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COVID in the CourtsCOVID in the Courts

COVID in the Courts

Peter Stockland speaks with lawyer John Carpay, of the Justice Centre for Constitutional Freedoms, about looming legal battles on pandemic-driven infringements of Charter rights.

Peter Stockland
5 minute read

It’s tempting to paraphrase a quote about the weather often (mis)attributed to Mark Twain as a summary of our COVID-19 year: Everyone keeps talking about the pandemic but no one’s doing anything about it.

We must not lead ourselves into that temptation. First, it’s untrue. Second, it’s repetition as an untruth insults those in health care and elsewhere who’ve worked feverishly over the past 12 months to care for the COVID-afflicted, and to minimize the virus’ spread. Third, it glosses over the argument that while governments of all stripes have been antically involved in the anti-COVID campaign, the “doing something” they’ve done has been unwaveringly wrong.

Not everyone accepts that argument, of course. Some, however, not only accept it but vigorously and frequently say it out loud. One of their number is John Carpay, president of the Justice Centre for Constitutional Freedoms.

Carpay is prepared to do the talking in court as he and the JCCF press ahead with legal challenges in five provinces to the shutdowns, lockdown, masking orders, and other measures governments have mandated since last spring. In a recent interview with Convivium, the Alberta-based lawyer says the group acknowledges that some temporary restrictions in mid-March were justified. They were based on the potential lethality of the virus with scant hard data to determine its real nature.

That was then, this is now, and nothing supports the continued infringements on Charter-protected freedoms, he says.

Read the fifth article of Convivium's COVID-19 series: In these days of pandemic disorientation and fatigue, uncertainty over the right thing is all right but failure to be good neighbours will be more toxic than the disease itself, Travis Smith writes.

“Governments just have not made the case based on facts and data that the ongoing and possibly permanent violation of our rights is justified in a free and democratic society,” Carpay tells Convivium. “In a sentence, one could say governments have failed miserably in justifying the violations of our freedom.”

In claims pending in B.C., Alberta, Saskatchewan, Manitoba and Ontario, the JCCF will argue, at least in part, that lockdowns and other ills of life under COVID are massive overreaches given the ubiquitous asymptomatic nature of the virus.

“We’re not arguing that an asymptomatic person can never spread the virus. But the evidence our experts point to says asymptomatic people are not significant spreaders of the disease. If that’s true, then all of the social distancing and mask wearing and school closures and gym closures and restaurant closures are useless and harmful.”

Carpay contends the policies of the last 10 months are based “purely on guesswork” derived from “wildly inaccurate” models being fed to politicians who don’t understand the data. What they do understand is public pressure to, well, do something. Again, he argues, that “something” has led to unacceptable infringements of freedom, especially against age cohorts at minimal risk of contracting COVID.

“The claim made (last) March was that large numbers of young, healthy people would suffer permanent health damage. The data shows that is simply not true. It makes a great media headline when the occasional younger person suffers lung damage but people forget that the annual flu and all kinds of illnesses inflict permanent damage on small numbers of young people. That’s the reality of living in a world that has viruses and illnesses.”

A far more acceptable and effective approach would have been careful targeting of demographic segments truly at risk, e.g., those with three or more serious health conditions and those over age 70, he insists.

“Politicians are still in a state of panic. The reality is 75 per cent of deaths are among elderly people with (multiple) serious health conditions. In Alberta, the number of people dying of COVID that had zero comorbidities is 2.5 per cent.”

Such failure to properly target COVID care is no mere fun with numbers statistical debate. There’s an economic aspect in the misspending of hundreds of billions of tax dollars for income supports across the population when quarantine accommodation for those at high risk could have been provided for a fraction of the cost, he says.

“You could also take very stringent measures to protect nursing homes without locking down the entire population.”

Deeper still, Carpay sees the cumulative conditioning effect of government measures that have so far met little resistance despite their erosion of freedoms. He is careful to make clear he is not conjuring cabals of Canadian politicos gathered to plot making us all puppets of the State. He points instead to what might seem minor shifts in language during the pandemic, but indicate a passive forgetting that liberty is at stake.

“These (restrictive) measures enjoy very strong support among the majority of the public. But what’s holding the support in place is the perpetuation of fear from hyping meaningless and irrelevant ‘case’ numbers. Ten months ago, the word ‘case’ (in medical terms) meant somebody who was sick. If a particular province on a particular day had 5,000 flu cases, it referred to sick people, not someone who might have remnant traces of a dead flu virus in their bodies.”

Now, the word is used in headlines and by authority figures to refer anyone who has tested positive for COVID despite “97 per cent being perfectly healthy, symptom-free, or even with mild symptoms but not at kind of risk.”

Carpay hears George Orwell’s warnings about the political abuse and manipulation of language when he sees such easy shedding of traditionally accepted meaning.

“It’s a blatant, shameless twisting of the English language, and people are terrified by it.”

There are groups pushing back – his is obviously one of them – and he consider them essential bulwarks against the creep of government intrusion, and the passivity of Canadians having their Charter-protected rights and freedoms trampled.

“We should take reasonable measures to protect the vulnerable, but the emphasis is on the word reasonable. Throwing millions of people into unemployment, poverty, despair, depression, anxiety, and stress is not reasonable.”

Whether or not a course of action is reasonable is, of course, a mix of opinion and judgement. Establishing the right is why Carpay and the JCCF are going to court to argue governments should heed their own data when they decide to “do something” about COVID.

“The law is a teacher. We need a reminder that we don’t all need to be very afraid just because the government is spreading a message that perpetuates fear.”

Convivium publishes texts that do not necessarily reflect the views held by Cardus, the Convivium team, or its editors. In the spirit of discussion, dialogue, and debate, we ask readers to bear in mind that publication does not equal endorsement. Thanks for reading. Join the conversation! 

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