Ongoing limitations on rights need to be supportable in an ongoing way - The Orca

Ongoing limitations on rights need to be supportable in an ongoing way

Suzanne Anton

At the Supreme Court, the province argues public health orders come from Dr. Bonnie Henry alone – but was surprised when asked for an affidavit with supporting evidence from her.

Rights are more important than ever when times are tough – that was the main thrust of my previous Orca piece,

Our rights as Canadians, guaranteed by the Charter of Rights, are significantly impacted by the pandemic. Limitations on those rights may be fine – or more to the point, legal – but they must bereasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

When government orders are challenged, “demonstrably justified” are the operative words. That means the order must be backed by actual evidence, and continuing orders must be backed by evidence which is also continuing.

British Columbians are living under a comprehensive set of public health orders first made in November, then extended for two-week periods, then a month, and now indefinitely.

The indefinite extension from early February was made without much (if any) additional supporting evidence. That evidence may well exist – nobody is suggesting the pandemic has abated – but the requirement is clear: limiting basic Charter rights must be demonstrably justified. As in, clearly demonstrated to the public. Because of the lack of demonstrable public evidence, it is my view that the extended order is of dubious legal status, but it takes a court challenge to establish that.

Which brings us to the ban on in-person church services.

Current public health restrictions implicitly state that malls, salons, bars and restaurants can accommodate the public with COVID plans, but not religious institutions. It seemed inevitable that the matter would be brought before the court, as a group of Fraser Valley churches have now done.

The case is being heard by the Chief Justice of the Supreme Court, Mr Justice Hinkson. He has now heard three days of evidence, and, as reported by the Vancouver Sun, has put forward some interesting questions.

The province seems to be arguing that the orders are Dr. Henry’s alone. The orders are made under her name, and it’s true that she’s charged with conducting herself independently.

But inescapably, Dr. Henry is a cabinet appointee, and invariably appears with Minister Dix. It is not a challenge to her independence to point out the obvious: she is also part of the government team and works closely with the Minister and other colleagues in the provincial government – as she should. The continuing public health orders are made and extended with the full knowledge and agreement of the province – and of course, enforced by the province as well.

But if the province is making the argument that the orders are Dr Henry’s alone, it should not have come as a surprise that the Justice would ask for a supporting affidavit from Dr Henry.

You can hardly argue that an order should be upheld with no evidence from the person making the order.

The government also appears to be arguing that the order was valid when made – but that’s not the issue. Was it still defensible when indefinitely extended? Is it still defensible now?

Ongoing limitations on liberties need to be defensible in an ongoing way.

Pubs and restaurants, but not churches? I suspect the breaches of the Charter rights of freedom of religion and association by the ban on in-person services will be ruled unconstitutional.

That is, of course, the question for the Court.

The whole country is watching.

Hon. Suzanne Anton QC is a former Minister of Justice and Attorney General of British Columbia and a former Vancouver City Councillor