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.

'Progressivism' Versus Progress

A cry is going up across the world— in Cambridge England, in Germany, and above all in Canada. It’s the cry heard down the ages from the Common People, the Reasonable Person, the Over-burdened Taxpayer, the Forgotten Man, the Silent Majority, and whoever is feeling his shoes pinching and his belt tightening. That cry today is more puzzled and poignant than usual because it expresses bafflement as well as indignation.

That cry is: “What the hell’s going on?”

The note of inquiry is entirely justified. Last week some hooligans (in Newspeak: protesters) invaded Trinity College, Cambridge and dug up its famous lawn, carting off the soil and dumping it in Barclay’s Bank. They were activists from Extinction Rebellion, or XR, a group of Green extremists, who argue that since there is a “climate emergency” that will destroy humanity, civilization, and the world in about a decade, they will take direct action now to obstruct and punish companies and institutions that “profit from” the emergency.

Their justifications for this ecological vandalism—the Trinity lawn was itself a symbol of environmental stewardship over centuries—both vary and multiply.

In this case the protesters were angry both because Trinity has investments in “fossil fuel” companies and because it had sold land to the Port of Felixstowe which might be used for a car park. Half of Britain (and most of the world) depends on fossil fuels for their energy. Industry and individual car-owners depend on car parks in order to move goods and themselves around the country. All these activities are legal, and the government regulates them to ensure that, as far as possible, they don’t impose unwanted costs on third parties or the general public. XR’s vandalism, on the other hand, imposed quite serious costs on Trinity, Barclay’s, the people living in Cambridge, and not least the environment.

Two days later, while the public outrage was still fresh, the protesters added a new complaint: the university had sold land for developers to build housing. The project in question had been designed to be environmentally sustainable. The claim of sustainability did not save it, however, because it was to be sold at a unit price of £385,000 that could only be bought by wealthy people.

A quick check via Google shows that £385,000 is lower than the average price for a Cambridge house which is a little over £388,000. So, in principle, Extinction Rebellion is opposed to building sufficient housing in Cambridge for a rising population. If XR runs out of specific justifications for its vandalism, however, that won’t really handicap it. Any extended discussion of XR’s aims invariably climaxes with its call to end “capitalism” which in XR’s ideology is the cause of all environmental ills.

Yet even a brief glance at the history of the Soviet bloc would show that it had a far worse environmental record than any Western country. Two examples from its last days suggest the ecological consequences of replacing capitalism with “socialism”: the pollution of Lake Baikal so befouled with chemicals that it actually caught fire—and the breakdown of the Chernobyl nuclear reactor (recorded in a brilliant dramatized HBO miniseries.) Chernobyl’s breakdown scattered nuclear fallout over a large region but it was concealed for a time by a managerial bureaucracy anxious to protect the good name of Soviet nuclear power. Such risks inevitably grow when a Politburo which manages industry consists of the same people who appoint the regulators and dictate coverage in the media.

If it makes you happier, by all means call them “the People.”

 

Nevertheless, the environmental history of socialism provides a very weak argument for getting rid of capitalism. Yet, it is where most solutions to the climate emergency end up and, not coincidentally, where they begin too.

Why so?

XR’s multiplication of justifications for their hooliganism is explicable when you realize that their predictions of doom keep not happening. And when any particular doom doesn’t happen, the climate seer needs to invent another likely catastrophe to justify his activism. Dr. Madsen Pirie, founder of the Adam Smith Institute in London, gave a fairly comprehensive list of such predictions here.

Of course, Pirie was writing in 2014; the list will be longer now. But however often the predictions are falsified, the soothsayers never admit error. Like the religious lunatics who assemble on a mountain to witness the Apocalypse in this Peter Cook sketch, their conclusion is always: “Okay, next week, same time, same place. We must get a winner some time.”

This combination of hooliganism and hysteria is happening not only in Cambridge. Similar protests erupted recently in Germany where the local XR activists were trying to halt the building of a factory that will manufacture electric cars. (Such are the contradictions of climate emergency ideology.) Parts of London have been repeatedly brought to a halt by XR demonstrators who have glued themselves to streets and police vehicles in recent months to demand a change in government energy policy from its current enthusiasm for carbon reduction to monomaniacal passion on the topic. And as readers of The Pipeline know better than anyone, half of Canada has been effectively immobilized by protesters who block railroads and highways in a campaign of forceful obstruction to prevent a pipeline that has passed every legal, democratic, and indigenous test laid down by governments hostile to it.

All of these cases of activism, though described as “non-violent,” involve the use of force to prevent individuals and companies going about their lawful business or simply going about. This is worth pondering. If protesters leave others only a choice between using force of their own to overcome obstruction or abandoning their lawful business, it is false to describe the obstruction as non-violent. Obstruction is itself a kind of tame violence—which is why laws in every country prohibit it. And why the police are required by law to intervene, prevent the obstruction, and enable the general public to live their lives.

Which brings us to a curious aspect of these protests—namely, the passive (and sometimes active) cooperation of the police and governments with the protesters. In Cambridge the police discussed with XR protesters which roads should be closed; they were on hand to see that their obstructionism observed the agreement; and they stopped members of the general public from removing the obstacles erected (one of which forced an ambulance to turn back.) They took no action to prevent the digging up of the Trinity lawn. Nor does Trinity seem to have requested their intervention. And though they have since brought charges against people suspected of offenses in these cases, that was probably in reaction to the angry and widespread public criticism of their previous inaction.

Earlier that inaction had been defended by a police spokesman on the grounds that legislation gives police a duty to superintend political protests. That seems right. But commonsense suggests that it means they should regulate such protests rather than assist them to gain their objectives. Laws also require the police to enable ordinary citizens to go about their lawful business unhindered. Taking those two duties together, they require police to regulate protests in such a way as to enable citizens to go about their lawful business. If it comes to a choice between those two duties, helping members of the public should come ahead of enforcing the will of activists upon them.

In the case of Canada, an entire government has been wobbling nervously for more than a week in order to avoid enforcing public order on left-wing and environmentalist constituencies whose support it is reluctant to lose. Only when those defending the pipeline failed to surrender in a timely fashion did the Trudeau government move—still nervously—to require that the law and the democratic decision making process it supports be upheld. And as to that, we’ll see.

For the moment, these different but similar events illustrate the degree to which our political life throughout the West has been changed by the cultural conquest of our institutions by progressive ideas. Under progressive governments which sympathize with the protesters, of course, but also under conservative governments which fear to challenge a respectable orthodoxy even when it breaks the rules that are supposed to govern everyone.

That conquest, which had already taken over the HR departments of corporations, the media, and even the armed forces, has now spread to the police who seem to have imbibed the silliest sociological ideas of the last few decades. In these cases they apparently have decided that the police should, where any choice exists, side with the protesters against society—even when, as here, the protest movement is unusually “white”—against the respectable classes who bear the odium of keeping society’s rules, obeying the law, and seeking change only through democratic channels. It looks liberal, but it is really a form of anarchy. And an anarchic police force is not something to treat lightly. It is odd and perhaps sinister.

Which is why people say: “What the hell is going on?”