The Canadian Charter of Rights and Freedoms requires governments to justify in court any law or policy that violates one or more of our charter freedoms of association, assembly, religion, conscience, mobility and expression, or that violates our right to privacy and bodily autonomy. Unless the government can provide persuasive evidence to show that its law or policy is doing more good than harm, Canadian judges are morally and legally obligated to strike down laws that violate citizens’ rights and freedoms.
Sadly, some judges ignore the evidence placed before them when approving government violations of charter rights and freedoms.
In November 2023, the Ontario Superior Court of Justice upheld the Ontario government’s total ban on all outdoor gatherings as a justified violation of the charter freedom of citizens to assemble peacefully. Ontario’s 2021 ban on outdoor gatherings was extreme, making it illegal for as few as three people to meet outdoors, even if standing six feet apart from each other. Despite the absence of a sound medical or scientific basis for this extreme policy, the court ruled in favour of the Ontario government and against former MPP Randy Hillier. The court upheld Ontario’s policy without considering seriously the very real and very grave harm that lockdowns inflicted on millions of people.
The Bardosh expert report relies on 150 peer-reviewed Canadian studies representing hundreds of Canadian scholars, using data collected in 2020 and 2021. The severe and alarming harms of lockdowns were well known by April 2021, when Ontario imposed a total ban on all outdoor gatherings, including peaceful political protests.
The Bardosh expert report references and relies upon numerous Canadian studies showing that lockdowns caused huge increases in anxiety, panic, depression, loneliness, insomnia, worsened sleep quality, suicidal thoughts, deliberate self-harm, social conflict, and the consumption of alcohol and cannabis. There was a corresponding decline in life satisfaction, optimism, community belonging, and other positive dimensions of mental health. Lockdowns made it illegal to meet the deep psychological need that every individual has for physical touch and for gathering together in person. Lockdowns harmed millions of Canadians by preventing them from attending the funerals of loved ones and thereby disrupting the healthy grieving process.
The Ontario Superior Court of Justice said nothing about these serious harms to mental and psychological health. The judge appeared to view lockdowns as a trivial inconvenience.
The court also ignored how lockdowns especially harmed minorities: those with pre-existing mental health disorders and disabilities, homeless people, those at risk of domestic violence and addiction, low-income families, indigenous and immigrant communities. The Bardosh expert report cites studies which show negative repercussions of pandemic restrictions on social groups at risk of abuse, violence, and drugs. Lockdowns also exacerbated the gender employment gap for women, and one report noted that prisoners were subjected to “torturous conditions that were psychologically harmful.”
The court made no mention of how lockdowns closed the physical spaces that vulnerable people depend on, disrupting social support networks. The lack of face-to-face meetings meant that social workers and families lost touch with vulnerable people. Lockdowns ran counter to the stated principles of equity and social justice.
The court ignored the abundant available data showing that lockdowns drove up unemployment and destroyed thousands of small businesses that were arbitrarily deemed to be “non-essential.” Politicians prohibited small businesses from competing with big-box stores that were selling the same products. In contrast, neither judges nor politicians nor other taxpayer-funded employees faced salary reductions, let alone the complete loss of employment and retirement savings. Contract workers, freelancers, self-employed persons, and entrepreneurs were excluded from government CERB and CRB benefits. Some faced the elimination of their retirement income.
The court said nothing about the data showing that lockdowns killed more people than COVID. For example, in British Columbia there were 465 excess drug overdose deaths from March-September 2020, compared to 258 COVID deaths during this period. Further, drug overdose deaths occurred mostly among those under 60 years old, while most COVID deaths occurred among those over 60. This exacerbated the real impact on years of life lost, which is the scientific criterion used prior to 2020 to measure the impact of diseases and other causes of death on overall population mortality.
The court made no mention of the suffering of the elderly, many of whom were harmed mentally and physically by prolonged isolation in long-term care homes.
The court paid no heed to the fact that Canadian children and adolescent are highly dependent on structured outdoor and sports activities to live a healthy, active lifestyle. Lockdowns closed gyms, parks, and structured sports, preventing children and adolescents from visiting playgrounds and from gathering outside together. Lockdowns increased unhealthy lifestyle behaviours such as negative food, drug, sleep, and screen habits. Lockdowns caused Canadians to gain weight, which in turn contributes to deteriorating mental and physical health, with some of the long-term harms not yet known.
The Bardosh expert report showed that lockdowns also had a negative impact on the integrity of democratic institutions, democratic values, and human rights. Executive power was excessively bolstered, without adequate channels to ensure parliamentary and citizen input and accountability.
The court gave no consideration to the International Journal of Infectious Diseases study, which found that banning public gatherings, closing schools and universities, implementing stay-at-home orders, controlling travel, and restricting business hours did not mitigate the transmission of COVID in Ontario and four other provinces in the fall of 2020.
Contrary to the charter’s requirement, the court simply ignored the contents of this Bardosh expert report about lockdown harms, all while upholding the government’s violation of charter rights and freedoms. Without explanation, the judge made the strange and unfounded assertion that Dr. Bardosh is “not a public health expert.” The judge did not weigh the strength and merits of the government’s evidence against the strength and merits of the Bardosh expert report. He ruled in favour of Ontario, declaring that the total ban on all outdoor gatherings was legitimate, without analyzing the competing and conflicting evidence that was put before him.
Such is the state of courts in Canada, when they are asked to defend the charter rights and freedoms of Canadians.
