Challenging Manitoba’s pandemic gathering restrictions in court showed me how groupthink can go awry

The judicial branch seems unwilling to stop the most significant attack on Canadian civil liberties

Jared Brown

“However, like times of war and other crises, pandemics call for sacrifices to save lives and avoid broad-based suffering. If some are unwilling to make such sacrifices and engage in behaviour that poses a demonstrated risk to the health and safety of others, the principles of fundamental justice will not prevent the state from performing its essential function of protecting its citizens from risk.”

These are the words of Chief Justice Crampton of the Federal Court in Spencer et al. v. Canada, the 2021 “Federal Quarantine Hotel” case.

We are in the midst of the most significant attack on civil liberties in Canadian history. Yet, the judicial branch continues to give their blessing to all manner of government restrictions because they say we are in a war and we must force everyone to sacrifice in service of the state.

During the first two weeks of May, I had the opportunity to appear virtually before Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench in an application challenging the constitutionality of public health orders enacted by Manitoba’s chief officer of public health, Dr. Brent Roussin, in response to the SARS-COV2 virus and COVID-19 disease.

I was there to assist the Justice Centre for Constitutional Freedoms, a hard-working and dedicated group of pro-liberty truth seekers from across the political spectrum representing the challengers: churches, faith-based leaders, and an individual protestor. The applicants challenged the government’s prohibitions against gatherings, whether for church, peaceful protest, or family and social gatherings in their own homes.

My generation has been lucky. We have never lived through a war, at least not one that threatened us close to home, not one that felt like the country’s existence was at risk, in the same way, that the world wars must have done. But the case in Manitoba gave me just a slight taste of what wartime life might have been like, in all the bad ways. When people think of the home front at wartime, they think of rallying together, pitching in, and enduring hardship for a greater purpose. What gets less airtime is the bad stuff: government propaganda, petty autocrats who suddenly have more power than they dreamed, pressure to conform and adopt the dominant wartime narrative, and the desire to forgive the government for all transgressions and mistakes.

The case in Manitoba felt like a wartime case without the war. The applicants were up against the full power of the province of Manitoba, government-funded legacy media, and a big government narrative: a particular way of explaining and understanding the events of the COVID-19 pandemic that emphasizes the role of government policy and institutions.

The hearing took place against a backdrop of escalating restrictions across Canada and Manitoba in response to yet another “wave” and fears of the onslaught of new “variants of concern.” Indeed, supplementary materials delivered by Manitoba on the eve of the hearing attempted to stoke these new fears.

Since SARS-COV2 arrived in Canada, governments have positioned their public health policies as defences against an attacking foe (“We are all in this together”). At the same time, the legacy media’s wartime stance serves to prop up and promote government talking points and policies.

The political backdrop to the hearing also reflected the consensus typical of wartime: Sacrifice is necessary. Unprecedented restrictions on the populace are virtuous and to be supported by all to fight the foreign invader. Alternative perspectives should be censored and vilified. All the major political parties support the main thrust and approach of the government’s public health policies, with only minor quibbling that the measures ought to have been implemented faster, be broader in scope, and the usual partisan barbs over wartime profiteering. Into this “wartime” climate of fear, the elite institutions of power — the legacy media, political parties, the bureaucracy, academia, the courts, and even traditional civil liberties activists — have all fallen in line to support government and to shield it from criticism.

Bringing a Charter challenge in this “wartime” climate is a longshot indeed.

While Manitoba conceded that the challenged restrictions contravened the Canadian Charter of Rights and Freedoms, it sought to justify those infringements as “demonstrably justified” in a free and democratic society. Section 1 of the Charter places the onus on government to justify — with compelling evidence in court — any violation of a Charter freedom. The citizen does not have an onus once the violation is conceded.

The evidence at the hearing focused on the science around Manitoba’s response to SARS-COV2 and whether the science justified the measures and the resulting harm to our free and democratic society. But during the hearing, the s. 1 onus almost seemed to shift from Manitoba having to justify the challenged restrictions onto the applicants to prove that they weren’t justified.

Crown counsel stated in closing that the court should not construe the hearing as a public inquiry into the government’s COVID-19 response. This argument was unnecessary since limited media reporting on the proceedings to the public reflected the wartime narrative of deference and support of government action.

The chief justice reserved his decision, with a ruling to follow in the weeks or months ahead.

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