Baranyai: Courts deciding cases critical to us all

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They say the wheels of justice turn slowly, but grind exceedingly fine. Court backlogs already were a permanent challenge from coast to coast, before COVID-19 added a second helping of delay. Pandemic restrictions not only slowed the wheels by interrupting courthouse operations; they gummed them up with litigation over the restrictions themselves.

Fortunately, the courts are mucking through.

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The Supreme Court has declined to hear appeals over former vaccine mandates for air travellers, launched by People’s Party of Canada leader Maxime Bernier and former Newfoundland Premier Brian Peckford. The mandates applied to air and rail travel for nearly seven months between November 2021 and June 2022. Their cases already failed in federal court and on appeal; temporary restrictions ended before they were heard, making the applications moot. Moreover, unvaccinated folks had been free to avail themselves of other modes of travel, just not a sealed tube with other passengers.

Bernier is a serial abuser of public health rules. He gobbled up even more court resources with arrests for attending rallies that exceeded limits on gatherings back in 2021, when those were known as “superspreader events.” Bernier’s cause celebre did not merit the Supreme Court’s attention. It was never about freedom in any meaningful sense, but the “freedom” to act with reckless disregard for others.

The courts have spent considerably more time on the Ottawa trial of two organizers of the self-described “freedom convoy,” which overwhelmed the capital for three weeks in early 2022. This week marked a year in the criminal proceedings against Tamara Lich and Chris Barber. The co-defendants are charged with mischief, obstructing police, and counselling others to commit mischief and intimidation.

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The convoy, which began as a lawful protest against COVID-19 vaccine mandates, quickly devolved into an illegal occupation that paralyzed Ottawa’s core, and blockaded key Canada-U.S. border crossings. As the standoff stretched on, Lich famously counselled participants to “hold the line.”

Finally on Feb. 22, the federal government invoked the Emergencies Act to disperse participants. The legislation gave the RCMP jurisdiction to act where Ottawa police had failed, and the power to freeze campaign funding. The inaugural use of these powers generated reasonable public concern and merited a public inquiry.

Although the Prime Minister’s use of the Act was exonerated by the inquiry, a federal court contradicted that finding in January. Justice Richard Mosley found “the legal constraints … to declare a public order emergency were not satisfied.” The government has vowed to appeal the decision.

This is where the courts are performing their most important work. At issue is no less than the government’s ability to enforce the law. Justice Mosley ruled local police services had all the tools they needed to manage unlawful behaviour, they simply didn’t use them; therefore, no additional powers were required. The inquiry reached a different conclusion: emergency measures were justified precisely because police enforcement had failed.

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To some folks, the pandemic feels like a bad dream. They’d rather forget the collective trauma of isolation, online schooling and existential anxiety about when it all might end.

Nevertheless, these proceedings are critical to every Canadian, both vaccinated and vaccine-wary. The right to lawful protest is a fundamental pillar of democracy; we all have a stake in preserving freedom of expression. At the same time, Canadians – including some political leaders – apparently need reminding the right to protest is not absolute. Protesters are not entitled to block ambulance drop-off zones, or blast air horns around the clock. No statute permits protesters to intimidate city residents, nor poop on people’s lawns.

A civil society is governed by laws. They need to be enforceable.

write.robin@baranyai.ca

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