The Canadian Charter of Rights and Freedoms.

On rights, freedoms, and wearing masks

The Charter guarantees our rights and freedoms “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”

Corey La Berge

Over the past couple of months, I have read and heard people complaining that government restrictions in response to COVID are an infringement of their “rights.” In a time where we are inundated with a great deal of misinformation, please accept the following as the perspective of a practising lawyer.

The Charter of Rights and Freedoms, as a part of our constitution, is the highest law of the land. It does include things like the right to life, liberty and security of the person, freedom of expression, freedom of association, etc. These rights are not absolute. Government is quite lawfully permitted to put limits on our rights, and do so on a regular basis. Being required to obey the speed limit and wear a seatbelt or a helmet is arguably an infringement on our liberty. Likewise when we are incarcerated or subject to a probation order for committing a crime. However, the very first section of the Charter provides that the Charter guarantees our rights and freedoms “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Governments can impose limits on our rights and freedoms, and do so on a regular basis. We can’t simply claim freedom to do as we wish. In exchange, we receive the benefits of living in a reasonably peaceful and orderly democratic society. Our tax dollars shouldn’t pay for the consequences of irresponsible decisions not to wear a seatbelt, or speed, not wear a helmet, or drink and drive. It is somewhat reassuring to know that people can’t rob us in our home or harm us without there being consequences to their freedoms imposed by the state.

Our provincial legislature is free to enact laws that empower public health officers to make public health orders that are intended to protect the public. Public health officers doing their best to apply evidence based decision making in very novel and difficult circumstances, are reasonably empowered to impose restrictions on our liberties. We may not always like it or agree with their decisions, but so long as the restrictions can be demonstrably justified, no court is going to find that we have a right to not wear a mask, flout rules around gathering, etc. One only needs to look to our neighbours to the east to see a province that has failed to follow the advice of their own public health officers, been too lax around imposing restrictions, only to be confronted with unnecessary deaths, suffering, overworked and over run hospital staff, and conversations about opening Red Cross field hospitals to see that no court is likely to find the restrictions we’ve been experiencing here in BC to be unjustified or without rational connection to their objective.

As for “natural rights”, like “beauty”, these tend to be “in the eye of the beholder.” So no, you won’t find me endorsing, nor will you find any court endorsing, a “natural rights” argument that we are being treated unfairly or somehow being violated. You can arguably claim anything is your “natural right” — as some folks who have tried to claim to be independent sovereign states have attempted to do. Natural rights support your right to be a vigilante, steal property, or anything else you define it to do. They simply aren’t practical or realistic for any modern society. Moreover, they are easily countered by the natural rights of the rest of us claiming that it is our right to not have people in our space not wearing masks in the middle of a pandemic. Or our right not to have our families exposed to a virus you don’t know if you have or not.

One final thing. The Charter only applies against government. Charter rights do not apply in the private sector. So please don’t complain to a place of business that they are violating your Charter rights — that’s impossible. Rather, it’s the Human Rights Code that applies as against businesses to prevent things like discrimination. However, they are free to comply with public health directives and ask you to wear a mask, distance, etc. Businesses can ask you to wear a shirt, not bring in a backpack, wear a mask or whatever they like so long as they aren’t discriminating per the Code. If you want to support the economy and local business, then do as you are asked, don’t jeopardize the health and safety of owners and staff, don’t hassle them for complying with the law, and don’t expose them to being fined by trying to exercise your own personal definition of natural rights by flouting compliance.

So let’s please be kind to one another, respect one another’s distance, wear a mask and avoid gathering as we are quite lawfully and rightfully being directed.

Corey La Berge is a Barrister, Solicitor & Notary Public in Kimberley

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