During COVID, Canadians have been subject to some of the most sweeping restrictions in the history of their country, and the Constitution has not protected them. This crisis did not begin with COVID. Over time, the managerial state has become ubiquitous and insatiable. It licenses, expropriates, subsidizes, censors, prescribes, plans, incentivizes, and inspects. And now it directs personal behaviour and medical treatments. Our country is becoming more like China than the reverse.
After crowds cheered them on from overpasses and at truck stops from one end of the country to the other, the Freedom Convoy arrived at Parliament Hill in Ottawa on Jan. 29 to protest COVID vaccine mandates. Thousands of supporters joined them to wave Canadian flags, dance in the snow, play street hockey, and cheer speeches delivered from a flatbed truck. Kids played in a bouncy castle and on hay bales.
On Feb. 18 and 19, police brandishing riot batons arrested close to 200 people, broke truck windows, and unleashed the occasional burst of pepper spray. By the evening of the 19th, the trucker encampment had been cleared away. Two days to flatten the bouncy castle confirmed what two years of COVID restrictions had already demonstrated: Canada needs a new constitution.
You wouldn’t know that from reading the existing text. The Canadian Constitution seems to compare well to others around the world. Fourteen years ago, Chinese dissidents wrote Charter 08, a petition that called for a new constitution for China that guaranteed democratic representation, separation of powers, an independent judiciary, the rule of law, and the freedoms of association, assembly, religion, and expression.
In Canada, we already have all these things, or at least we appear to. Our Constitution incorporates the British model of liberal democracy, including representative legislatures and independent courts. It also includes a Charter of Rights and Freedoms, which guarantees the freedoms of association, assembly, religion, expression, and more. Our courts have endorsed the concept of separation of powers, and our Constitution explicitly cites the rule of law.
Yet for two years, lockdowns, vaccine mandates, masking requirements, and other COVID rules have upended Canadians’ lives and quashed their civil liberties. People who resolved to make their own medical decisions have lost their jobs, businesses, education, social lives, ability to travel, access to their children in custody disputes, and to their elderly parents in long-term care homes.
The truckers parked unlawfully in downtown Ottawa, in violation of parking bylaws and probably the Highway Traffic Act. Authorities could have enforced those laws by issuing tickets and then towing the trucks away. But they didn’t.
Instead, two weeks after the convoy arrived, the federal government jumped all the way to the Emergencies Act. The emergency they cited was not parking violations, but “the threat or use of acts of serious violence.” Yet the convoy and the protesters had been peaceful throughout, and the public safety minister, Marco Mendicino, admitted that the government had received no intelligence about impending violence or the presence of weapons. Instead, the minister identified the source of the emergency as “rhetoric” that asserted an ideological position.
Without using the word, the government accused the convoy and their supporters of sedition. Police cleared the streets of protesters who were doing little more than waving flags and protesting government policy. Donors to the cause had their bank accounts frozen, and could have their financial transactions flagged forever. The Ontario government suspended trucking companies without due process, and will be bringing forfeiture proceedings to seize money raised by the Freedom Convoy without the need to show criminal convictions.
None of these actions or restrictions violated charter rights, government officials maintain, or if they did, constituted “reasonable limits” that the charter permits. So far, most courts have agreed, although there are challenges still to be heard. During COVID, Canadians have been subject to some of the most sweeping restrictions in the history of their country, and the Constitution has not protected them.
This crisis did not begin with COVID. Over time, the managerial state has become ubiquitous and insatiable. It licenses, expropriates, subsidizes, censors, prescribes, plans, incentivizes, and inspects. And now it directs personal behaviour and medical treatments. It dictates conditions for participation in civil society—travelling, working, shopping, education, exercise, and socializing—and punishes support for the “wrong” causes. We are only a skip away from digital ID and full-blown social credit scoring, which perceptive pundits, also known as “conspiracy theorists,” have been warning about for some time. As American podcaster Eric Weinstein tweeted recently, there is a pivotal moment in authoritarian transitions when narrative dissent becomes treason. Our country is becoming more like China than the reverse.
The authors of Charter 08 might not understand how this could happen in Canada. Their model for reform, their shining city on the hill, is the West. They believed so strongly in emulating its principles that they took the risk of issuing Charter 08, which so outraged Chinese authorities that Liu Xiaobo, one of its principal co-authors, was arrested and sentenced to 11 years in jail, and later died in prison from medical neglect of his liver cancer. But nations of the West, and nowhere more so than Canada, are succumbing to autocratic impulses despite constitutional features to which these Chinese dissidents aspired.
The way to protect liberty is to reject the legitimacy of the nanny state. Instead of focusing exclusively on individual constitutional rights, which courts can override or recast as mandates for collective action, the constitution must starve public bureaucracy of its lifeblood: broad discretion to pursue “common good” in its own image, and the budget and workforce to carry it out.
The constitution should prevent legislatures from delegating law-making powers to unelected officials and agencies; limit the size of the state to a tiny proportion of national economic activity; require balanced budgets; foreclose the creation of positive duties such as taking medical treatments; prohibit surveilling, tracking, freezing, or seizing private property without first obtaining a criminal conviction, civil judgment, or court order; and so on. Our managerial state is relentless in its determination to mould, direct, and coerce. We need a constitution that forecloses its existence.
The existing Constitution has been designed to make such amendments politically difficult, and some might say impossible. No sitting government of any political stripe would willingly go down this road. Only the determination of a critical mass of citizens would be able to make it happen. If there is any hope, Orwell wrote, it lies in the proles. “We the People,” starts the American Constitution, in bigger letters than all the rest. Until recently, no one would have picked Canada as an inflection point between freedom and authoritarianism. But that was before the truckers.
This column is based in part on an article by co-author Bruce Pardy in C2C Journal, The Charter Won’t Protect Us from the Pandemic Managerial State.
Views expressed in this article are the opinions of the authors and do not necessarily reflect the views of The Epoch Times.
Bruce Pardy is executive director of Rights Probe (RightsProbe.org) and professor of law at Queen’s University.
Patricia Adams is an economist and the President of the Energy Probe Research Foundation and Probe International, an independent think tank in Canada and around the world. She is the publisher of internet news services Three Gorges Probe and Odious Debts Online and the author or editor of numerous books. Her books and articles have been translated into Chinese, Spanish, Bengali, Japanese, and Bahasa Indonesia.