare investment, whether from the public purse, from private capital, or both. A free and democratic society does not strip Canadians of their rights merely for the sake of public finance. As Lamer C.J. wrote in Schachter v. Canada,  2 S.C.R. 679, “budgetary considerations cannot be used to justify a violation under s. 1”.[iii] If a publicly funded healthcare system can only be maintained at the cost of fundamental rights and freedoms, perhaps other models will need to be looked at. At the very least, the government should be made to invoke the notwithstanding clause to start the national conversation. Courts must not be a vehicle for governments deceiving their citizens into thinking that giving up their rights is the only way.
Two years into this pandemic, there is a correlation beginning to emerge between the restrictions being put in place to contain the virus, and the funding of the healthcare systems of various regions. Countries and states with well-funded systems are decreasing their restrictions while those with strained systems are maintaining restrictions. This is also true among the various Canadian provinces. The healthcare system should work for Canadians and not the other way around. It will always be easier for governments to take away freedoms than it will be to administer and maintain a functioning and stable healthcare system that can adequately respond and adapt to the stresses of seasonal variants of a virus. This must not be allowed to become the status quo. It would be very troubling for courts to decide that the government has a “margin of appreciation” when deciding whether to invest more in the healthcare system or take away the rights of Canadians.
Canada is at a crossroads. Covid-19 has now been with us for nearly two years and is not showing signs of going away any time soon. With talk of it becoming seasonal in nature, it will be incumbent on courts deciding future challenges to government restrictions that they require a more rigorous justification from the government than what has been required to date. The current crop of recent decisions should be distinguished by the short-term nature of the restrictions the courts were there presented with and given little weight in future cases deciding the long-term and indefinite government restrictions we are now faced with.
Courts will in the future need to squarely address the seriousness of the infringement on Canadian society in general in light of historical freedoms Canadians have been accustomed to enjoying. To the extent the infringements are taking away broad swaths of Charter protected rights on an indefinite basis, the courts will need to require governments to provide clearer objectives behind their policies and apply a rigorous standard of proof showing that the policies in question are the only reasonable way to achieve reasonably precise targets. The targets will themselves need to be contextually defensible in the sense that they accord with the levels of risk and casualties Canadians already tolerate from other public health problems. Finally, courts will need to be skeptical of any claims that continued restrictions of fundamental rights are necessary to “preserve the healthcare system”. The more rigorous analysis being proposed here should be applied to examine both the indefinite continuation of current measures, as well as the implementation of new ones. With the very promise of Canada remaining a free and democratic society now at issue, the stakes have never been higher.
[i] Compare majority and dissenting reasons in Andrews v Law Society of British Columbia,  1 S.C.R. 143; and the discussion in RJR-MacDonald v Canada,  3 S.C.R. 199.
[ii] Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34.
[iii] see also Egan v. Canada,  2 S.C.R. 513, at para. 99; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island,  3 S.C.R. 3; Figueroa v. Canada (Attorney General),  1 SCR 912; and Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66.
[i] Gateway Bible Baptist Church et al. v. Manitoba et al, 2021 MBQB 219 [Gateway]; Beaudoin v British Columbia, 2021 BCSC 512 [Beaudoin]; Taylor v Newfoundland and Labrador, 2020 NLSC 125 [Taylor].
[ii] Peter W Hogg, “Interpreting the Charter of Rights: Generosity and Justifcation” 28 Osgoode Hall LJ 817 at 818.
[iii] Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37,  2 SCR 567.