In Canada, Liberty at the Covid Crossroads

I live in a country that has become, for people like me, a vast internment camp. Knowing that vaccine fail is a fact and unwilling to allow an experimental infusion into my body, I have become a social leper. I cannot attend a broad range of public events, visit various facilities and businesses, or dine in restaurants. Now I find I cannot even leave the country, which is my fondest wish. Airlines, ships, and trains are all off-limits for inter-provincial and international travel. Combat-decorated pilot and CEO of Canadian Citizens for Charter Rights and Freedoms (C3RF) Russ Cooper writes, “the country has become “a police state with mandated ‘jabs’ and passports…We find our civil liberties giving way to martial law.”

I believe my rights as a citizen of a democratic state have been violated by an increasingly autocratic government. I have studied our Charter of Rights and Freedoms and consulted lawyers and constitutional experts on its provisions. I have wondered whether the Nuremberg Code applies to the government’s presumably arbitrary cancellation of our rights and privileges as citizens, and have been told by legal professionals that the relation of the Code to the Charter is a “grey area,” in part because Canada has not formally signed on to Nuremberg, and in part because the relevant sections of the Charter are subject to interpretation.

With regard to the Charter: The import of the principles in question, in particular Sections 1, 6 and 7, remain hotly contested. Section 1 states that rights and freedoms are subject to “reasonable limits.” Section 6 establishes that “Every citizen of Canada has the right to enter, remain in and leave Canada,” including inter-provincial travel, and Section 7 treats of “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” 

Rights are a grey area, citoyens!

Section 1 affords the government some latitude, given that “reasonable limits” remains a matter of interpretation—a “grey area” embedded in the very document. Section 6 is clearly being abrogated—there is nothing “grey” about it—but Section 7 can be manipulated in favor of one segment of the population (the “vaccinated”) while punishing another (the “unvaccinated”) “in accordance with the principles of fundamental justice”—although it is now known there is scarcely any difference between vaxxed and unvaxxed. Again, the concept of “fundamental justice” may be construed in any number of different ways. It’s as grey as grey gets.

What we call the “rule of law” has become distressingly controversial and unsettled. In an article for the Society for Academic Freedom and Scholarship (SAFS) Macon University Business Law professor Peter Bowal points to the weakness of the Charter as a legal document, a weakness that renders it exceptionally difficult to show that one’s rights have been infringed, especially as all-important judicial decisions relating to the pandemic thus far “have fallen in line with the governmental and public interest”—that is, the government’s interpretation of “public interest.” Section 32 of the Charter makes it clear that only the government can ensure these rights—in effect, enforce, justify and even reconceive them. Bowal’s treatment of the question is ambiguous as he seems to believe that the burden of proof for abrogation of rights legitimately devolves upon the government, trumping the individual rights claimant.

We are naïve, Bowal argues, in “embrac[ing] and fiercely cling[ing] to the rights delusion,” to assume we have “legal rights entitlement,” or, for that matter, I would add, to repose our trust in the broad-based fairness and independence of the judiciary. I would argue that the government’s interpretation of the Charter is, in essence, apodictic, which does not make its reading of “rights” right. The dilemma is profound and citizens who claim their constitutional rights apparently “have no standing” (to use a familiar legal phrase) in the view of an all-powerful government. It’s not a pretty picture.

With regard to the Nuremberg Code: Its application to considerations of domestic violations of its constituent principles with respect to scientific “experiments” performed on the human person—in particular Section I stipulating that “Voluntary consent is essential,” Section 5 stating that “No experiment should be conducted if it is believed to cause death or disability,” and Section 9 requiring that “Subjects should be able to end their participation at any time”—are not codified in national legal instruments. 

That was then, this is now.

But this inadequacy has been rectified. UNESCO’s Universal Declaration on Bioethics and Human Rights declares that “human dignity, human rights and fundamental freedoms are to be fully respected” in all public health legislation and that “the interests and welfare of the individual should have priority over the sole interest of science or society.” And as the prestigious Robert H. Jackson Center in its document on “The Influence of the Nuremberg Trial on International Criminal Law” informs us, the Nuremberg promise and precedent has finally come to pass in the creation of the International Criminal Court. The ICC, based in part on the Nuremberg Charter, with jurisdiction to try genocide, war crimes and Crimes Against Humanity, began functioning in in 1994 and was adopted by the Rome Statute in 1998.

What is especially salient in this connection is the ICC principle of complementarity, which “enacted broad-ranging criminal legislation to ensure that all the crimes within the Rome Statute are covered by domestic penal law… to maximize the potential benefits of the principle of complementarity in the event of allegations against a State’s own nationals.” The principle is notoriously complex but allows for “admissibility” protocols in cases of national failure to prosecute when prosecution seems warranted or when the political intention to prosecute unjustly is evident. “The Court holds a promise,” the Center’s document anticipates, “of putting an end to the impunity that reigns today for human rights violators.”

It is my contention that the Canadian government is precisely such a human rights violator. The “grey area” in the Charter does not seem as grey as government-friendly lawyers, go-along judges and skeptical specialists claim. According to The Epoch Times, Toronto-based litigator Ryan O’Connor believes “[t]here are several sections of the Charter that are implicated by mandating vaccines,” specifically Section 7 as well as Section 15, “which protects individuals from discrimination and that requires equal treatment of individuals before and under the law” (italics mine). 

Similarly, The Justice Centre for Constitutional Freedoms issued a statement condemning federal mandates that translate into the certainty that “unvaccinated Canadians will lose their right to move and travel freely within Canada, their right to leave Canada, and their right to earn a living and participate in society without discrimination.” Such mandates amount to “an egregious and unacceptable infringement” of our constitutional rights. As the Centre’s president John Carpay observes, “No government will violate human rights without putting forward a good-sounding justification, such as the war on terrorism, communism, online hate, drugs, or a nasty virus.”

Blame Canada.

From a combination of ignorance of the accumulating evidence calling the vaccines into serious question and the temptations of political absolutism, the government has breached the civil rights of its citizens—if civil rights are to mean anything at all. It has disregarded the moral implications of the Nuremberg Code, the tenor of the UNESCO indenture and the provisions of the ICC, despite the pious statement from the Minister of Foreign Affairs to the effect that “Canada strongly supports the International Criminal Court… as a key pillar of the rules-based international order.” 

The government has scanted both the spirit of these international instruments and the purport of its own Charter. Like other Western administrations—for example, Australia and the U.S. under Biden—it has eaten away at the foundations of liberal democracy and deliberately eroded the rule of law in everyday life understood as part of the social contract. As Ryan O’Connor asserts, “the crux of the issue is more about politics than it is about public health.” Indeed, it is more about convenient “interpretation” of laws and principles and the levying of coercive measures than about civil liberties, democratic justice and political freedoms.

Government authority, certainly in the case of vaccine mandates, does not rely on reason and debate but on the imposition of power backed by physical force and a largely complicit judiciary. It has no genuine interest in discussion and evidence and no compunction against segregating a substantial cohort of its people whom it denounces as irresponsible. Canada was never intended to be a leprosarium, but much has changed. Canada is now a dictatorial regime, in many ways reminiscent of the former Soviet Union. And the Charter of Rights and Freedoms is cosmetic cover for the enactment of political absolutism. Grey areas don’t mean much to citizens who have been deprived by government decree of their constitutional right, however moot, to participate in common life, travel, work and enjoy the fruits of now-threatened liberty.

It Ain't Over 'til the Greens Win

Lawyers specializing in migration from both sides of the barricades have a wry capsule explanation of how the law works: It Ain’t Over 'til the Migrant wins. In this explanation “wins” means “stays.”

There are American laws galore that allow the government to deport people present in the United States illegally. Why don’t they work? Well, there are also laws that enable a competent lawyer to string out his client’s deportation indefinitely until he has a wife, children, a job, a home, and a lawyer here—which almost amounts to a squatter’s right to stay.

It seems downright unreasonable to send him back to where his home used to be—at least that’s the view of the immigration bar, NGOs specializing in migration and refugee policy, media that are overwhelmingly sympathetic to migrants of every kind, all Democrats and some Republicans in Washington, academic “experts” on immigration, and so eventually of the courts trying such cases.

As the late Judge Robert Bork pointed out in his short, brilliant book, Coercing Virtue: The Worldwide Rule of Judges (AEI, 2003), modern judges implement not the law as such but a blend of the law itself and of the opinion of the law held by legal members of the highly educated upper-middle class.

That’s why the opinions of judges matter and why legal verdicts in immigration cases increasingly follow the maxim of “It ain’t over 'til the migrant wins.” And, therefore, stays.

Case closed!

Is that maxim now being transferred to law determining court cases on the environment and climate change?  That question is raised by the proliferation of court challenges to projects to extract and transport fuels, especially fossil fuels, when those projects have survived regulatory challenges from the federal bureaucracy, and even when their cancelations are likely to provoke disputes between the U.S. and other countries.

The most recent case of such judicial intervention took place in Alaska—usually a state hospitable to the oil and natural gas industry (as well it might be)—when a federal judge canceled Willow, a massive energy investment by Conoco-Phillips on Alaska’s North Slope.

Judge Sharon Gleason of the District of Alaska ruled that the environmental impact statement for Willow should have included a ”quantitative estimate of emissions resulting from oil consumption” (or explained why the estimate could not be produced) and provided better protection for wildlife including caribou.

These are interesting proposals, but they are not exactly legal judgments. They are  decisions for the political and regulatory authorities which had considered then and taken a different view to Judge Gleason. Willow had been approved by the Bureau of Land Management, supported by the Biden administration, and backed enthusiastically Alaska’s Governor, Mike Dunleavy, who is responsible to the voters for Alaska’s economic development. He responded sharply to Gleason:

We are giving America over to our enemies piece by piece. The Willow project would power America with 160,000 b/d, provide thousands of family-supporting jobs, and greatly benefit the people of Alaska.

Judge Gleason has no accountability for the economic consequences of her arbitrary judgments. She was exercising irresponsible power—or as the saying goes, legislating from the bench. Alaska voters damaged by her intervention have no way of sanctioning her for it.

Judge Gleason has spoken.

Of course, we should acknowledge that such judicial interventions sometimes favor the corporation against the regulatory bureaucracy or the decisions of lower courts. A recent example of that took place in Louisiana where a court forced the Biden administration to resume selling oil and gas leases to energy company which it had halted “temporarily” while the Interior Department reviewed them.

Higher courts may reverse that judgment on appeal—but that comes with a cost too. As the formidable columnist Mark Steyn has pointed out in the different context of libel law, “the process is the punishment.”

All these infrastructure projects are hugely expensive and take years to complete. If their approval is a constantly changing shuttlecock batted back and forth between the courts, the regulatory bureaucracy, the political world, and the industry, that will raise their costs massively, sometimes cause their cancelation, and hike the price of the final product in energy bills to the electricity consumer—who now include owners of electric cars and other electrical products. They buy such such products in order to switch from dirty fuels to greener power sources at a considerable increase in cost. That cost increase will get larger if infrastructure projects become as risky as roulette. And if you make the cost of switching heavier, fewer people will do it.

All those consequences—and more—were exemplified by President Biden’s cancelation of the nine-billion dollar Keystone Pipeline from Canada to Texas. He did this by executive order immediately upon coming into office after it had survived more than a decade of regulatory and legal challenges from the usual suspects—environmentalists, protesters claiming to represent indigenous interests, progressive billionaires: the Democratic party’s post-industrial urban base.

Par for the course, you may think. But this particular decision was unusual in two respects. In the first placed, it reversed the more common practice by which the courts override the national executive in Washington. On Keystone, Biden overrode the courts—which is usually seen by Democrats as a constitutional mortal sin. "Climate  change," however, is the excuse that sweeps all rational argument aside. Second, it provoked a serious foreign policy crisis with—of all energy-producing countries—Canada! Canadian prime minister Justin Trudeau is Biden’s ideological soulmate on energy, the environment, and much else, but he still had to take his constituents into account.

That international crisis shows no sign of abating—quite the contrary—because Michigan governor Gretchen Whitmer canceled a much more important and more established pipeline between the U.S. and Canada, apparently without really grasping the extraordinary damage she was inflicting on our friendly neighbor to the north. Here's one local report:

While the Keystone project was halted in early construction, Line 5 has transported Canadian oil since 1953. More than half of Ontario’s supply passes through it, according to [the pipeline company] Enbridge. It exits Michigan at the border city of Sarnia, Ontario, and connects with another line that provides two-thirds of crude used in Quebec for gasoline, home heating oil and other products.

I would once have thought that a war with Canada was in the realm of the impossible. But Governor Whitmer may be proving me wrong. She is threatening to confiscate Enbridge’s profits and do many other terrible things if the company continues to defy her. The federal regulator seems not to agree with the governor’s arguments that the pipeline is a hazard to the environment. Enbridge points out that all the alternatives to the pipeline would be more hazardous. The Canadians seem to be united around the defense of their own oil and gas industry since it keeps Ontario and Quebec warm in winter (and Michigan's airports operating). Local Michigan businesses are largely on Enbridge's side too. The Biden administration, which is currently digging down into a lot of holes, must be wondering how on earth it got into this hole and how to get out of it.

Game over, man.

The answer is that, as in Biden’s cancelation of the Keystone pipeline, there are far too many “authorities”—executive, regulatory, state, federal, legal—which believe that their virtuous Green ideologies give them a right to intervene arbitrarily in environmental and energy issues to reach the right outcome. Which one of them prevails is now an almost random matter. For companies contemplating multi-billion dollar projects, both negotiating with regulatory authorities and going to law in these circumstances are a little like shaking a kaleidoscope or consulting an astrological chart.

The main villain in all this is the authority that should and normally would determine fairly which of all the other authorities has the right and obligation to make which decisions on what and on what legal basis. That authority is the courts. Law should offer a reasonable certainty to companies and individuals contemplating major expenses from mortgages to investment in renewables. But it can only play this role well if it reduces to the minimum its own opinionatedness on green issues.

Unfortunately, the courts are no longer impartial umpires interpreting laws passed by Congress and state legislatures. They are moving in the direction of becoming more “green” rather than more judicial as the examples quoted above demonstrate. They have their fingers on the scales of Lady Justice. It threatens both America's prosperity and its democracy if it ain't over till the Greens win. But that's the trend.