Does government pandemic inaction violate the Charter?

Considerations on the right to life, liberty and security of the person

Governments have abandoned public health and virtually all measures designed to curb the spread of covid. This despite the fact that more Canadians have died from covid in 2022 than in 2020 or 2021, that hospitals are currently being crushed by pediatric admissions (and pediatric ICUs especially), with evidence growing that covid damages the immune system and makes subsequent viral infections from RSV and the flu significantly more dangerous (you’ll have seen claims that this is ‘immunity debt’ or the result of ‘delayed infection’, both such claims are disinformation).

Communication around the spread of covid remains disastrously poor. Most people still don’t understand how transmission works, largely because governments and public health officials steadfastly refuse to use the word ‘airborne’. It would surprise some to learn that since Omicron in early 2022, covid transmission has remained higher than any previous peak. See, for example, wastewater transmission in Waterloo Region:

One conservative analysis, drawing on reams of evidence about the efficacy of mask mandates, suggests that “If mask mandates had not been dropped, right now we could be looking at roughly 4.4 million fewer infected by Omicron, 2,300 fewer Omicron deaths, 230,000 fewer long covid cases, and of course fewer child respiratory illnesses that are currently overwhelming children’s hospitals.”

Note that this doesn’t even count the indirect deaths caused by allowing hospitals to be completely overrun, with thousands of cancelled procedures and treatments, and overwhelmed ERs. In Waterloo Region, not a week goes by where if you have to call 9-1-1, there are times where no ambulances will be available.

This is, in short, the most acute mass governance failure of our lifetimes. The lack of mask mandates is only the most egregious of the failures. We abandoned vaccine mandates when we should have extended them to boosters, which would have reduced severe illness and death (and yes, reduced transmission at least somewhat). The vast majority of kids are unvaccinated. Few people have gotten the bivalent vaccine. We failed to ensure schools were properly ventilated. We abandoned robust testing, so we don’t even have good data on just how bad things are.

And while much of the blame falls squarely on provincial governments like Doug Ford’s, and his weaselly, craven chief medical officer of health, the federal government similarly abandoned mask mandates on planes and other federally-regulated objects of oversight.

This utter lack of action is nothing short of mass homicide by neglect. It is quite literally a thousand times worse than the Walkerton tainted water scandal. And yet every institution, from governments to public health officials to universities to school boards to the news media, has decided to firmly plant its head in the sand and pretend the pandemic is over and things should be ‘normal’.

How, I ask, does governmental inaction not constitute a violation of the Charter, specifically section 7’s right to life, liberty and security of the person (and because there are vulnerable people disproportionately affected, section 15’s equality rights)?

One of the challenges that I’ve written extensively about is that section 7 in particular is generally not interpreted as requiring ‘positive action’ on the government’s part. Most section 7 cases involve people being subjected to criminal laws, and in the health or social policy context laws are usually found to infringe section 7 if they cause harm in some way. This is the case with famous decisions from the Morgentaler on abortion, to Bedford and the old prostitution laws, to Carter and the prohibition on medical aid in dying. The laws in these cases were found to violate section 7 because the government was directly creating harms through its use of the criminal law, imposing sanctions that made conditions for people harmful. These are the classic government “negative rights” violations.

By contrast, section 7 has not been found to protect “positive rights”, where government would be required to take action. Litigants have tried to argue that section 7 should require governments to provide sufficiently robust welfare protections like social assistance or housing. A majority of the Supreme Court rejected such a claim in the 2002 case called Gosselin, although it left the door open to the possibility that one day circumstances may require such positive rights under section 7.

It is admittedly somewhat difficult to characterize section 7 as a robust provision for the delivery of social services. It is a Legal Right (indeed, in the Legal Rights section of the Charter, along with rights against arbitrary detention or cruel and unusual punishment), and was not included in the Charter to protect social or economic rights. The Gosselin Court, faced with a claim about social assistance levels, probably made the correct decision.

Yet it would be incorrect to assert that the Charter only protects against “negative rights” violations, even in the context of legal rights. The state must provide minimally clean and safe conditions in prisons, for example. More broadly, the right to vote requires considerable expenditures to run fair and accessible elections, and some Charter provisions, like the right to minority-language education are explicitly ‘positive rights’ in nature.

Section 15’s equality rights have been found to require positive government action in some contexts. For example, a 1997 ruling required hospitals to provide sign language interpretation for patients when needed. I have written that section 15 can often be a major solution (pdf) to the positive rights ‘dilemma’, especially in the health care context. Rachael Johnstone and I recently extended this argument (pdf) to apply to New Brunswick’s refusal to fund abortion services outside of hospitals.

Any meaningful understanding of substantive equality surely requires the government to take action to protect vulnerable people in the context of a pandemic. For example, by refusing to implement mask mandates, colleges and universities are systemically excluding disabled and immunocompromised people from their campuses, or indeed, anyone living with disabled or immunocompromised people.

But I do think the current situation is egregious enough that it warrants revisiting the door the Supreme Court left open re: section 7. One of governments’ primary responsibilities is to keep people safe. Abandoning public health measures was government action. It was a conscious decision, made in a context where the evidence is overwhelmingly clear. There is no balancing or moral or political concerns at stake here, other than decision makers got sick of hearing from a very loud minority of conspiracy theorists and far-right libertarians.

By abandoning basic public health measures like mask mandates, governments have violated our right to life, liberty and security of the person. The supposed (imaginary) benefits of doing so are dramatically outweighed by the harms, indeed, they are grossly disproportionate. It’s time for someone to launch a legal challenge on this basis and push open the door the Court left cracked in 2002.