Recently I read a very brief exchange on social media between a young punk and a senior distinguished law professor. The youngster had posted a lament decrying how his constitutional rights were being abrogated by restaurants and bars requiring proof of full vaccination against Covid-19. By way of response, the professor carefully explained that there was no Charter right to a burger or to admission to a sporting event.
In what now passes for modern intellectual discourse on social media—that great mediator of proxy expertise—the junior merely answered the advice with a wide-mouthed howler emoji. In one effectual strike, this gesture served to ridicule the professor, dismiss the advice and end that discussion.
In this slightly more robust format, another law professor (me) will attempt here to argue that this pandemic offers the best universal teaching moment for Charter rights that we have seen during the forty-year lifetime of the document.
Constitutional Rights are Generally Misunderstood
When pushed against the wall, Canadians are inclined to readily claim constitutional rights to fortify any position they seek to promote. They embrace and fiercely cling to the rights delusion despite possessing little to no precise understanding of constitutional law or law in general. Indeed, they are often manifestly in error in their confident understanding of the law. This is what Cicero, in his De Legibus, meant when he wrote that “the litigious spirit is more often found in ignorance than with knowledge of law.”
Blame for the abysmal state of legal literacy in Canada, however, is not all to be laid at the feet of the proletariat. Our ‘all or nothing’ legal education system cleaves Canadian society into lawyers or clients and nothing much in between. It is difficult to learn ‘a little law’ independent of its formal analytical architecture. It is like expecting one to write emotive sonnets without knowing grammar, or to remove one’s appendix in the borough of one’s kitchen.
Nor does legal literacy advance where the shallow popular press with concentrated ownership is headline- and result-driven, and unburdened by objective analysis. It is a sector more pre-occupied by activism and entertainment than education. In the world of texts, likes, emojis and clever posts on social media, few people choose to read and think in depth and the mainstream media and education system are not invested in changing that.
We appear to live in a rights culture. A mere assertion of a right is presumably sufficient fiat to establish it. Personal wants and desires become legally enforceable rights in the view of many Canadians. In our abiding state religion of secular humanism, people believe they (like little gods) can imitate the Book of Genesis and speak rights into existence.
This is a fundamental error in our positive system of law where all rights—like crimes—are codified. There is no right unless it is recognized and written down by a public law-making authority, usually a legislature. Most Canadians tend to aggrandize their rights. In almost forty years of teaching post-secondary students, I have found the pervasive sense of legal rights entitlement to be the most intractable, and therefore one of the most difficult to dislodge and correct.
Now the Covid-19 pandemic presents a prime opportunity to accurately discern our Charter rights. It comes in the current context of vaccine mandates across the country.
No Constitutional Rights Against Private Parties
All legal persons—corporate and individual—enjoy the rights set out in the Charter of Rights and Freedoms, as they apply to them according to the right and freedom. However, what is equally important is that we have no burden whatsoever to guarantee any Charter rights to others. It is a classic Canadian thing – all rights, no obligations.
Section 32 of the Charter and judicial decisions spanning more than three decades make it clear that all structures and agents of the federal, provincial and municipal governments, as well as all entities that are essentially governmental in nature, are the only ones who must ensure these rights. Employers (unless they are governmental), clubs and private companies have only rights and no obligations to anyone under the Charter.
This makes sense since private parties cannot in any event guarantee anyone democratic rights (such as the right to vote, or to stand as a candidate in elections) nor mobility rights to “to enter, remain in and leave Canada” (section 6), nor the range of legal rights such as “life, liberty and security of the person (section 7) or protection against the state’s unreasonable searches or seizures (section 8). At most, governments can (and do) devolve to private parties such as businesses, employers and residential landlords the obligation of equality and non-discrimination toward individuals doing business with them. Some Canadian governments have extended their vaccination mandates down through the private sector on public health grounds, similar to non-discrimination mandates on public policy grounds, but that is outside the scope of this essay.
This is the full answer to those Canadians who protest that the local restaurant or saloon, or professional football team barring them entry, is violating their constitutional rights: these private establishments and organizations owe you no constitutional rights.
No Rights Are Absolute
One hopes that the current pandemic will teach this critical threshold reality of constitutional rights on a massive scale across Canada. If not, the second shoe to drop will be the lesson that no Charter rights are absolute. In a culture where truth seems increasingly relative, the play of constitutional rights is quick to oblige. Even if government or one of its agents infringes a Charter right, it may be ‘demonstrably justified’ in doing so under the second branch of the nuanced analysis (section 1). It will be insufficient to merely assert that one’s right has been infringed. One will also have to show that this was done by government beyond what is necessary in the public interest.
This will not be easy. As of today, there are well over 20,000 judicial decisions reported in Canada relating to the Covid pandemic. Virtually every one of them, and all of the most important ones, have fallen in line with the governmental and public interest.
More pithy than the howler emoji, this is the answer to the widespread lament about the death of constitutional rights in the Covid era in Canada. The good news is its ability to inform to an extent that few other events are capable, if Canadians are open to learning.