So there has been lots of debate on the constitutionality of government lockdown measures and I think I need to make one thing clear. These measures are a very obvious and demonstrable violation of your Charter Rights and Freedoms. When making the argument for measure like we are seeing right now it is not a question of whether or not they violate your rights, the question is whether or not the violation of your rights is justified under the constitution.
To start let’s have a look at where our rights and freedoms are currently being violated. For the record, all of this information came from government sources. You can look it up for yourself here.
The Right to Freedom of Religion
The purpose of Freedom of Religion is to prevent interference with profoundly held personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being.
Freedom of religion has been defined as “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practise or by teaching and dissemination
Recognizing the linkages between religious belief and its manifestation through “communal institutions and traditions”, the Courts have determined that “measures that undermine the character of lawful religious institutions and disrupt the vitality of religious communities represent a profound interference with religious freedom.
In my opinion, the charter essentially states that almost any impedance on a citizen’s ability to practice their religion is a violation of The Charter of Rights and Freedoms. Government has been interfering with religious freedoms since day one of this pandemic, the simple act of reducing or prohibiting attendance in churches could be considered government action that prevents citizens from practicing their faith. The most recent violation of this charter right would be relating to pastor James Coates who not only was imprisoned for practicing his faith in violation of public health orders but also had a fence put up around his church by the province of Alberta to prevent communal worship.
The Right to Peaceful Assembly
includes the right to participate in peaceful demonstrations, protests, parades, meetings, picketing and other assemblies. Other assemblies literally means any peaceful gathering for any reason whatsoever.
Telling you who you can and cannot have in your home and who you can and cannot associate with is the ultimate violation of your right to peaceful assembly. If you cannot play a board-game with friends on a Friday night, or get arrested for a game of pond hockey with your friends because of government action then consider this right thoroughly violated.
The right to Life, Liberty and Security of the Person
The right to life is engaged where the law or state action imposes death or an increased risk of death, either directly or indirectly. I would refer you to the dramatic increase in suicide rates for those between the ages of 10 and 14. Suicide has become the leading cause of death for that age group.
There is also the massive increase in opioid overdoses. In Alberta alone opioid related deaths doubled from ~600 in 2019 to almost 1200 in 2020. Government interference in Canadians lives is quite clearly increasing the risk of death of Canadians.
The Right to Liberty is violated when state compulsions or prohibitions affect one's ability to move freely. Again, not allowing you to see who you want when you want is a very clear violation of this right.
The Right to Security of the Person is violated when the state impedes on a person’s right to control his/her own bodily integrity. It is engaged where the state interferes with personal autonomy and a person's ability to control his or her own physical or psychological integrity.
Security of the person is also engaged where state action has the likely effect of seriously impairing a person’s physical or mental health, also known as “Psychological Security of the person”. To constitute a breach of one's psychological security of the person, the impugned action must have a serious and profound effect on the person’s psychological integrity and the harm must result from the state action and only needs to be greater than ordinary stress or anxiety.
The complete deprivation of one’s livelihood is also considered a violation of your right to psychological security. Funny thing, right?
Specifically in regards to psychological security of the person, the government has created a mental health crisis. Gyms are closed, sports are shut down, pretty much any social interaction you could have is banned which has a severe impact on the mentally unhealthy. Government action has prompted the failure of hundreds of thousands of businesses, and has deprived millions from earning a living and providing for their families.
Imagine the elderly living without human touch or affection. How about those who have lost loved ones and not been able to be present, or the fact that people are dying alone with their families on facetime. Do you think this upholds their right to psychological security of the person? I would say definitely not.
A psychological detention occurs where a person is legally required to comply with a direction or demand or where, in the absence of such a direction, state conduct would lead a reasonable person to conclude that he or she had no choice but to comply. So the question becomes, is what we are experiencing considered psychological detention? I’d have to say yes. Stay at home orders are an arbitrary psychological detention which are an obvious and direct violation of your charter rights.
When we look at physical detention, any law compelling the automatic detention of individuals on the basis of the danger they present to society will be arbitrary if there are no criteria or standards in place to determine if they are in fact dangerous.
Think about people being taken away in white vans and forcefully confined to hotel rooms with disgusting meals and rules against locking doors for getting “the wrong COVID test”. There’s no evidence they’re a risk, in fact tests have determined they don’t have the virus yet they are being arbitrarily detained by the government. Again, another clear and obvious violation of their charter rights.
When can the government violate your charter rights?
Now to the fun part, there are provisions in the constitution to allow for a government to violate your rights and freedoms as long as the violations meet some specific criteria. Some of this criteria is outlined in section 1 of the charter titled “Reasonable Limits”
Of very specific interest to me in this section of the charter is The Oakes Test. The Oakes Test presents specific criteria for the courts to consider when a government moves to violate the Charter Rights of Canadians.
The Oakes test
A limit on a Charter right must be “reasonable” and “demonstrably justified.” The first area that current government action fails this test is under Minimal Impairment: the limit must impair the right or freedom no more than is reasonably necessary to accomplish the objective. The government will be required to show that there are no less rights-impairing means of achieving the objective “in a real and substantial manner."
This means the government would have to demonstrate that the violation of our charter rights is justified due to the fact that there is no other more effective, less invasive means to achieve the same objective. Essentially the government would need to build the case that this extremely destructive strategy of lockdowns, isolations and business closure is the only way to fight COVID.
Then we have Final Balancing: there must be proportionality between the deleterious and salutary effects of the law. The negative effects must be balanced with the positive impact the violation causes.
This portion means that the measures taken must benefit society equally as much as they are destructive. We don’t know this yet, we don’t fully understand the impacts of these measures but I would dare say there is a strong case that these measures do a significant amount more harm than they do good.
Section 33, the notwithstanding clause
Now there will be a whole bunch of Canadians who so desperately want their rights violated that they will justify government actions without due process. Many of them refer to Section 33 of the Charter, the notwithstanding clause.
Now, while this section of the charter does allow the government to arbitrarily restrict rights, if it is enacted it means the government is going directly against findings by the courts that violations of your rights are not justified, or bypassing the courts altogether to oppress Canadians.
If section 33 is enacted politicians are essentially saying screw the findings of the courts and the text of the Charter, we’re violating your rights anyways. If we reach the point section 33 is enacted the government has demonstrated their intent to go full authoritarian and bypass both the constitution and the findings of the courts to unjustifiably violate the rights and freedoms of Canadians. This would be political suicide, which is likely why it has only ever been enacted briefly once.
There you have it, my guide to the ongoing violations of your charter rights and freedoms. I would dare say that my very good friends at the Justice Centre for Constitutional Freedoms would likely add a great deal more to this list. This is simply the perspective of this Albertan Hillbilly.
Read up, get educated and stand up for your rights because at the end of the day, nobody else will.