The Supreme Court Makes it Official: Public Health Orders are Legal & Constitutional

Canada's highest Court deals a death blow to one of the foundational ideas of anti-vaxxer conspiracy theories

The Supreme Court of Canada issued an important decision, which, sadly, will be likely be covered as little more than a footnote.

The Supreme Court has refused to hear an appeal from a number of Manitoba churches who argued “public health orders in 2020 and 2021 that temporarily closed in-person religious services, then permitted them with caps on attendance, violated the Charter of Rights and Freedoms.”

By electing not take the appeal, the Supreme Court of Canada has reaffirmed the decisions of lower courts in Manitoba, which found that public health orders are legal and do not violate the constitution.

A news stories on the original ruling, from Oct 21, 2021, can be found here:

https://www.cbc.ca/news/canada/manitoba/manitoba-churches-charter-challenge-covid-decision-1.6217925

The Court of Appeal ruling from June 19, 2023 is here:

https://www.cbc.ca/news/canada/manitoba/churches-appeal-pandemic-restrictions-court-ruling-1.6684467

This is a much more monumental decision that it first appears, because it decisively rules against one of the most insidious pieces of legal and political disinformation during the pandemic - the idea that public health orders violate constitutional rights.

They don’t, and that has profound implications. That is because since the global pandemic was declared (four years ago this week), there are folks who have, to put it politely, been operating on based on a misapprehension - a truly colossal mistake, that helped fuel unlawful protests.

People were falsely led to believe that governments were breaking the law, violating Canada’s constitution and engaged in authoritarian overreach, and that people who were refusing to obey public health orders were innocent.

This was what the Justice Centre for Constitutional Freedoms claimed was happening. Many people believed this to be the case: it is one of the central justifications for the protests in Canada against vaccine mandates. The JCCF and other commentators, including noted non-legal expert Jordan Peterson, have loudly and widely repeated this claim. JCCF and Carpay were in Ottawa advising the Freedom Convoy during its protests there.

The Supreme Court of Canada has validated Manitoba Court findings that the JCCF’s claim is the opposite of the truth.

Public health orders are legal and constitutional. People’s rights to freedom of expression or worship in Canada are intact. Civil authorities are allowed, by law, to take safety measures in a state of emergency, especially natural disasters.

That includes outbreaks of infectious disease. If governments cannot act in a state of emergency, people will die. Floods, fires, earthquakes, storms, and infectious diseases are all a fact of life, and the right actions can prevent disasters from getting even worse.

The reality is that governments were on the right side of the law, and JCCF and the people they represented and informed were not.

When I say that Carpay and the JCCF were on the wrong side of the law, that is not embellishment or overstatement.

During the first case, it emerged that Carpay had hired a private investigator to follow the Judge ruling on the case, and the other lawyer was aware from it.

Ottawa human rights lawyer Richard Warman has filed a complaint with the law societies of Manitoba and Alberta about the incident.

"It's probably the most egregious case of professional misconduct that I've heard of in quite some time," he said.

"Any lawyer found to have been involved in this should face the most severe sanctions possible, up to and including disbarment. This is just not done."

Eric Adams, professor and vice dean with the law faculty at the University of Alberta, says it's likely Carpay committed a number of breaches of the provincial law society's code of conduct which could see him reprimanded, fined or even disbarred.

"Lawyers across Canada were shaking our heads in disbelief," Adams said. "The [code of conduct] specifically says that a lawyer can't hire anyone to try and influence a court or judge."

In fact, Carpay was charged with two criminal counts: “intimidation of a justice system participant and the attempt to obstruct justice.”

The charges were stayed as part of a plea deal that meant that Carpay cannot practice law anywhere in Canada for three years.

Two Alberta lawyers charged with attempting to obstruct justice have been banned from practising law anywhere in Canada for three years as part of a plea deal with Manitoba prosecutors that saw their charges stayed.

Now, I am not going to pretend that the provincial pandemic response in Canada was good.

In Manitoba, it was often a disaster, compounded by preventable tragedy and death, as well as incredible pressure and misery because governments asked individuals and businesses to bear the brunt of the sacrifice without compensation.

It was bad, and it could have been much worse if not for the people who were being responsible and did the right thing - especially folks in health care and other caring systems who made incredible sacrifices.

Every responsible person had to shoulder the extra burden of people deliberately undermining their work and making the crisis worse, based on misinformation about science, medicine and the law.

Last year, I spoke to someone who wrote a report about the state of the health care system, and what needed to be done to rebuild it.

They made a point, which simple explained both the terrible pain of the pandemic, why we don’t want to look back on it, and why we should.

The pandemic was a mass grief event. We are all grieving what we lost in the pandemic, including people, friends, family, co-workers.

Many thousands of people died, sometimes under some really hard circumstances. Seniors homes where nearly everyone died. Hospitals where people died, comforted by medical personnel who stood in to provide comfort because family could not be there. For many thousands of Canadians, it was a lasting horror, and the scars aren’t gone, and political and personal divisions are lasting too.

I know most people want to leave the pandemic behind. There is a real reluctance to grapple with the terrible impact it had, the massive disruptions and anguish it created - mental, spiritual and financial.

The reality of the pandemic for public health officials is that there are times when there are no good options. When a new virus emerges there are no treatments, and just as important, no knowledge about it. No virus, no cure and no real “modern” measures (pills, medicines, vaccines) to deal with it. It all has to be invented again from scratch.

It’s not just public health emergencies. It’s all emergencies. We need to have plans that work in a crisis, so that the next time, we’re better prepared.

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