Pandemic-era lockdowns and travel restrictions violated the freedoms of association, conscience, religion, mobility and peaceful assembly set forth in the Canadian Charter of Rights and Freedoms. Even today, despite acute under-staffing in health care, the British Columbia government still prevents many doctors and nurses from returning to work, solely because they legitimately exercised their right to bodily autonomy by refusing the COVID vaccine.
Governments have also disregarded the constitutional principle of democratic accountability. Our Constitution requires that prospective laws be debated, and come into force only after approval by a vote of elected representatives who are accountable to the people.
To a significant degree, members of Parliament and of provincial legislatures abandoned their constitutional power to make laws for the better part of three years. Legislators did not debate the restrictions that drove many Canadians into unemployment, poverty, isolation, loneliness, depression and despair. Instead, they empowered unelected health officials to speak new laws into force at news conferences.
A public health emergency should not be used as a pretext for suspending the legislature’s normal obligations and proceedings. To ensure that these egregious violations of Canada’s Constitution do not occur again, legislative reforms are needed.
Provincial and federal laws should be amended to require chief medical officers and health authorities to disclose to the public at all times the specific assumptions, data and sources used in their modelling and in the justification of their health orders.Declaring oneself to be the sole purveyor of science is contrary to science itself, because science is a process requiring transparency, humility and a willingness to seek the truth. It should not take a court action to obtain the actual information that governments rely on to justify restrictions on charter freedoms; this information should be available to the public in real time.The declaration of a public health emergency by the chief medical officer should be subjected to a free vote of the legislature, taken only after a thorough debate. The public health emergency should automatically expire 30 days after the vote, and be renewable for further 30-day periods by subsequent votes.Chief medical officers should appear weekly before an all-party committee of elected members of the legislature, to answer questions and provide documents and data as requested. If restrictions on charter freedoms are based on sound evidence, then those who propose or impose them have nothing to fear from radical transparency and accountability.Legislation should require the government to subject public health regulations and orders to an ongoing and comprehensive cost-benefit analysis. The government’s monthly reports should measure and explain the impact of public health measures on mental health (alcoholism, drug overdoses, spousal abuse, child abuse, suicide) and physical health (cancer, obesity, all-cause mortality).Other social and economic measures — such as unemployment, bankruptcies, homelessness and public debt — should similarly be accounted for. The government should also monitor the quality of care received by seniors in long-term care facilities, including their right to frequent in-person visits from loved ones.
The right of every individual to choose to receive or not receive medical treatments (including a vaccine) should be added to human rights legislation as a prohibited ground of discrimination.
Based on respect for the scientific method, legislation should require the colleges of physicians and surgeons to respect the right of all doctors to research, write and speak freely. Doctors should not have to fear any adverse consequences for expressing heterodox opinions. Further, the colleges should respect the doctor-patient relationship by neither compelling doctors to prescribe certain treatments, nor prohibiting them from proscribing others.
Legislation should also provide that, upon conclusion of a public health emergency, a public inquiry must review the government’s emergency-related policies, regulations and health orders, to determine what harms and what benefits resulted.Together, these legislative reforms will decrease the chance of Canadians suffering egregious violations of their charter rights and freedoms in the future, not to mention our right to have governments respect the constitutional principle of democratic accountability.
