Bruce Pardy: COVID has cost Canadians their freedom. It must be restored – National Post

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Lawyers launch the Free North Declaration a call to defend civil liberties in this country

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Many years ago, as a new law student, I had a moment of disbelief. Surely it doesnt really work this way, I thought to myself as I sat in an early class. The law, I discovered, is not a set of immutable rules, predictable and secure. Instead, it is rife with ambiguity, riddled with uncertainty, and subject to the whims, temperaments and follies of human beings who make and apply it. And yet, as I also came to realize, it has often worked well. The Western legal tradition, upon which the Canadian system is based, has protected individual autonomy better than any other legal system in history. The problem is that for decades that tradition, and the culture from whence it came, have slowly been eroding. And now, during COVID, when the law has let us down, there is a tide in the affairs of Canadians.

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Late last week, three colleagues and I launched the Free North Declaration , a call to defend civil liberties in this country, which lawyers and members of the public are invited to endorse. So far more than 6,000 have done so, including over 100 lawyers. The declaration outlines the ways in which legal authorities legislatures, governments, public health officials, professional regulators, administrative bodies and public institutions have restricted Canadians liberties during the COVID-19 pandemic. They have done so shrewdly, to attempt to remain inside the strict letter of the law and to avoid triggering protections in the Charter of Rights and Freedoms. Over the past year and a half, legal challenges to lockdowns and quarantines have mostly failed in the courts, whose decisions have largely embraced governments COVID narratives.

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Canada was in trouble as soon as COVID hit. Crises are an ideal time for the state to advance into territory from which it will not wish to retreat, I wrote in the Financial Post in April 2020. In this new era, we will discover that leaders of all political stripes have more than a little Lenin in them. It is 20 months since two weeks to flatten the curve, and Canadians liberties are under siege like never before.

Canadians liberties are under siege like never before

It may not seem that way if you are double-vaccinated and going to restaurants and concerts again, but keeping your hall pass will require booster shots on schedule. The caring arms of the pharmaceutical industry and public health are now reaching out to protect kids from nonexistent risk. The purpose of vaccine passports, authorities have acknowledged, is not to control spread of the virus, which vaccinated and unvaccinated both can do, but to pressure people to get jabbed. How much and for how long vaccines reduce the risk of infection are in dispute. Meanwhile, the Centers for Disease Control and Prevention has no record of any unvaccinated person spreading COVID after recovering from it. Masking persists everywhere, along with the idea upon which this tragedy began: Governments must keep us safe from viruses and the vicissitudes of life.

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The panic-demic did not start the fraying of the Western legal tradition, which has been underway for decades. In 1975, Prof. Harold Berman lamented that the idea that law transcends politics and is distinct from the state a feature of that tradition had yielded to the view that law is at all times basically an instrument of the state, a means of effecting the will of those who exercise political authority. The instrumentalist, managerial state runs on the arrogance of experts, who believe that ordinary people cannot make their way in the world without direction from them. As Friedrich Hayek wrote, there could hardly be a more unbearable and more irrational world than one in which the most eminent specialists in each field were allowed to proceed unchecked with the realization of their ideals. But experts now have control, and they do not plan to give it up.

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No longer does the individual have the right to act without regard for public good. Instead, authorities will return the freedom to make your own choices only when it is safe to do so. While we were sleeping, the individual became subordinate to the collective. People are apt to believe that the law will save them when things go bad, but simply taking cases to court wont fix this. The law is subject to cultural tides and currents, and when the culture goes askew, the law will provide little refuge.

Alone, the Free North Declaration will change nothing. It will not influence omnipotent moral busybodies exercising tyranny for the good of its victims, as C.S. Lewis put it. Nor will it move people comfortable with giving up responsibility for their own decisions. Instead, the declaration is for those who see that something is not right in this country, and who need to know that others see it, too and that there are still lawyers who will stand up for their freedoms. As Aleksandr Solzhenitsyn wrote, let each of us make a choice: Whether consciously, to remain a servant of falsehood of course, it is not out of inclination, but to feed ones family, that one raises his children in the spirit of lies or to shrug off the lies and become an honest man worthy of respect And he who is not sufficiently courageous even to defend his soul dont let him be proud of his progressive views, dont let him boast that he is an academician or a peoples artist, a merited figure, or a general let him say to himself: I am in the herd, and a coward. Its all the same to me as long as Im fed and warm.

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When the tide comes, we must take the current or lose the country. Please join us in the voyage of our lives.

National Post

Bruce Pardy is the executive director of Rights Probe and a professor of law at Queens University.

Twitter @PardyBruce

We are Canadian lawyers. In our country, 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.

COVID rules restrict citizens abilities to work, shop, travel and socialize. They erode civil liberties strategically, attempting to not run afoul of the law or to trigger protections in the Charter of Rights and Freedoms such as liberty and security of the person, the freedoms of association, assembly, expression, conscience, religion, and mobility rights. Where COVID rules appear to have violated the Charter, courts have deferred to the state to take whatever measures it deems necessary, whether demonstrably justifiable or not.

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Legislatures have passed statutes that delegate broad discretionary powers to unelected public health officials, who then create draconian legal restrictions by fiat, without public scrutiny or open debate. These directives give private and public employers cover to suspend and dismiss workers who insist on their right to decide their own medical treatments. In our system of law, no principle is more important than the right to control your own body and to make your own medical and health decisions. 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.

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Courts have embraced the pandemic narrative, some taking judicial notice of the nature of risks of the virus and safety of vaccines to adults and children. But the facts are anything but settled. Courts are supposed to be neutral. On COVID, as on any other contentious subject, their mandate is to find facts exclusively upon the evidence adduced by the parties in the courtroom. Instead, courts appear to have taken a side on COVID. Access to justice and the rule of law are now at risk. Unvaccinated persons are banned from juries, throwing into question the ability of all to obtain a fair trial heard by a jury of their peers. Irrational policies born of panic affect no one more than disadvantaged communities who already suffer from lack of access to justice.

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The right to privacy and control of personal medical information has been abandoned. Disclosure of vaccination status is becoming a requirement for working, travelling, entering public and private establishments, crossing the border, and sometimes medical treatment. Those who cannot or will not disclose face aggressive social disapprobation. Vaccine passports create the infrastructure for a global digital surveillance system. Institutions that last year were prohibited from collecting individual medical history now demand it as a condition of employment or admission. University and college students are being denied their education for refusing to disclose their own medical choices.

Medical regulators have become dictatorial. They have warned doctors not to express medical opinions that might conflict with official COVID policies, effectively censoring them, and directed them not to certify grounds for medical exemptions from vaccination requirements, rupturing the physician-patient relationship and breaching the principle that only a practitioner who has examined a patient is equipped to give a diagnosis. Human rights commissions, which until recently championed expansive interpretations of human rights, have issued edicts narrowing grounds for accommodations.

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COVID rules are inconsistent and irrational. Authorities enforce them selectively and preferentially, coming down hard on common people while turning a blind eye to the privileged. COVID vaccines do not prevent people from becoming infected or from transmitting the virus to others, but only unvaccinated persons are banned or required to undergo testing. People who have recovered from COVID and therefore have natural immunity are still subject to vaccination mandates even though the purpose of vaccination is to mimic natural immunity. Governments, public health authorities and employers advise that COVID vaccinations are safe, but pharmaceutical companies have been granted immunity from liability and no employers will accept legal responsibility for side-effects or adverse events, whether minor or serious, suffered by their employees who take a vaccine that they do not want. The 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.

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We fear the erosion of our free society. We question the single-minded fixation on a virus that poses little risk to most people. We protest the uncalculated harms that COVID policies are causing to peoples health, livelihoods, relationships, and mental states. We oppose the mass hysteria and anxiety that governments and the media are fuelling. Most of all, we object to the deterioration of our civil liberties and the failure of our legal institutions legislatures, governments, administrative bodies, and courts to protect them.

We are appalled by what is happening in our country. We call for the immediate end of vaccine passports and mandates. We propose a public inquiry into the handling of all aspects of the declared pandemic. Canadians should have control of their own lives and have the right to make their own decisions about their health, medical treatments, personal information, travels, and associations. Canada is supposed to be a free country governed by the rule of law. Restore it now or risk losing it for good.

Original signatories:

Bruce Pardy, LLB, LLM.

Lisa Bildy, JD, BA.

W. Christopher Nunn, BA (Hons), LLB.

Stephen J.W. Penney, JD, MA.

To inspect the full list of lawyer signatories, or to sign the Declaration, visit https://www.freenorthdeclaration.ca

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Bruce Pardy: COVID has cost Canadians their freedom. It must be restored - National Post