Prof. Ryan Alford on the limits of the Charter in protecting rights during a crisis

Prof. Ryan Alford on the limits of the Charter in protecting rights during a crisis

The following is an abridged and adapted version of the comments Prof. Ryan Alford made during the CCF’s Digital Town Hall meeting held on May 26, 2020. The full clip can be viewed here. Prof. Alford’s new book “Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law” is available now.

I hope that everyone who is listening to this call has a sense of how important it is, not only to understand constitutional rights, but to understand how particular attention to civil liberties is important in a crisis like this. If you take a look at the work that the CCF is doing, you see that it goes far beyond people’s understanding of the Canadian constitution—and perhaps beyond most experts’ ideas of the Canadian constitution. One feature you may have noticed of this crisis is that when academic experts are brought on to public affairs programs, they almost inevitably answer questions about constitutional rights in a very problematic way.

The question posed to them is often: “Can the government really do this? This seems quite intrusive?” 99% of the time, my colleagues in academia say “Well, the question is whether the measure is necessary and proportional to this kind of crisis. And given the scale of this crisis, as we understand it, the answer is yes—so—yes it is constitutional.” Or they’ll say: “Well, I think a court would be reticent to find this unconstitutional.” They try to give you an analysis weighing whether a government action is both necessary and proportional. And what’s remarkable is that this analysis only applies to the Charter. This leaves it up to organizations like the CCF to bring constitutional challenges which have a high likelihood of success based on older constitutional principles that are not subject to this same kind of thinking.

When Joanna mentioned section 91 and section 92, one of course is from the Constitution Act, 1867, or what would have been previously referred to as the BNA —which doesn’t have that structure which comes from section 1 of the Charter. Section 1 is known as the “reasonable limits clause” and it limits many constitutional rights enumerated in later sections. And the problem with the Charter, and Charter rights generally, is that we never consider the possibility of the kind of crisis we’re going through now when we built section 1. You have these rights, but they are limited in this kind of situation based on these considerations of necessity and proportionality. In this kind of crisis, we will always have certain counter-arguments to questions about rights. “What is your life compared to a million?” How do we perform a balancing test on that basis? How do we perform a balancing test when someone says: “I would like to see my dying mother in the hospital”? The government says: “ Yes, but this would create some sort of risk to the general population. You would be a link in the transmission of a virus to an immuno-compromised person.” How are courts supposed to perform in this environment? In an environment where you see someone going into a grocery store, say in the United States, and they could be shouted down for not wearing a mask, and they’re essentially expelled for not wearing that mask. Even when, as we know, there are people with conditions who are advised not to wear a mask by their doctors. How does a court balance situations like this? It’s a wholly inadequate process in a situation like this.

Part of the problem as I understand it, is we see history only moving in one direction. If you see history as a story towards a utopian future and away from the “bad old days”, you don’t need to think about the safeguards painstakingly constructed over centuries to constrain governmental power. I was on a podcast with the former attorney general of Ontario, who also leads a civil liberties organization today, and we were discussing the Quarantine Act and how there was no discussion of habeas corpus —which is absolutely mindblowing. This essential bedrock to our justice system, and our constitutional order as a whole, even prior to 1867, isn’t being discussed. If we don’t have any absolute rights, then we don’t really have any rights during a crisis at all. It is too easy to justify, based on open ideas of balancing interests, some measure that restricts rights. There will inevitably be crises that test the rule of law in a country, and the most important thing to understand in that crisis, is that approaching these issues with “proportionality” and “balancing” in mind first, does not adequately protect rights during a crisis. So what rights do we have that neither the provincial or federal government can violate?

As a constitutional historian, I’m not trying to be an antiquarian in talking about the development of Canada’s constitutional tradition. I’m joining the CCF today in talking about rights in a crisis like this because there are rules so fundamental to the constitutional order that are being forgotten about.The funny thing about not learning something is that if you never learn it, you can never use it —in fact, you don’t even know you could have used it. Constitutional history is vital knowledge to know in this kind of situation. There are rules that were thought of as so fundamental, that they aren’t even mentioned in more recent constitutional documents. It’s like not including in the rulebook of Chess that you cannot kick over the board when you’re losing —it’s taken as implicit, that this kind of action is already against the rules, so it isn’t explicitly written in the rulebook. Likewise, there were certain principles already taken as a given within our governmental order before 1867. If we do not teach this history, it’s almost inevitable that everyone will think that the only constitutional rights they have come with the Charter. I wrote my book “Seven Absolute Rights”, squarely with the purpose in mind to help people in the kind of crisis we are in the midst of. It needs to be asserted that there are rights that cannot be infringed, no matter how compelling the government objective is.

We previously thought that until quite recently section 7 rights were effectively absolute. (The right to life, liberty and security of the person). No one would have argued, at the time the Charter was framed, that you could be deprived of your life in a manner that is not consistent with the principles of fundamental justice. But this can now be nevertheless justified as a reasonable limitation of your rights. Section 1, the reasonable limits clause, can now be applied to section 7.

So in conclusion, if you think the Charter is an adequate guarantor of your rights, you might be unpleasantly surprised. Thank you for letting me speak. I’m very happy to speak to people who understand exactly how important it is to think about and discuss these issues. There is nothing more important than working to protect civil liberties. I would encourage all people to support the work of civil liberties organizations like the CCF. It’s important to defend these rights and liberties if you prize them as I do.