OPINION | Why we need to sue the government more often
Governments must be forced to justify their COVID restrictions, and the courtroom is the place to do it
This column is an opinion from Charlotte Dalwood, a juris doctor student at the University of Calgary's Faculty of Law.
When it comes to defending our rights and freedoms, Canadians aren't nearly litigious enough.
Take Alberta's current batch of health restrictions. Even with the recent relaxations, these prohibit most indoor social gatherings, limit religious services, shutter a range of businesses, and generally disrupt Albertans' personal and professional lives.
But do they also violate our constitutional rights? The Alberta plaintiffs who, in December, tried unsuccessfully to temporarily suspend these restrictions certainly thought so. And if the constitutional challenges to health restrictions in other provinces and territories are any guide, plenty of other Canadians think so, too.
Now, the provincial government's efforts to manage the COVID-19 pandemic probably pass constitutional muster. The Canadian Charter of Rights and Freedoms guarantees certain fundamental freedoms, like that of peaceful assembly. But these protections are not absolute.
Our charter permits the government to place limits on rights, if those limits "can be demonstrably justified in a free and democratic society." And it wouldn't be especially hard to demonstrate that justification when the limits in question are designed to safeguard public health during a deadly plague.
But Canadians still need the government to demonstrate it. And the courtroom is the place to force it to do so.
Cowering in the shadows
Alberta's UCP government is famously secretive.
True to form, its strategy throughout the pandemic has been to run from public accountability. From the behind-the-scenes demands that health experts meet "evidence-based thresholds for mandatory restrictions" that the government had not disclosed publicly, to the lack of transparency in its vaccine rollout, and the carefully orchestrated press briefings designed to limit the media's ability to scrutinize provincial officials and decisions, we have seen what amounts to a pattern of cowering in the shadows.
If the provincial government is unwilling to defend its actions in the court of public opinion, Canadians should compel it to do so in a court of law.
And I do mean Canadians. Because whether it's in Edmonton, Toronto, Ottawa, or anywhere else in this country — when there's even a potential violation of our essential freedoms, everyone has a stake.
"Public interest standing" is one of the ways our justice system allows for this.
"Standing" is a way of talking about who's permitted to bring a legal action before a court.
It would overwhelm our justice system if anyone could bring any issue before any court simply because they didn't have anything better to do with their time. Consequently, courts don't grant standing to plaintiffs who raise frivolous objections to government actions or who aren't directly impacted by, or genuinely interested in, the legal issue and its resolution.
WATCH | Alberta Premier Jason Kenney announces new COVID-19 restrictions for Alberta
To be sure, a charter infringement in Alberta most immediately affects Albertans. It's both natural and desirable, therefore, that Albertans should take a leading role in objecting to such violations as they (potentially) occur. But it's naïve to think that the rest of the country doesn't have a personal interest in what happens here.
Indeed, their rights are on the line, too. And if our provincial government isn't challenged when it enacts measures of questionable constitutional validity, it will only embolden the leaders of other provinces to do the same.
When there's a legal threat to the constitutional foundation of Canadian society, public interest standing lets individual Canadians and groups advocate on society's behalf. That's why it's so essential to our democracy, even when the constitutional challenges fail.
The judiciary might like to think of itself as the "guardian of the constitution," to quote a 1984 Supreme Court decision. But judges decide the cases that are brought before them. It's up to ordinary people to give them the chance to do so.
Sometimes this happens organically, for instance when someone is charged for violating a law and, in their defence, they challenge that law's constitutionality. On these occasions, it makes sense for public interest groups to seek standing to support the affected person in their suit, rather than to initiate a separate action.
Bad laws shouldn't stay on the books
When the province's pandemic travel restrictions prevented Kimberley Taylor from attending her mother's funeral, she joined the CCLA in challenging the restrictions as unconstitutional. Kimberley brought the facts, and the CCLA brought the resources and legal expertise.
But bad laws shouldn't stay on the books until after they've done their damage. People shouldn't have to suffer in order to access justice.
So when Canadians see a government overstepping its constitutional bounds, and a case like Kimberley's isn't already before the courts, they need to act preemptively to keep injustices from occurring in the first place.
Which is just another way of saying that we need more COVID-related lawsuits — really, more lawsuits in general. And we need more people to bring them.
Ontarians should be challenging the constitutionality of Alberta's health restrictions. And Albertans should be challenging Ontario's. Not because we are Albertans or Ontarians. But because we are first and foremost Canadians, whose charter rights will protect us only if we are willing to fight for them to the fullest extent of the law.
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