Taking the attitude “who am I to judge” is, under many circumstances, appropriate and admirable. There is one circumstance, however, when it is extremely inappropriate and reprehensible. That is when you are a justice of Her Majesty’s bench before whom one person or group has brought another person or group, complaining that the latter has injured them in violation of the law and asking you for redress of their wrongs. If you happen to be in that situation then your job – your only job – is to hear the case, weight the evidence, and issue a ruling, in short – to judge. To plead humility as an excuse for not doing so is to abandon your duty.
Earlier this year, in the late spring, Chief Justice Glenn Joyal
of the Court of Queen’s Bench of Manitoba heard evidence that lawyers
representing the Justice Centre for Constitutional Freedoms presented on behalf
of the Gateway Bible Baptist Church in Thompson, along with six other
congregations, two ministers and one other individual in two related but distinct
constitutional challenges to the provincial bat flu public health orders. (1)
One of these challenged the sweeping powers with insufficient accountability that
had been given to the Chief Public Health Officer. The other
challenged portions of the public health orders themselves on the grounds that
they violated the fundamental freedoms named in the Charter of Rights and
Freedoms in such a way as could not be justified by the “reasonable limitations”
clause of the Charter’s Section 1. The evidence in these
challenges was heard in May. After taking the summer to deliberate
or take a vacation or go for the world’s record in thumb twiddling or whatever,
last week on the twenty-first of October Chief Justice Joyal finally ruled in
these cases. For the purposes of distinction the ruling with
regards to the constitutionality of the powers of the Chief Public Health
Officer will be called “the first ruling” and the ruling with regards to the
constitutionality of portions of the orders will be called “the second ruling”.
The Chief Justice ruled against the applicants in both
cases. In one sense, however, the second ruling could be
called a non-ruling. In paragraph 292 we find the following:
I say that while recognizing and underscoring that fundamental
freedoms do not and ought not to be seen to suddenly disappear in a pandemic
and that courts have a specific responsibility to affirm that most obvious of
propositions.
This is very good and right. The problem is that the
next sentence begins with a “but.”
Apart from the bad grammar involved – Chief Justice Joyal is old enough
to have still had the rule never to begin a sentence with a conjunction like “but”
drilled into him in grade school – buts have this nasty habit of leading into
material that completely negates everything that precedes the “but”. Here is what followed:
But just as I recognize that special responsibility of the courts,
given the evidence adduced by Manitoba (which I accept as credible and sound),
so too must I recognize that the factual underpinnings for managing a pandemic
are rooted in mostly scientific and medical matters. Those are matters that
fall outside the expertise of courts. Although courts are frequently asked to
adjudicate disputes involving aspects of medicine and science, humility and the
reliance on credible experts are in such cases, usually required. In other
words, where a sufficient evidentiary foundation has been provided in a case
like the present, the determination of whether any limits on rights are
constitutionally defensible is a determination that should be guided not only
by the rigours of the existing legal tests, but as well, by a requisite
judicial humility that comes from acknowledging that courts do not have the
specialized expertise to casually second guess the decisions of public health
officials, which decisions are otherwise supported in the evidence.
This constitutes an abdication of the very responsibility he had
just acknowledged. If fundamental freedoms still exist in a
pandemic, and it is the court’s special responsibility to affirm this, this
means that the court cannot defer to the public health authorities, the medical
experts, on the question of whether their own measures are reasonable and
justified. If civil authority A is accused of trampling on the
public’s fundamental freedoms, and the court defers to the expertise of civil
authority A on the question of whether the latter’s actions are reasonable and
justified, this translates into “civil authority A can do whatever he sees fit,
there are no limits on his powers to which the court will hold him
accountable”. Indeed, saying that courts should be guided not
just by the “rigours of the existing legal tests” but a “humility” that forbids
them to “casually second guess” the decisions of public health officials is
tantamount to saying that medical science is a higher authority than the
law. (2)
In the sections of the ruling that immediately follow the
paragraph from which we have quoted, we see what this “judicial humility” looks
like in practice. In these pages Chief Justice Joyal considers the
question of whether the public health orders meet the standards of the Oakes test.
The Oakes test was established by the Supreme Court of Canada
in 1986 to determine whether legislation or other government action that
infringes upon Charter rights and freedoms is nevertheless permitted under the
“reasonable limitations” clause. To pass, the
infringement must first be shown to serve a “pressing and substantial
objective”. Second, the infringement must be show to be
proportional, which means that it must a) be shown to be rationally connected
to the objective, b) be shown to only minimally impair the right(s) and/or
freedom(s) in question and c) be shown to provide a benefit to the public that
is greater than the harm done by impairing the right(s) and/or freedom(s).
(3) For each of the stages of this test, the Chief Justice
essentially takes the position that because Brent Roussin decided, after
weighing all the information available to him, that each public health order he
issued was what was necessary at the time, therefore the orders meet the
standards of the test. Such a ruling in effect declares that
Brent Roussin, as Chief Public Health Officer, is above the law insofar as he
is acting in the capacity of his office. If the court defers to him
as to whether his actions in the capacity of his office meet the standards of
constitutionality set in the Oakes test or not, then he is
above the Oakes test and the Charter and cannot be held
accountable to either.
The ramifications of this extend far beyond the issues pertaining
to the public health orders and the pandemic. What it means is that while
we remain in form the country that we were, governed by a parliament under the
reign of a constitutional monarch, in which Common Law and Charter nominally protect
our rights and freedoms, in actual practice we have become a medical
technocracy.
Anyone inclined to think that this is a good thing, or even a
tolerable thing, is invited to consider the words of C. S. Lewis:
Of all tyrannies, a tyranny sincerely exercised for the good of
its victims may be the most oppressive. It would be better to live under robber
barons than under omnipotent moral busybodies. The robber baron's cruelty may
sometimes sleep, his cupidity may at some point be satiated; but those who
torment us for our own good will torment us without end for they do so with the
approval of their own conscience. They may be more likely to go to Heaven yet at
the same time likelier to make a Hell of earth. This very kindness stings with
intolerable insult. To be "cured" against one's will and cured of
states which we may not regard as disease is to be put on a level of those who
have not yet reached the age of reason or those who never will; to be classed
with infants, imbeciles, and domestic animals. (God
in the Dock, 1948)
This description fits the rule of medical technocrats to a
tee.
That a de facto medical technocracy is inimical
to the freedom that permeates our parliamentary form of government, our
constitutional monarchy, and the Common Law is the real issue at the heart of
the other challenge. This was the challenge to the
constitutionality of the provincial legislature’s having named Brent Roussin
dictator, with Jazz Atwal as his Master of Horse, for the duration of the
pandemic, which had to be framed, of course, as a challenge to the sections of
the Manitoba Public Health Act (2009) which provided for this
situation. These are sections 13 and 67. Section 67
empowers the Chief Public Health Officer to take special measures if he
“reasonably believes” that “a serious and immediate threat to public health
exists because of an epidemic or threatened epidemic of a communicable disease”
which “cannot be prevented, reduced or eliminated” without the special
measures. Section 13 allows him to delegate his own power under the
Act to a deputy.
Chief Justice Joyal ruled that this two-fold delegation of
power, first from the legislature to the Chief Public Health Officer, second
from the latter to his deputy was constitutional. In the course of
explaining his decision he made a number of statements that suggest a troubling
sympathy with the technocratic impulse of the age. He gave his
approval to the province’s claim that with the “emergence of new threats such
as SARS, West Nile, monkey pox and the avian flu” it was important that the
government focus on the “modernization of the PHA”. The
modernization of the Public Health Act, that is to say, bringing it in line
with contemporary trends around the world, means making it more
technocratic. In this context the Chief Justice asserted with regards
to the centralization of the public health system in the person of the Chief
Public Health Officer that:
the act sets out the powers afforded to public health officials to
address communicable diseases and importantly, it also constrains those powers
so as to ensure an appropriate balance between individual rights and the
protection of public health (first ruling, 12).
Does it ensure such an appropriate balance? As this is
the quod erat demonstrandum, this forthright assertion of it would
seem to be a classic example of petitio principia, especially when
we consider the weakness of everything that was then put forward in support of
the assertion. After providing quotations from speeches in the legislative
assembly at the time the new Public Health Act was being debated that show that
the legislators acknowledged the need for such a balance, the Chief Justice
finally specified the constraints this Act supposedly places on the powers it
gives to the Chief Public Health Officer (first ruling, 17). Not a
single one of these is a real check that prevents the office of the Chief
Public Health Officer from being corrupted into a medical technocratic tyranny
by the excessive emergency power vested in it.
The first of these is that the official must believe there is a
public health emergency that requires special measures to be taken.
The third is that the orders require the prior approval of the Minister of
Health. The fourth is the stipulation in section 3 of the Public
Health Act that the restrictions on rights and freedoms of the special measures
be as few as possible, the equivalent to the “minimal impairment” requirement
of the Oakes test. In practice,
the attitude of deferral to the specialized medical expertise of the Chief
Public Health Officer on the part of the Minister of Health ensures that none of
these constitutes a real constraint. The sixth, which is that the
Chief Public Health Officer must be a physician, is a limit on who the Minister
of Health can appoint to the office not a limit on use of the powers of that
office by the officeholder. The seventh and final “constraint”
pertains only to the secondary matter of the sub delegation of the Chief Public
Health Officer’s powers to his deputy. This leaves the second and fifth,
both of which warrant special comment and so have been reserved for last.
The second “constraint” is that under subsection 2 of section 67
“the types of orders that can be made are clearly delineated”. This
is true, but the types so delineated are so extensive that this is not much of
a limitation even without taking into consideration how much further deferral to
the expertise of the Chief Public Health Officer would stretch them.
The fifth is the stipulation in subsection 4 of section 67 that
“an order requiring a person to be immunized cannot be enforced if the person
objects.” Although this looks like a real constraint on the
Chief Public Health Officer’s powers, for several months now he has gotten away
with making a total mockery of this stipulation by doing everything short of
strapping objectors down and forcing the needle into them to compel them to be
“immunized”.
Therefore, quite to the contrary of what Chief Justice Joyal
claims (first ruling, 18) these constraints provide no real protection against
the danger of the powers the Public Health Act confers upon the Chief Public
Health Officer in a public health emergency being used to run roughshod over
our rights and freedoms. Whatever the intention of the legislators in 2009, the
Public Health Act fails to provide an appropriate balance between individual
rights and the protection of public health. Instead, it places all
the weight on the side of the latter.
It needs to be stated here that the need for an appropriate
balance between individual rights and freedoms on the one hand and the public
good on the other is a truism. The art of statecraft – politics in
the best sense of the word – could be said to reduce to finding just this
balance. The problem, at least in Canada, is that for decades now
we have only ever seemed to have heard this truism trotted out whenever someone
is insisting that individual rights and freedoms need to make cessions to the
public good. Balance requires that there also be cessions from the
public good to individual rights and freedoms. Indeed, since the
vast majority of decisions that need to be made in any complex society have to
do with the good of individuals and small groups, rather than the good of the
society as a whole, and it is individual rights and freedoms that ensure that
those making such decisions are the ones most competent to do so, which with
only rare exceptions means the individuals and small groups directly concerned,
balance arguably requires far more cessions to individual rights and freedoms
from the public good, than the other way around.
The basic assumption of technocracy is contrary to all of
this. This is the assumption that technical knowledge – the kind of
specialized knowledge in any field that qualifies one as an expert – renders
one competent to make decisions for other people if the expert’s field at all
touches upon those decisions. This assumption is laughably false –
technical expertise in one field does not translate into technical expertise in
another field, much less all fields, and it is rare that a decision requires
information from only one field. The most technical knowledge ought
to qualify an expert for is to advise people in the making of their own
decisions, not to make those decisions for them. Indeed, were we to
assume that the greater an individual's expertise is in one specialized field,
the greater his ignorance will be in all others, and the more utterly
incompetent he will be at making decisions for himself, let alone other people,
our assumption would be wrong, but a lot less wrong than the assumption
inherent in technocracy.
Technocracy is odious enough when it takes the form of the army of
civil servants, passing the endless regulations that boss people around and
tell them what to do in their own homes and how to run their own businesses, by
which Liberal Prime Ministers have so effectively circumvented the constraints
of our Crown-in-Parliament constitution in order to impose their will upon
Canadians. A medical technocracy enacted in a public health
emergency is far worse. Throughout history, mankind has been much
more often plagued by tyranny than by insufficient government power, by too
many rules than by too few, and the exploitation of emergencies, real or
manufactured, and the fear they engender in the public, is the normal means
whereby a tyrant seizes unconstitutional power. For this reason it is
imperative than in any emergency, those
empowered to deal with the emergency be subjected to even greater scrutiny and
held to even stricter accountability, than in ordinary
circumstances. This is the opposite of the attitude of deference
that Chief Justice Joyal contended for in 281-283 of the second ruling, and
which he reiterated in the first sentence of 292, “In the context of this
deadly and unprecedented pandemic, I have determined that this is most
certainly a case where a margin of appreciation can be afforded to those making
decisions quickly and in real time for the benefit of the public good and
safety.” (4)
This deference is fatal to the court’s role as the guardian of
fundamental freedoms. Chief Justice Joyal acknowledged (284),
as, in fact, did the province, that these freedoms were violated, and that
therefore the onus is upon the government to justify the violation. (5)
When the court gives this “margin of appreciation” to “those making decisions
quickly and in real time”, however, is it possible for the province to fail to
meet this onus in the court’s eyes?
Consider the arguments that the province made that it met the
“minimal impairment” requirement of the Oakes test.
Chief Justice Joyal reproduced (303) the reasons the province offered in
support of this contention from paragraph 52 of their April 12, 2021 brief.
Reason c) begins with “Unlike some other jurisdictions, there was no curfew
imposed or a ‘shelter in place’ order that would prevent people from leaving
their home other than for limited reasons”. That you cannot validly
justify your own actions by pointing to the worse actions of someone else is
something that anyone with even the most basic of training in logical reasoning
should immediately recognize. The same reason includes the
sentences “It was still possible to gather with family and friends at indoor
and outdoor public places, up to the gathering limit of 5 people” and “An
exception was also made for people who live on their own to allow one person to
visit.” Offering these as “reasons” why the public health order
forbidding people to meet with anyone other than members of their own household
in their own homes for over three months only “minimally impaired” our freedoms
of association and assembly is adding insult to injury. That is called
throwing people crumbs, not keeping your infringement on their freedoms to a
minimum. “Minimally impair” is not
supposed to mean to impair the freedom to the point that it is minimal.
Reason e) which pertains to freedom of religion is no
better. The province declared that there was an “attempt to
accommodate religious services”. The first example of this that
they gave is that “Religious services could still be delivered remotely
indoors, or outdoors in vehicles”. It seems rather rich of the
province to offer the latter up as proof that they tried to only minimally
impair freedom of religion when, in fact, the churches that offered such
services had to fight to obtain that concession.
Had Brent Roussin forgotten that he had initially banned drive-in
services when he ordered churches to close in the so-called “circuit break”
last fall?
Or rather had he remembered that it was Chief Justice Joyal who on
the fifth of December last year had ruled that drive-in services were in
violation of the public health orders before he, that is Roussin, amended the
orders to allow for these services?
Either way it is rather disingenuous of him to make this allusion
in this context.
The next sentence is even worse. “As well,
individual prayer and reflection was permitted.” So, because
he didn’t ban people from praying by themselves in the privacy of their own
homes, which even officially Communist countries never attempted, he is to be
credited for only “minimally impairing” our freedom of religion by forbidding
us to obey God’s commandment to forsake not the assembly of ourselves,
forbidding us to sing God’s praises as a community of faith, and forbidding us
from partaking of the Holy Sacrament? Indeed, what this sentence
tells us is that the person who wrote it thinks a) that individuals need the
permission of government to pray and reflect in private, b) that it is within
the powers of government to withhold such permission and forbid private prayer
and reflection, and c) government's not having done so means that their
violations of our freedom of religion and worship have been minimal and
reasonable.
Any sort of cognitive filter that allows a Chief Justice to look
at this sort of nonsense and conclude from it that the province has met its
onus of justifying its impairment of our fundamental freedoms as the minimum
necessary under the circumstances is clearly a dysfunctional filter that ought
to be immediately discarded.
Indeed, the province’s arguments illustrate the point made above
about technocracy being inimical to freedom, constitutional government, and the
balance between individual right and public good. Technical
knowledge or specialized knowledge in a field of expertise, as stated above,
does not translate into expertise in another field, much less expertise in all
fields. Indeed, it tends towards a certain kind of deficiency in general
reasoning that could be regarded as a sort of tunnel vision. It is
called déformation professionelle in French and is similar to
what is called the Law of the Instrument, illustrated in Abraham Maslow’s
proverb about how if all you have is a hammer, everything looks like a
nail. A physician’s technical expertise is in the field of medicine
– treating sickness and injury and promoting health. He will
therefore be inclined to subordinate everything else to the goals of his
profession. In an epidemic or pandemic, this inclination will be
all the more exaggerated. To a medical expert in such a situation, the
answer to the question of what public health orders constitute the minimal
necessary restrictions on fundamental freedoms will look very different than it
does to those who do not share this narrow focus.
Consider the words that George Grant in his important discussion (Technology
and Justice, 1986) of the implications of the increasing technologization
of society identified as encapsulating spirit of technological thought, J.
Robert Oppenheimer’s “when you see that something is technically sweet, you go
ahead and do it.” The significance of these words is that the
technological mind is inclined to reject external limitations, such as
those of ethics, that stand between it and the actual doing of whatever it
finds itself capable. Modern medical thinking is thoroughly
technological and Oppenheimer’s thought, translated into that of a physician
and epidemiologist overseeing a pandemic, would be "when you see that you
can slow the spread of the disease by doing A, you go ahead and do
A". A might have a thousand other effects, all negative, but
the mind that prioritizes slowing the spread of an epidemic over all other
concerns can acknowledge this and still come to the conclusion that the benefit
outweighs the harm, demonstrating that its ability to make calculations of this
sort is seriously impaired. (6)
It is absolutely essential that those charged with the duty of
protecting our fundamental rights and freedoms and holding government to its
constitutional limits, recognize how the very nature of medical expertise tends
towards the skewing of the medical expert’s perspective in this way and that
therefore he is the last person to whose opinion government ministers and
judges should defer in determining whether public health orders infringing upon
fundamental freedoms are constitutionally justified out of necessity.
For the courts to fail to recognize this is for the courts to
shirk their duty and acquiesce as our country succumbs to the tyranny of
technocracy. (7)
(2) Tom Brodbeck’s editorial commenting on these rulings for the local Liberal Party propaganda rag - or paper of record, depending upon your perspective – was given the headline “Case Closed, Science Wins”.
(3) There is an unfortunate tautology here in that proportionality is the term used for both all three stages of the second step of the test taken together and the third stage of the same.
(4) The pandemic is “unprecedented” only in the sense that the measures taken to combat it have been unprecedented in their extremity. The Spanish Flu which ended about a century before the bat flu pandemic began killed between 25-50 million people. The bat flu has killed about 5 million over the course of a similar span of time. Not only is the total of the Spanish Flu much larger than that of the bat flu, it represents a much larger percentage of the world’s population which was considerably smaller at the time. It took place at a time when health care and medical treatment options were far more limited than they are today, and yet public health orders never came close to what they are today, despite the earlier pandemic having started in a time of war when people were already accustomed to emergency restrictions.
(5) Many of the news articles reporting on these rulings have been extremely misleading. Several have reported that the Chief Justice ruled that no Charter rights were violated. This is true only in the sense that there is a distinction between rights and freedoms and that the Chief Justice ruled against there having been a violation of Section 7 and Section 15 rights. With regards to Section 2 fundamental freedoms, however, he ruled – and the province admitted – that these had been violated, and that therefore there was a burden of justification on the government to prove these violations to be constitutional in accordance with Section 1. As the discussion of Section 2 was by far the most important part of the case, to summarize the entire ruling as if it were all about the Sections 7 and 15 challenges, is to utterly distort it.
(6) Suppose that a virus is spreading which, if unchecked, will cause 10 000 deaths. The public health officer, if he takes Action B, can prevent the epidemic and all of those deaths. However, Action B will itself cause 10 000 other deaths. The number of deaths will be the same whether action is taken or not. Should the public health officer take this action or do nothing? It would be odious to attempt to resolve the dilemma by comparing the value of the 10 000 lives lost the one way, with the value of the 10 000 lives lost the other. The person who makes the case for the public health officer’s taking Action B, therefore, would have to reason along the lines that since it is the public health officer’s duty to combat epidemics and save lives threatened by disease, and the intent behind Action B would be to save the 10 000 threatened by the epidemic not kill the other 10 000, Action B should be taken and the 10 000 lost to it considered collateral damage. The person who would argue the other side would point out that the 10 000 lost to the epidemic would die of natural causes, that the 10 000 lost as a result of Action B would die as the direct consequence of human action, and that the human moral culpability for taking an action that directly results in a death is greater than the human moral culpability for not taking an action that would prevent a death by natural cause, ergo it is worse to take Action B than to not do so. Which of these two arguments is the most persuasive. I would suggest that for people who are both normal and capable of rational, human, moral thought, the second of the two arguments is likely to be the most persuasive, and that those persuaded by the first of the two arguments are most likely to be found among medical experts.
(7) That technological science was leading us to a universal technocracy which would be the worst of all tyrannies was a warning sounded frequently throughout the Twentieth Century by such thinkers as Jacques Ellul (The Technological Society, 1954, Perspectives on Our Age, 1981), C. S. Lewis (The Abolition of Man, 1943, That Hideous Strength, 1945), and René Girard (I Saw Satan Fall Like Lightning, 1999). In Canada, George Grant played the role of Cassandra on this theme, which runs through his entire corpus of work from Philosophy in the Mass Age (1959) to Technology and Justice (1986). It was central to the thesis of his 1965 jeremiad Lament for a Nation that by succumbing to the technologically driven capitalism of America, Canada was losing the pre-liberal traditions that informed her founding, and would be drawn like the rest of the world into the “universal homogenous state”, a technocracy that the ancients had predicted would be the ultimate tyranny. Technological science, as he argued in the first essay of Technology and Justice, begins as man’s mastery of nature, but progresses into man’s master of himself, which translates into his mastery of other people. He did not shrink from implicating modern medicine along with other more obvious culprits in this.
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