Freedom Fighting During a Pandemic

Go read Leonard Cohen’s “Moving Into a Period” in his Book of Longing. Cohen foresaw how our present pandemic bewilderment would beget authoritarianism and captivity, amid best epidemiological efforts. Our elected authorities could do worse than to dwell on some artful prophecy, rather than increasingly dwelling on subjective constructs of correct conduct; rather than breathing in too much fear, and exhaling a peculiar version of order.

As Cohen wrote, amid chaos “the public yearning for Order will invite many stubborn uncompromising persons to impose it. The sadness of the zoo will fall upon society.” The thirst for control and order begets more rules, more breakable rules, more rule breakers, and still more rules to punish the growing rule breakers, at which point this isn’t about COVID. It’s Rudy Giuliani BS about broken windows and bad guys, when it’s supposed to be about preventing and treating an illness.

Meanwhile, it’s difficult to distinguish between the finger-wagging sneers and democratically accountable legal orders that can be reviewed by the judiciary to ensure constitutional compliance. The breath-taking restrictions on our Canadian freedoms are piling up. Among them, we see our authorities begin to drift from the solid ground of public health justifications, towards a panicky model of suppression. Police stopping people and vehicles for no good reason; those living on or near the streets regularly harassed, carding is back in Ontario; official snitch lines are set up to enable rage; prosecutors stubbornly fighting epidemiological facts in the name of speculative risk to public order, filling prisons in need of evacuation; refugees subjected to conditions worse than a kennel; and the state clomping into the dining rooms of the nation to break up a Passover sedar.

We know from China how it goes. We know the price paid to get there. Suppression over liberty, without any accountability. A rushed, sketchy amputation of human dignity, but most patients survive. We’ve taken longer but we’re going there fast. When that curve starts bending back, will our authorities be held to account for over-reaching? I wouldn’t say that anyone celebrates the 1970 October Crisis as a triumph of anything but overreach, panic and bravado. So the federal War Measures Act was all but gutted, only to spread like a virus to provincial legislation across Canada. Ah, federalism.

What’s needed today is an adjustment by those in authority, to bring about greater emphasis on each new restriction meeting the constitutional tests of public health necessity and rights proportionality; based on solid evidence, not anecdotal and social media reportage, nor police intelligence alone. At no point should any government response to COVID be about anything but epidemiology. Not obedience to the elected (c’mon people!) and public order, lest the means becomes the end.

And pull back the curtains. Our authorities can better share their work behind closed doors, illuminating the scientific necessity of each new restriction; expressly laying out the balanced means to achieving the public health ends. They could occasionally stand with public health professionals and those charged with safeguarding our rights, like Chief Privacy Officers and the like.

Governments need to appreciate that most enforcement authorities are hammers, for which everything is a nail. So the rule-makers must better support the use of police and by-law officers primarily to educate and warn. Charging should only be a last resort measure, as the Canadian Association of Chiefs of Police recently stated. If carding, at least keep all that info in a public health lockbox, away from criminal investigations, and destroyed thereafter.

I learned from a decade elected that the nature of power is also like a virus. Public trust is earned, not once and for all, but continually through action, not promises. I don’t trust authorities because that’s my job but also because it’s their job to operate within the rule of law. Because the elected are not deities but lucky people with jobs today, in a democracy governed by a constitution. Today, doing their democratic job does indeed involve shrinking freedom, with the awesome power of the law. But why, when and how that’s done matters.

Michael Bryant is the Executive Director of the Canadian Civil Liberties Association and was the 35th Attorney General of Ontario.