Juno News - October 27, 2023
On C2C: How pandemic panic changed Canada forever
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Summary
In this episode of the podcast, I speak with Joanna Barron of the Canadian Constitution Foundation and Christine Van Gein of the Centre for Constitutional Rights about the government's attempt to ban vaccine mandates in Canada. We talk about why the government should be held accountable for what they did over the co-operation and co-ordination program (COVID) and why they should never do it again.
Transcript
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To get back to the COVID file here, I mentioned earlier on in the program the issues we were
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having with trying to have some level of accountability for what the federal government
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did over the COVID era. And I mentioned that bill that Pierre Polyev and the Conservatives
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have gotten behind Dean Allison's private member's bill. And this is a bill, Dean Allison just like
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retweeted me one second ago, so I didn't know if he was listening to the show. But he was retweeting
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me in my comment about what I was just about to bring up here. The liberals are displeased that
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anyone is trying to muck around on their record. We saw one tweet from Seamus O'Regan, which accused
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Pierre Polyev of wasting time. Pierre Polyev tabled a bill to ban vaccine mandates. Today we have to
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waste time debating it. Oh yes, heaven forbid you have to debate legislation and policy. That's
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what Polyev wants to talk about right now. Not affordability, not inflation, not housing, not
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what's happening in Europe or the Middle East vaccine mandates. Well, my comment to Mr. O'Regan
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was that perhaps he wouldn't need to waste time debating your government's egregious violation
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of civil liberties if you didn't egregiously violate people's civil liberties. And then Mark
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Gerritsen decided to weigh in with his own comment on this to the same sort of effect
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there. The anti-vax club. That's what Polyev is talking about right now. Not affordability,
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not inflation, not housing, not the war in Europe or the Middle East vaccine mandates.
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Did that sound similar to the other tweet? It's almost as though they just got like a fresh
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batch of talking points sent down the pipeline from the PMO and they're all just copying and
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pasting. Now, if Pierre Polyev were truly debating something irrelevant in the House of Commons,
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he would be debating Mark Gerritsen. But that is not what was happening. He was talking about
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vaccine mandates, which affected millions of Canadians and not only the individual people,
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but affected the core civil liberties and right to make individual medical choices that all Canadians
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enjoy. When you attack the freedoms of one Canadian, you attack the freedoms of all Canadians.
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And it is noteworthy that the liberals do not want any real scrutiny of their record. That they
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don't want to rehash this. That you see the government so fervently telling everyone when
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there are court cases up that, oh, we need to dismiss this. It's moot. We can't talk about this.
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We don't need this. Because they don't actually want people going back to that three-year period of
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2020 to 2023, really. And seeing the extent to which these policies did break the law, did violate
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people's rights. They don't actually want to have that discussion. And it's kind of interesting. There
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was that call from, I believe Emily Oster is her name, a writer last year for Pandemic Amnesty, which
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was basically, yeah, we all said some things. We all did some things. You know, it sucks, but it was a
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difficult time. Let's all just move on. Let's just, you know, let bygones be bygones. And it's a lot
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easier for the people who were responsible for some of the violations of people's rights to call
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for Pandemic Amnesty. It's, in fact, it's very similar to Hamas attacking Israel and then calling
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for a ceasefire. As if to say, okay, we hit you. Now we just want to stop. We just want to get rid of
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this all. But that's kind of what's happening here. The people that are calling for us to move on and
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never look at this again are the people that were very directly involved in the reasons we should
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look into this period. Joanna Barron is the executive director of the Canadian Constitution
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Foundation. Her colleague, Christine Van Gein, is the CCF's litigation director. The two have a
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fascinating piece in C2C Journal about this and an even more fascinating book that is coming out in
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the next few days here called Pandemic Panic. How Canadian government responses to COVID-19 changed
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civil liberties forever. They don't want to move on from this without a deep dive into all that went
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wrong and perhaps setting out a roadmap for how to avoid this in the future. Christine and Joanna,
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wonderful to talk to you. Thanks so much for coming on today. Thanks for having us on. I mentioned a
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couple of moments ago in court cases where these restrictions are coming up, we're often hearing
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from the government's lawyers, these appeals to mootness. It was kind of this just little moment. It
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was almost like the twilight zone. It's not really where we are now. So there's no point in dealing
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with this. They've had some success on that, notably in the travel vaccine mandate case, although it
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stands to reason what's happening with the federal court of appeal there. But let me just ask you on
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that. Why is it important to not just let this era be put in a box and stowed away on some back
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shelf? Well, I don't think that you've seen in recent memory an extraordinary, you know, areas of
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life, just an extraordinary array of areas of life that we never imagined the government could start
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regulating in. Health, our social lives, our religious lives, our expressive lives, pretty much
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you name it. And if we can't go and see how our judiciary, how our politicians even, because
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politicians ideally should use the charter as a sort of guardrails for their behaviour. If we can't have
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an honest accounting of how we fared at this stress test, we are certain to see other public health
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emergencies, pandemics, who knows what other nature of thing in the future that will affect all of those
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domains of life. And we're doomed to repeat it. So as you rightly noted, we opened this book by being
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sort of against the pandemic amnesty. Nope, we can't have amnesia about all these things that
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happened. I'll ask you about this, Christine, as well, because one of the challenges here is that
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there's a legal aspect. And I know you're approaching this book as two lawyers, and a lot of your advocacy
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on these issues has been through the legal lens. There's also the political aspect and the cultural
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and the media aspect. And I'm curious how much you think this is really a legal question versus a
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political question. Well, it's a legal question, because a lot of these issues were addressed by
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the courts. But I think there's also a political question as well, and also a cultural one. And one
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of the things that we noticed in writing this book was how the culture around civil liberties seems to
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have shifted really dramatically. I think that there became this pendulum swing towards expediency and
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towards deference among the members of the public to government decisions that didn't quite exist
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before. I think we were more skeptical of state power before the pandemic. And during the pandemic,
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it seemed like there was only one way that you could think about government restrictions. And it was to
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wholeheartedly celebrate them, even when they violated some of our most fundamental tenets of our
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constitution. And these things are all interconnected, right? The politics, the culture, and the court
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decisions that come out of it, and it kind of operates in a cycle. And now we have a number of
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pretty terrible precedents legally, where courts evaded judicial scrutiny of rights violations through
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procedural reasons. Mootness is one example that you gave, and we dealt with mootness a lot.
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Another example is standing. There were cases where cases were dismissed for lack of standing. And
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the really important and novel questions about our rights in the context of a unprecedented crisis
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were never resolved. And if we don't resolve those issues from the courts, we don't have good precedent
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to protect ourselves against intrusions in the future. We don't have everything resolved, right? We're
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still waiting for some decisions. We had to put the book out at some point. I actually just received
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my copy this afternoon. I was happy to see your endorsement on the back there, Andrew.
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Oh, I'm happy it made it to it. I'm glad it was useful.
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But yeah, not everything is resolved. In particular, we're waiting for the result in the Emergencies Act
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Invocation Judicial Review, which we had brought. And we're expecting that maybe in the next few
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months. Let me actually ask you, I'll start with you, Joanna, but if you want to bring in your own
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perspective, Christine, please do, about the Emergencies Act. Because some of the government's
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arguments on trying to dismiss these challenges have been insane. And one of them, I'm crudely
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paraphrasing here, is basically, well, this was a once in a lifetime fact pattern. So therefore,
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you know, there's no point in really, you know, having it out, because the next time the Emergencies
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Act is brought in, it's going to be under different circumstances. And that's a really dangerous
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argument, because every case has its own unique facts. And the point of precedent is not that you have
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a one size fits all solution, but certainly you start defining this. So the fact that this never
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before used legislation, the Emergencies Act came in, we've never had judicial guidance on how to use
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it. And the government doesn't want that is incredibly concerning. Have I misrepresented anything
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there, Joanna? No, certainly not. And I would add that in addition to the government pointing to
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the so-called unprecedented nature of the Freedom Convoy, as you say, it's not clear to me that there
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couldn't be some other type of emergency. We have climate issues, we have global security issues,
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the world is a dynamic and changing place. But the important thing to add, even beyond speculation,
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is that at the hearings, both at the Public Order Emergency Commission hearings, as well as the
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judicial review hearings, the government very specifically and very stridently, I would say,
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pushed an interpretation of the application for the Emergencies Act, which would give them very wide
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ambit to act. So specifically in the Emergencies Act, which defines threats to the security of Canada
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in a way that's linked to the CSIS Act, and that thus, you know, relies on a CSIS assessment,
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an independent assessment, specifically to avoid concentrating too much power in the hands of the
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executive. We heard the Prime Minister himself directly say that his interpretation, his government's
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interpretation of that was that he could declare a state of emergency throughout Canada based on his
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understanding of threats to the security of Canada as the governor and counsel, independent from any
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external threat assessment. And at both hearings, he declined to provide any type of legal brief,
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legal memo, let alone external threat assessment, which we know from the testimony of Jody Thomas,
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was never provided. So actually, if that standard rules the day, Justice Rouleau seemed to accept that.
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And we know that the federal government, which is going to be bringing forward proposals for amendments,
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the Emergencies Act, they're going to seek to separate out the CSIS Act definition so that basically,
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the Prime Minister can decide when an emergency exists, that would make it even more common that
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something like the Emergencies Act could be invoked again. And perhaps Christine will talk a little bit
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about what that actually meant throughout all of Canada, not just Ottawa.
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Yeah, it is important to remember that when the Emergencies Act was invoked, it wasn't geographically
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limited. The Prime Minister had said, this is short, this is limited and temporary, but it was not
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limited. It applied across the country, even though by the time it was invoked, the protests were only
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taking place in Ottawa. Literally, quite literally, as the Emergencies Act was being invoked,
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the police were in the process of clearing the border blockades at Coutts and the blockades at the
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other border locations had already been cleared. I think one of the interesting things that
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the book does, though, is it looks at this from an approach of constitutionalism and places a premium on
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the values of the rule of law. And look, we're not here to cheerlead the convoy. I think that the convoy
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accomplished the political goals that it set out to accomplish. But certainly there were aspects of that
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protest that were illegal. And we have a whole chapter in the book about the rule of law and the value of the
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rule of law. And we hold the federal government to the standard of the rule of law. They can't invoke
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legislation when the legal threshold to invoke is not met. They don't have this extraordinary power
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unless they're authorized by law. But on the same hand, we need to hold members of the public who
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participated in the convoy to the standards of the rule of law as well. And certainly there were
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illegal acts that took place. People should face criminal charges related to those criminal acts.
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And certainly a protest cannot go on indefinitely. By the end, the police were certainly entitled to
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exercise ordinary police powers to move large vehicles off of streets, not to permanently block
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a protest from proceeding. I think there's no question you can protest on the lawn of Parliament Hill,
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but you certainly can't indefinitely block Ontario highways. There's provisions of the criminal code
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that address that though. And there was no need to resort to the use of the Emergencies Act. So I think
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that that's one of the things that is going to challenge readers in our book is whatever your
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perspective on this, on all of these issues, on COVID, on the Emergencies Act, I think you need to be
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prepared to have that perspective challenged because these things are not straightforward. Whatever the
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mainstream media might say, this is not a black and white issue. These issues are complex. And that's
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why we required an entire book that took us years to write to go through all of this. So I encourage
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anyone who reads the book to read it with a very open mind because we really have spent a lot of time
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trying to get the balance right on all of these issues. Well, one of the things that you have both done
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in this, which I was very grateful for is you've gone right back to the beginning because I think
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when the convoy and the Emergencies Act came in, we're talking about now more than two years after
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the onset of some of the earlier COVID restrictions and some of those early stories that almost sounded
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quaint in comparison of like, you know, oh, some kid, you know, given a citation for using a public
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basketball court. Or I remember there was one in Hamilton where a drug dealer was arrested for
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operating a non-essential business, as well as for dealing drugs, like some of these things,
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which almost became novelties. But the reason they did is because the government response to COVID
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got more and more severe. At that point, we didn't know we'd be looking at church closures, pastors in
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jail, family gatherings being in some cases, you know, raided by police. And all of these things,
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you know, are too large to just say we can't look into. And I'm curious what your thoughts are on
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on the procedural aspects here, because I know there have been a lot of these charges that were
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issued that have just been dropped because of judicial resourcing, you know, it's we don't
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have enough time to go through three years of fines, courts are backed up. The problem with that,
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of course, is that no one has had their day in court, the arguments and the precedents haven't
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been made, but for the individual people charged it to win. So how do you reconcile those two?
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I think we had one case that was like that week that we talked about in the book, and it relates to
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an individual protester in Kingston. And you're so right, it's so quaint when you think back to it,
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it's also surreal. So the facts of some of these stories, you know, like roping off the cherry
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blossoms. So one of the stories we talked about in this book is a case that we were working on at the
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Canadian Constitution Foundation, it involved a man named Robert, who was frustrated as a gym user and
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a supporter of small business, a lot of his friends ran small businesses, he was frustrated with
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these sort of never ending lockdowns, I think we were on our third or fourth lockdown in Ontario.
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And he decided to go and protest, he wore a mask, and he went by himself, he wanted to start his own
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protest to say and the lockdowns. And he was charged under I think it was at the time that the the stay
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at home order. And I mean, the idea that someone protesting or standing outside alone with a mask
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expressing a political view poses some type of public health threat. It's just absurd. And so
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we wanted to use this as an opportunity to challenge the broader lockdown provisions. But
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I mean, in the best interest of Robert, the charges were dropped. So obviously, that's the route that we
00:17:06.820
need to proceed with. But the result of it procedurally is that you don't get a precedent, you don't get to
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challenge the broader, the broader law, which is really what the problem is here.
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Well, and you've also done something really interesting, Joanna, instead of organizing it
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chronologically, which I think probably would have been my instinct as a writer, you've gone by
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basically sections of the charter and by individual rights and freedoms from, you know, freedom of
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assembly to, to freedom of movement, freedom of expression, all of these things. And, you know, I think
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it's easy to just look in general in the abstract or in the, you know, amalgam and say, you know, rights were
00:17:43.380
violated. But when you go through and point specifically to how and which rights, it's a very
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powerful case. And let me ask you just on religion alone, because, you know, the government's defense of
00:17:53.860
its restrictions on worship ceremonies and services was that, well, you know, you have the right to, you know,
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be a Christian, you have the right to be a Jew, you have the right to be a Muslim, but, you know, this is just
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extraordinary times. But for people of faith, that is the government telling them how their
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religion must be practiced. I mean, you look at with Judaism, which has very specific guidelines
00:18:15.620
on the number of people that need to be a part of prayer. Government was saying its edicts matter
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more than these things that we supposedly have a right to define ourselves. Yeah, absolutely. And we
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talk about in the book that, so for example, because of these, you know, unprecedented restrictions,
00:18:32.820
it brought out some of the frailties in the law itself. So for example, freedom of subjective
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belief is extremely strongly protected in Canadian law, but freedom of assembly has much weaker
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protection. And most of its protections are in the context of like labor union strikes and things like
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that. And so it was quite jarring to religious, you know, religious Canadians that the government had
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gave such short shrift to the value of in-person worship. I was actually at a conference in the UK this
00:19:02.020
past summer, and I was told that in London or in England at some point, gathering limits were set
00:19:08.100
at five people, at least in Ontario, they were set to 10 people, perhaps in consultation with the Jewish
00:19:13.460
community that would have let them know the minimum amount of people needed for a minion. Having that
00:19:18.980
that aside, there are churches in Canada that are important community hubs, particularly for new
00:19:25.300
Canadians, which elderly Canadians rely on, because, you know, participating by zoom isn't an option for
00:19:32.580
them. And you really saw that the government was just happy to say, well, you can just log on to zoom. And you
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know, and you know, there's no violation to your religious freedom, the government actually contended in most
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cases, and was countenanced by judges in many cases, that these strict restriction and gathering limits didn't even
00:19:52.980
engage the right to freedom of religion. And you can read about some of those some of those faith
00:19:57.860
communities in the book. Yeah, and I would also point out, I mean, at the early days, there was a much
00:20:04.820
different attitude. Like I remember when the Ontario government was actually taking a bit of a bit of
00:20:09.780
guidance from the Church of God in Elmer, which was the first one to really try to make drive-in services
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a thing. And then you fast forward a few months, and you know, the government's having the doors locked,
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and putting millions of dollars of fines down. And had people at least hiding in the bushes,
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observing the congregants. Yeah, and I actually had, there was one report that was handed over
00:20:30.660
in Discovery, in which I was named as a person of interest in the police's investigation of that,
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because I had interviewed the pastor, and they were suspicious that I might attend the service. So
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they had like, preemptively put me on this on the person of interest list, which was quite an honor,
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I had never had that before. I would have preferred it to be about something I did,
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rather than something someone thought I might have done. But that's the insanity here. And I
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wanted to bring up another dimension of this, that I had almost forgotten, and it was seeing you cite me,
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that I remembered this, when the government of Ontario had tried to give police the power
00:21:06.980
to stop and question anyone who was outside their home about what they were doing. And, you know,
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very gratefully, every police department in Ontario, except for the OPP, I think, in the next couple
00:21:18.900
days said, we're not going to do this. But like, that would have seemed insane, if you had said in
00:21:23.860
2019, that that was at all something that government would direct the police to do in a province.
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Yeah, you did some really great reporting on that. That's, I think you were, you were the person who
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was literally, quite literally counting which police... Well, like cold calling them all. I spent my weekend doing that. Yeah.
00:21:40.900
But great, great work, Andrew. And it's very valuable. And it's very important that we have
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a record of that. The reality is that police are the ones who need to interact with the community.
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And, you know, I'm generally skeptical of police power, but I know police as well. And I know that,
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for the most part, police want to have a good relationship with their community and have worked
00:22:04.900
hard to develop a relationship of trust with the communities where they are policing. And they are
00:22:11.220
not interested, generally, in stopping mothers taking their children on a walk to a playground,
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which is what that stay-at-home order was going to do, combined with that police authority to stop people.
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And I'll point out that this police power to stop people and demand they identify themselves and
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explain why they're outside their house. It's very similar to a policy that was controversial
00:22:38.660
in Ontario called carding, because carding had resulted in a lot of police interactions with
00:22:45.860
racialized communities, in particular, who are generally over-policed. And the government created a
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policy that they would no longer engage in carding. And there were constitutional concerns around that
00:22:58.980
policy. And in fact, when, and it is so similar to what was announced and what was announced during
00:23:06.100
the pandemic was actually more extreme than the carding policy, that everyone sitting at that cabinet
00:23:12.820
table would have known how similar this is to carding. And in fact, we know from reporting from,
00:23:19.220
it was from the CBC, they found, they had spoken to someone who disclosed that in cabinet, the attorney
00:23:27.220
general, the provincial attorney general had warned cabinet that this policy is likely unconstitutional.
00:23:33.860
And cabinet and, and the premier Ford proceeded to enact it anyway. And I think that there's real
00:23:39.780
concern that there's bad faith there. The bad faith is that they knowingly enacted an unconstitutional
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law. And they did it because they wanted some short term gain. And they knew that any judicial
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oversight over that would not be heard in time before this temporary measure had been repealed. And
00:24:01.540
they would avoid any judicial scrutiny. And I think that that's bad faith. And it's very, very
00:24:07.220
concerning. I mean, there's some relief that the police said we will not enforce this, but it shouldn't
00:24:11.940
just lay with the police to say we won't be enforcing unconstitutional laws.
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I'll go back to you, Joanna, just as we wind down here, because the subtitle of the book,
00:24:23.460
How Canadian Government Responses to COVID-19 Changed Civil Liberties Forever is a lofty one.
00:24:28.820
And I know in your conclusion, you actually are rather forward looking about this, but I'll ask with a bit
00:24:35.780
of trepidation, because I don't want to know the answer as I think I know the answer. Do you think these
00:24:41.380
changes have been for the better or for the worse? And I'll just, you know, add a bit of an asterisk
00:24:47.060
there when, you know, all of the legal procedures have been exhausted, we have the definitive ruling,
00:24:52.260
do you think that we will end up with fundamentally a less free country than we had going into COVID?
00:24:59.380
I think we have a legal system that has shown how effectively it can obfuscate answering the question
00:25:05.300
with the declarations of mootness, with the deference to government evidence.
00:25:12.420
We were talking to another interviewer who found it remarkable that a lot of these issues weren't dealt with
00:25:18.180
under Section 1. So yes, we can acknowledge there was a rights violation, but maybe under Section 1,
00:25:23.140
which is the justification clause, maybe you can say in public health emergencies, it was justified,
00:25:29.780
but at least to acknowledge for the record that these were rights violations. So we really have
00:25:35.700
seen all of the ways that judges were able to wiggle out of telling the truth. Now I will sort of
00:25:42.020
conclude my remarks on a more optimistic note, which maybe I'm a little bit more of an optimist than
00:25:47.060
Christine. I think it depends on us. I think it depends on the culture that we build. I think it
00:25:52.100
depends on our collective understanding and our collective assessment of whether this was good enough,
00:25:58.580
whether we think that if we have charter rights, which were agreed to democratically, whether they
00:26:04.340
should mean something. And if we understand the sort of fiasco that happened and we'll hold future
00:26:09.940
governments accountable, just out of sort of shock of how abysmally our culture during the last pandemic
00:26:18.420
failed. I think that there could be hope, but it starts with looking in a sober way at how we actually
00:26:26.260
failed. If I knew that you were the optimist of the two, I probably would have reversed this. So we
00:26:30.820
get to end on Christine's dour note, but Christine, or maybe you do have a less dour note, but I'll give
00:26:35.940
you the last word on this. What's the forward looking takeaway you have after writing this?
00:26:40.180
I'm pessimistic. I think not only did the courts do a terrible job protecting our rights, I think people
00:26:46.500
have just shoved that memory away and forgotten it. And I think that I'm very concerned about whatever the
00:26:52.660
next crisis is, we've now broken the glass on the emergencies act, it could be used again in the
00:26:57.860
future, that our culture of civil liberties has been permanently damaged, because we've seen how
00:27:03.700
easily people have come to justify huge intrusions into their rights. I think that we're in a very dark
00:27:09.940
time politically in our discourse where disagreement is not tolerated at all. I'm completely pessimistic,
00:27:19.620
and I'm very dark. I'm in a very dark place, Andrew. But you know, that's why you definitely
00:27:26.020
should have ended with Joanna, but yeah. Well, I'll say this to try to put a somewhat
00:27:31.700
optimistic flavour on it, is that you have to diagnose a problem to fix a problem. So even taking
00:27:37.140
the approach that you have, Christine, and that both of you have through this book, I think is
00:27:40.420
essential to rectifying it, because there is, in a lot of cases, a political response available.
00:27:45.700
And I, you know, I was mentioning earlier, the private members bill in the House of Commons today,
00:27:49.860
again, may or may not pass. But you know, if you have a change in government, and the government
00:27:54.260
is saying, you know, this should never happen, I will not do this, we could perhaps try to normalise
00:27:59.540
civil liberties again. But I realise the courts will always remain a bit of a wildcard there.
00:28:04.740
Nonetheless, it is an incredibly, incredibly important book, I was very honoured to be able to
00:28:09.860
write a small blurb for you, and even more honoured that some of my work helped you put it together.
00:28:14.660
It's called Pandemic Panic, How Canadian Government Responses to COVID-19
00:28:19.140
Changed Civil Liberties Forever. It's by Joanna Barron and Christine Van Gein,
00:28:23.540
and you can also read a bit of their work in C2C Journal this month as well,
00:28:27.620
to get a bit of a sense of what the book holds. Joanna, Christine, thank you so much,
00:28:31.300
and well done with this. Thank you, Andrew. And the book's available on Amazon right now,
00:28:35.380
for anyone interested. All right, wonderful. Yes, do head over there. And last time we had an author on,
00:28:39.940
it, like, spiked up in the numbers. So I'm hoping we can replicate that here. Go to Amazon
00:28:44.020
and check it out. Joanna, Christine, thanks very much. Thanks for listening to The Andrew Lawton Show.
00:28:49.060
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