A group of lawyers have entered the fray against Covid-19 restrictions, issuing a document with the ringing title, “Free North Declaration” (“Declaration”) (see here for the version dated November 23, 2021). A strident endorsement of individual freedom, the document picks up on the canards that have permeated the debate over these many months.
By identifying themselves as “Canadian lawyers”, one assumes the originators of the Declaration seek to give it a veneer of authority that many protests against the various Covid-related restrictions governments have imposed lack. Here I explore the document, identifying what in my own view are legitimate concerns and what are generalizations that hide the more nuanced reality.
Using the term “Declaration”, the authors may also be seeking to conjure up those historical documents that have played a major role in their country’s history, such as: The Declaration of Independence (1776); Declaration of the Rights of Man and of Citizen (1789); Declaration of the Rights of Woman and of the [Female] Citizen (1791) (whose author Olympe de Gouges was executed in 1793); Universal Declaration of Human Rights (1948); and WMA Declaration of Helsinki (1964) (Ethical Principles for Medical Research Involving Human Subjects).
So, an ambitious document, indeed.
I SHARE CONCERNS ABOUT OVERWEENING GOVERNMENT: MY PREVIOUS POSTS ON THE PANDEMIC
Before reviewing the Declaration, let me say that I have previously suggested in Slaw posts that the measures governments have taken and the processes used to implement them have at times run the risk of overstepping the protections law provides us and of breaching the social contract between the state and its residents. Here are some examples:
In this post, I wrote about the courts’ decisions to close and the importance of having a way of challenging government action when necessary. As the Ontario Superior Court stated, “The Court plays a fundamental role in our constitutional democracy. Access to justice for the most urgent matters must always remain available.”
For those who have forgotten the detail about these early days, this post provides an overview of various measures across the country, including the restrictions, the high fines for failing to abide by them, as well as more detailed consideration of Ontario’s declaration of emergency under the Emergency Management and Civil Protection Act (EMCPA) with the wide powers it grants to government and the not particularly strong restraints it imposes on government. At the outset of this post, I wrote the following:
We are experiencing a true medical pandemic in the 2019 novel coronavirus crisis, affecting over 150 countries, including, of course, Canada. And we are subject to emergency declarations, giving governments unusual powers, at the provincial, territorial and local levels in Canada. Even as we accept that these responses, and will accept more stringent ones in the future, are necessary, we need to remember that we still have a social contract with governments that impose obligations on both government and the populace.
I ended the post this way:
While we see no evidence here of an abuse of the powers allowed and accepted to overcome the coronavirus crisis, fear can make one complacent, too ready to agree to a greater rip in the social contract than is necessary to accomplish the goal. Like the frog in hot water, an unscrupulous government (I do not suggest for a moment that this is a relevant description to the Ontario’s use of the powers under the EMCPA) can move the needle along until it has gone beyond the parameters deserving of trust. …
[After referring to coronavirus measures leading to authoritarianism in Hungary, I ask] Would we expect that to happen here? Should we worry about its happening here? Isolated incidents may have given and do give us us concern about governments in Canada, but we do not believe the coronavirus crisis will be abused to demolish democracy. Democracy is sufficiently robust to permit some derogations of free movement and other normal activity. That does not mean, however, that we should not expect our governments to observe their social contract with us, even while they are exercising emergency powers, and to act in accordance with law even in this tragic time.
This post is critical of the replacement of the EMCPA with the Reopening Ontario Act because the latter permits the same orders as under the EMCPA but without some of the constraints. Recognizing that it may be necessary to impose restrictions in the future (as it was), I concluded, “Yet by shifting from the EMCPA to the more positive and optimistic Reopening of Ontario Act, [the government] is able to eliminate even the vestiges of legislative democracy in order to benefit from the processes of executive authority.”
Other of my posts relating to the pandemic address a variety of issues:
a two-part series on the pandemic and law here and here; the municipal by-law requiring mask wearing indoors in public places; questions arising from Ontario’s “A Framework for Reopening our Province“; on federal travel requirements here; a three post series on closing provincial boundaries (here, here and here); on the report on municipal governance (States of Emergency) during the early days of the pandemic here; on Covid-19 vaccine requirements (see here, here and here); privacy and vaccination information (see here).
Overall I have believed that with some exceptions (such as overzealous enforcement of restrictions or the very concerning but quickly withdrawn legislative provision that during the “stay at home” order police could stop people simply walking in the street, primarily because police refused to enforce it), in general the restrictions have been warranted as a legitimate and effective way of at least keeping Covid-19 cases from increasing and our hospitals from being overwhelmed. This “acceptance”, however, is premised on a scepticism about government’s ability to restrain its actions and the need not to be complacent about governments’ tendency to overstep their legitimate powers.
But perhaps the Free North Declaration has convinced me that I have been wrong and at the least too trusting? In order to answer that question (see the end of this post), without reproducing the entire document, I need to “unpack” the Declaration bit by bit. (In doing so, I don’t attempt to address each point, but what I see as the main ones.)
THE FREE NORTH DECLARATION: ANALYSIS
The authors establish their bona fides by identifying themselves immediately as “Canadian lawyers”. Usually when we do this, we expect our comments will carry more weight than if we speak as mere “citizens” (although “citizens” can sign the Declaration). Just as quickly, they use passionate and extreme language: “civil liberties are under unprecedented attack. Governments, public health authorities, universities, public and private employers, municipalities, and businesses are trampling Canadians’ rights and freedoms. Our free society is at risk”. And later, they refer to public health officials’ “draconian legal restrictions”. (Emphasis added)
Stressing the “unprecedented” nature of the response to the pandemic ignores Canadian history. We can start with the efforts to eliminate Indigenous culture, extending at times to life itself. Let’s jump to the invocation of the War Measures Act in World War I to authorize the internment of thousands of people (“enemy aliens”). Prompted by World War II, the 1939 Defence of Canada Regulations “gave authorities the ability to censor 325 newspapers and periodicals and to ban more than 30 religious, cultural and political organizations, including Jehovah’s Witnesses and the Communist Party of Canada”. The same Act led to the internment of 22,000 Japanese Canadians and others during WWII. In 1970 the War Measures Act justified the arrest and detention of 479 people in response to the FLQ crisis (the Public Order (Temporary Measures) Act replaced the War Measures Act). (See Canadian Encylopedia for this history and subsequent changes to the law).
I mention these events only to indicate we’re not facing something new in the pandemic restrictions, but over Canadian history emergencies have been used to justify other restrictions, including imprisonment and dispossession of property. The past and current restrictions have been different: they have contemporaneously affected more people (that is, most of us across the country in different ways — we learned “we aren’t in this together”); and this time many more of the majority population, so perhaps they seem different and more offensive to the rule of law from the Declaration’s authors’ perspective.
Two premises underlie the Declaration: the seriousness of the pandemic; and the significance of individual autonomy (this latter I consider below).
Towards the end of their manifesto, the authors “question the single-minded fixation on a virus that poses little risk to most people”. One does not want to think about the consequences of not taking many of measures that governments have taken to control the pandemic. We see that when the measures are relaxed, when jurisdictions are “opened up”, they experience spikes in cases requiring reinstitution of at least some of the measures (see New Brunswick, Yukon and Alberta, for example, as well as certain European countries). Covid-19 is real and it is more “real” for some people than for others, whether the immediate seriousness or the long-term effects. (See Health Canada, “Social inequalities in COVID-19 deaths in Canada” for the disproportionate impact of the pandemic in early days.)
I confess to my own bias in examining the Declaration: I do believe the pandemic has been serious and despite the relaxing of restrictions still has the potential to be serious again. Some 1,770,000 cases and over 29,000 deaths in Canada from the beginning of the pandemic to today convince me that this has been serious and that without the vaccines, the figures would continue to be high, given the impact of the virus on the unvaccinated. (In comparison, influenza cases in 2018-19 were about 48,000 and deaths from influenza and pneumonia that year were about 8,500. In 2019-2020, there were few cases and very few deaths because the Covid-19 protocols of masking and stay at home also had an impact on flu. (See Covid-19 Tracker on the Covid-19 figures and Statistics Canada on the flu figures for 2018-2019.)
The Declaration is almost correct in stating that “Covid rules restrict citizens’ abilities to work, shop, travel and socialize”. These rules have seriously restricted many people’s ordinary lives. I don’t underestimate the emotional and mental impacts on people; those working in the area also report an increase in intimate partner violence. (The Declaration does not speak of this.) A more complete timeline would point out that these restrictions are gradually being lessened in response to a decline in Covid cases, hospitalizations and deaths.
In a seemingly disappointed tone, the Declaration is also critical because governments have (for the most part) been clever in their restrictions, “attempting to not run afoul of the law or to trigger protections under the Charter of Rights and Freedoms”. Indeed, section 7.0.2(1) of the EMCPA (somewhat ambiguously) does require that governments act within the space of Charter protections: “The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms.”
Granted, governments do sometimes come up to the edge of Charter protections and the Charter does allow for the government to override certain rights under section 33 and to justify its breaching of rights. (On this point, can we speculate that the authors of the Declaration may also be concerned about the Ontario premier’s eagerness to resort to section 33 in other contexts?)
Of course, it doesn’t matter if the government does overstep because, according to the Declaration, the courts are stooges of the government, “deferr[ing] to the state to take whatever measures it deems necessary, whether demonstrably justified or not”. This last comment glides over that the courts would normally consider whether the measures are demonstrably justified and only then, if they are, would they uphold them; the suggestion, then, is that the courts have abdicated their responsibilities to hold government to account.
The Declaration moves on to castigate the “unelected public health officials” who “create draconian legal restrictions by fiat, without public scrutiny or debate”. It then lists a number of these restrictions.
When there is a public health emergency, public health officials have had and do have considerable power under legislation. Their authority is not limited to the pandemic: they bring an expertise to identify when a health situation of any kind seriously threatens the society. The Canadian Public Health Association (“CPHA”), a non-government body, published an assessment of the public health measures in February 2021. It notes, “Public health organizations have a history of responding to infectious disease outbreaks with the skills, competencies and professionalism that are the hallmark of the public health profession.”
The CPHA provides a thoughtful and balanced consideration of the benefits and flaws in the responses to the pandemic across Canada, as well as considers the longer-term ramifications, with the goal of learning from the Covid-19 experience.
Vaccination requirements form a major element of the Declaration. I’ve learned (from the Declaration) that, to my surprise, “[i]n our system of law, no principle is more important than the right to control your own body and make your own medical and health decisions”. This is certainly news to those who have fought for reproductive rights over many years, still having to deal with recalcitrant governments, or to those fighting for trans rights.
For the authors, it is not only governments, but private employers and others, as well as medical regulators who have deprived people of their rights to bodily integrity. (The authors might have noted that these restrictions and requirements are in aid of the bodily integrity of others.)
The Declaration states that the medical regulators “have warned doctors not to express medical opinions that might conflict with official Covid policies…and directed them not to certify grounds for medical exemptions from vaccination requirements”. This, it goes on, “rupture[es] the physician-patient relationship and breach[es] the principle that only a practitioner who has examined a patient is equipped to a give diagnosis”.
Anyone who has a Twitter account will see that doctors do disagree with official Covid messaging, even though they recognize the seriousness of the pandemic, because they disagree with particular government decisions. Other doctors have indicated that they do not believe Covid-19 is serious or that there are easy ways to deal with it (unapproved medications, for example). However, the most misleading statements in this part of the Declaration relate to the right of doctors to provide medical exemptions for vaccine requirements.
In the “normal” course, doctors will provide “medical notes” on the say-so of their patient, stating, for example, that the individual should be exempt from this, that or the other thing. (As a former educator, I often found these notes very frustrating: vague and based, not on an examination of the individual, but merely on the individual’s description of a prior condition.) The “medical regulators” have created an exemption to this laissez-faire approach. They have limited the reasons doctors are allowed to “write a note” to exempt someone from vaccine requirements and required them to say the reason for the exemption.
For example, the College of Physicians and Surgeons of Ontario states, “While physicians are generally required to complete third party medical reports for patients when requested, the circumstances of the pandemic support physicians declining to write notes or complete forms when the patient making the request does not have a medical condition that warrants an exemption”. It explains, “there are very few acceptable medical exemptions to the COVID-19 vaccination”, providing examples.
Thus the Declaration is at best misleading and at worst simply wrong about whether doctors are able to write notes providing exemptions for people from vaccine requirements: they can when there is a legitimate medical reason to do so and not to act as the individual’s agent to help them avoid the vaccine because they do not want to get it. And doctors will make the decision after consultation with the patient.
It has become trite to point out that vaccination requirements are not new, whether for certain jobs or for travel to certain places. And it is not new that it may be necessary to provide others with information about vaccinations. What is new is that the requirement is for Covid-19 vaccinations and, admittedly, for a wider range of contexts and individuals who will see the vaccination status.
This is not a situation where, to quote the Declaration, “[t]he right to privacy and control of personal medical information has been abandoned” because in certain (granted) limited contexts, it did not exist previously. And the reason it did not exist in those situations is because there were serious risks to others when people did not follow these requirements. While the authors of the Declaration deny this, the reality is that until the pandemic morphs to become endemic, the risks that have warranted narrow limitations on privacy and control of medical information are more widespread (see here).
Furthermore, while people may be concerned about privacy, certain protections can be built into the vaccination requirements (in the same way as applies to other personal information or that there is no record kept once the individual shows the “passport”). (On vaccine passports, see the Office of the Privacy Commissioner of Canada.) As someone who has never joined Facebook, I understand why people are rightly concerned about privacy and tend to agree that people need to be reassured on this point.
Let me return to the second premise underlying the Declaration: the commitment to individual autonomy at the expense of the common good, that individual rights should transcend the collective good, even when they may harm the collective good and other individuals. As it states, “An anxious populace, swept up in a deliberate campaign of fear, now believes that individual liberties upon which our liberal democracy is founded are dangerous and selfish. A growing collectivism that demands safety at the expense of autonomy shapes public policy.”
Here the Declaration is not completely wrong. Given what we know about the effectiveness of vaccines in controlling the coronavirus and the need for a certain level of vaccination before realizing that effectiveness fully, there is a widespread negative response to those who refuse to get the vaccine. When we see that hospitals are prioritizing Covid patients at the expense of others (probably vaccinated) who need crucial surgery or emergency medical care, people tend to question why those who won’t get vaccinated are so willing to exercise their autonomy at the expense of others.
Similarly, we can go back to before the vaccine has been available to see the number of deaths, the disproportionate deaths of seniors in long-term care, the burden on front-line healthcare providers. Thinking about them is indeed thinking about “collectivism” — caring about the collective as a whole.
And the Declaration is correct in saying that “Covid vaccines do not prevent people from becoming infected or from transmitting the virus to others, but only unvaccinated people are banned or required to undergo testing”. The kindest thing one can say about this is that it reflects a sleight of hand. As far as it goes, it is correct. But it is also incorrect because it is incomplete. The vaccines do a good job in preventing people from becoming infected and if they do become infected (see next paragraph), the effects are likely but not necessarily to be milder.
Of course, vaccines are not perfect and people who are vaccinated experience “breakthrough” cases of Covid-19, usually (but not always) mild, and they can transmit it to others. But why is that? It’s because of those who are not vaccinated, whose cases can be serious and even result in death. And who can provide a launching pad for possible variants even more easily transmissible or potentially more serious than the current Delta variant. It makes sense, therefore, to protect those (the majority) who are willing to do what is necessary to lessen the impact of Covid-19.
The Declaration downplays the positive impact of vaccinations while exaggerating the harm people have suffered from them, insinuating that they are not effective (they “do not prevent people from becoming infected or from transmitting the virus to others” and “[t]he risks posed by Covid vaccines may be in dispute, but they are not zero. Particularly for children and healthy young adults, they may be riskier than the virus.”). These generalizations are not merely misleading, they are dangerous.
As today’s editorial in The Globe and Mail states,
Health Canada data show that, since the start of the vaccination campaign on Dec. 14, 2020, 82 per cent of reported cases, 82 per cent of hospitalizations and 77 per cent of deaths occurred in unvaccinated people.
In Ontario over the past 90 days, the unvaccinated were being infected at between four and six times the rate of the fully vaccinated, according to provincial data. As of last Thursday, they were also three times as likely to wind up in an intensive care unit.
At the same time, the odds of being hit by dangerous side effects from the vaccines have been vanishingly small. Out of almost 60 million doses of the various vaccines delivered to date in Canada, only 0.01 per cent resulted in a serious adverse effect, according to federal government data.
(The Globe relies on Health Canada for its data. Health Canada’s data on the percentage of vaccinated and unvaccinated persons who have had Covid-19, who have been hospitalized and who have died are here and on the side effects of vaccines here. On current Covid-19 cases in Ontario, see here.)
There is value in questioning government action, in requiring explanations and justifications for various measures and consequences of enforcement, or in seeking effective alternatives. Goodness knows, there is room for criticism of the timing of measures and their relaxation, who received protection and who was left particularly vulnerable and other matters. (The Declaration rightly points out, for example, that pharmaceutical companies are free from liability, a common practice.) And lawyers, like everyone, are entitled to their opinion and to express it.
However, it is disappointing to see lawyers, who should understand the need for appreciating the full picture and bring evidence to bear, taking advantage of their status to encourage or support the kind of protests we see in the streets by many who too often show little understanding of vaccines or the pandemic itself.
There is plenty of room for criticism of government or for debate on a number of measures governments and the private sector have put in place. But looking at the big picture, our approach to the pandemic, our view depends on
a) whether one acknowledges that there is a pandemic that left uncontrolled may affect anyone (at different times, we’ve seen older and younger cohorts particularly affected) and that, for several reasons, has had a particularly negative impact on vulnerable communities;
b) whether one accepts that emergencies require extraordinary responses; and
c) whether one believes society is comprised of individual atoms with little or no responsibility to each other or of individuals who live based on a balance of autonomy and collective responsibility.
At last, I can answer the questions I asked earlier: has the Declaration convinced me that I have been wrong and at the least too trusting? The answer: no, it hasn’t and, no, based on the Declaration at least, I haven’t.