Covid-19 and the Poor Health of Civil Liberties

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When asked what the BC Libertarian Party stands for, I always include civil liberties in my response. However, I’ve come to realize that this term isn’t well understood. 


First of all, civil liberties and civil rights are often used interchangeably, but they’re different. Civil rights exist to ensure that individuals are not treated unfairly, e.g. discriminating in employment based on race. Civil rights apply to how citizens are expected to treat each other, as well as how the government treats individuals. 


Civil liberties are for the most part negative rights, limiting state power. In other words, civil liberties are meant to stop the government from violating citizens’ freedom to express themselves, to gather together, to move from one place to another, and to have access to justice. Property rights and the right to life are also sometimes included in the concept of civil liberties, but for the purposes of this discussion we’ll say that the right to life and property are the most fundamental rights, and that civil liberties are built on them.


In countries where the rule of law is well established, civil liberties are often taken for granted. We trust that if the police detain us, they’ll tell us what crime we’ve been charged with, we’ll be given access to a lawyer, and our guilt or innocence will be determined by an impartial court according to good principles of jurisprudence. But of course, for most of human history, and still today in many parts of the world, such rights of the accused are absent. And it’s easy to see why this is. Criminals are often despised by the law-abiding majority; “why should they have rights when they have violated the rights of others?” they ask. The answer requires a person to imagine that he has been falsely accused of a crime, and what safe-guards of his liberty he would hope were in place. But just as importantly, it requires us to realize that the state doesn’t always act impartially in the interests of justice; the state and its agents are not above pursuing vendettas, acting based on prejudice, or making self-serving power moves.


Civil liberties are meant to prevent abuses of power by the state, and the thinkers that developed this concept over the centuries in English Common Law understood that these were not fair-weather freedoms, to be discarded in a crisis. Quite to the contrary, they recognized that crises provide states with the greatest opportunity to take away the liberty of citizens, because often the public clamours for strong government measures to allay their fears. This atmosphere of collective panic presents the greatest danger to our fundamental freedoms, and so it is the time when the strongest defense of civil liberties is needed.


How has the age-old story of citizens losing freedoms during a crisis played out in our time with Covid-19? I will attempt to answer this question in the context of British Columbia and Canada, with a couple of assumptions. Perhaps these assumptions are too generous, but they’ll help us to focus on the central topic, which is how civil liberties are to be defended, assuming that most citizens believe they are worth protecting. The first assumption is that there is a Covid-19 pandemic, and that the disease represents some level of threat to human health (however exaggerated that threat may be). The second is that public officials are for the most part acting in good faith trying to limit the harm caused by the virus, however misguided their efforts may be.


Firstly, it’s important to emphasize that there would be no crisis were it not for a number of factors particular to the 21st century. Jeff Deist, President of the Mises Institute provides a useful thought experiment in this regard. He asks us to imagine ourselves in the world as it existed in the late 1980’s, and what the reaction to a virulent new coronavirus would have been, given the level of global interconnectedness and media technology that existed at that time. It’s possible that aside from a few news reports of an epidemic in a province of China at the beginning of the year, reports in the spring of a spike in respiratory illnesses in Italy and Iran, and some speculation throughout the rest of the world about a worse than normal flu season, there would not have been much coverage of the virus. Certainly, it would have been much more difficult to identify the spread of this disease as a global pandemic, and even if it had, without 21st century levels of mainstream media coverage and sharing of news via social media, it would have been difficult to create the fear storm that we were hit with in March 2020.


With the 24/7 coverage of what was quickly dubbed a pandemic, we did indeed see a panic whipped up among the public. Politicians virtually everywhere else responded to the fear storm by imposing levels of restrictions on freedom never seen outside of wartime. At first, most of these did not constitute violations of civil liberties; they were most often measures such as limiting international travel, closing schools, enforcing social distancing, and forcing the closure or reduced operating capacity of businesses that couldn’t effectively practice social distancing.


There was, however, one civil liberty that was restricted pretty much right away: the right to peaceful assembly. In BC, gatherings of more than 50 people were banned by Provincial Health Order, and no exceptions were made to this order for protests, democratic assemblies, or other such gatherings for the purposes of political expression. There was also no exemption granted for houses of worship, which many believe infringes on freedom of religion (which, along with freedom of conscience, is actually the first right listed in the Canadian Charter of Rights and Freedoms), especially given that communal worship is generally considered to be part of freedom of religion. 


During crises, and particularly in war, governments often limit freedom of expression. Even the United States (in its early and most liberty-minded days) saw the passage in 1798 of the Sedition Act, which criminalized criticism of the federal government. Governments in North America did not enact any such overt restrictions on freedom of speech during the Covid-19 pandemic, however it seems that some quasi-governmental and private bodies took steps to quiet or silence voices critical of the official narrative about Covid-19 or the measures the government implemented. For example, video hosting services decided to pull the video of Dr. Pierre Kory’s testimony to the US Senate on the effectiveness of the antiviral drug ivermectin in treating Covid-19. Another example of Big Tech censorship is the suppression of books critical of the lockdown approach to Covid-19. Even more troubling may be reports of health care professionals being threatened or disciplined for speaking publicly about Covid-19 or the state of affairs inside their hospitals.


It is often said that freedom of expression is the bedrock of other civil liberties, because if citizens can’t speak out against the loss of their freedoms, states are empowered to compromise those liberties even more. And when a society no longer is able to debate one course of action vs another, putting all facts and arguments on the table, the direction that society moves will be determined by who has the most power, not who has the best ideas. 


Defenders of freedom of expression were already on their back foot when the pandemic began. This 2012 article gives numerous examples of how much free speech protections had been eroded at that time in Canada and the UK; the situation has only worsened since then. A key aspect of freedom of expression is press freedom. Canadian Journalists for Free Expression (CJFE) haven’t updated their website since 2019, but their 2017 report card shows sub-par marks in many areas. It’s fair to assume that the Canadian federal government’s decision in 2019 to give selected media outlets a $600 million “bailout” (leaving the finer details to a consortium of industry insiders and politically-connected unions) has only served to lessen the independence of journalists. So perhaps we should not be too surprised that the mainstream media outlets in Canada have had little to say about the loss of civil liberties that has come with the heavy-handed measures governments have used to combat Covid-19.


While the infringement on other types of rights, such as democratic rights, is beyond the scope of this article, it is worth mentioning briefly because the suspension of normal democratic processes in Canada has severely limited the ability of elected officials to challenge laws that violate civil liberties. In the summer of 2020, British Columbia passed Bill 19, which dramatically expands the government’s emergency powers, extending the current state of emergency indefinitely and allowing the provincial cabinet to bypass the legislature in adding regulations to any enactments. Judging by the complete absence of BC representatives from the End the Lockdowns Caucus, perhaps our MLA’s wouldn’t have put up much of a fight for our freedoms (Bill-19 received broad support from the opposition in the legislature) even if Question Period in BC’s legislature hadn’t been limited to only 7 days during the past eight months.


With the lack of opposition to the intrusions on civil liberties during the first wave of Covid-19, Canada has begun to see more serious violations with the second wave in the autumn of 2020. Quebec and Ontario implemented full lockdowns, complete with curfews and stay-at-home orders, and some Atlantic provinces also restricted citizens’ mobility. The Charter protects mobility rights, albeit with some limitations. It seems to me that measures such as curfews are arbitrary and excessive, given the existing measures such as bans on gathering and enforced social distancing. 


Regarding mask mandates, which have come into effect across Canada, they may be a violation of liberty, though perhaps not specifically civil liberties. The mandates include some reasonable exemptions for children and individuals with health conditions that make it difficult for them to wear a mask. More concerning is that the local authorities, and businesses who have been obliged by law to enforce mask mandates, are not always aware that there are exemptions, and hence assume that everyone should comply. In the absence of an official system for recognizing those who are exempt, one would expect law enforcement to tread lightly in cases where an individual has claimed that they are exempt. This has not always been the case, as this story of a hair salon owner in 100 Mile House who was repeatedly fined and summoned to court by the RCMP shows. The right to due process and the presumption of innocence are of course important civil liberties that must be considered in cases like these.


The most significant violations of civil liberties occur when the state detains or imprisons citizens without due process of law. Disturbingly, that is what the federal government’s recent order appears to authorize, as stories emerged of a Red Deer man and an Alberta woman returning to Canada being detained at undisclosed locations. Both were kept in isolation, under guard, for 72 hours, the authorities refusing to tell the individuals’ family members where they were being quarantined. They were detained when airport officials did not accept the PCR tests the individuals took before returning home. Alberta’s Health and Justice ministers have pointed out how such cases have “tested the very foundation of Canada’s peaceful, democratic society” and are calling on the feds to provide more accountability and transparency. 


It’s not just that enforcement of this quarantine order may be excessive, it’s that the order itself is unconstitutional. Forcing citizens into a government-designated isolation facility, putting them in solitary confinement, and forcing them to pay $2000 for the privilege is not just a violation of Section 9 of the Charter, it’s absurd, particularly when most returning travelers could self-isolate at home. Jailing criminal suspects without giving them access to a lawyer is a clear Charter violation, but the federal government seems to think that doing so to law-abiding international travelers is justified. The Justice Centre for Constitutional Freedoms disagrees, and has launched a court challenge.


Over the past year, the Canadian and provincial governments have limited freedom of assembly, religion, and mobility. The federal government has suspended due process for citizens returning from abroad. In my opinion it is unclear whether the government has limited freedom of expression or freedom of the press. All in all, the government response represents a large step backwards for civil liberties in Canada. 


Many people may feel that such drastic measures are a necessary evil to combat the spread of a deadly virus. Those who make that argument would do well to present evidence that measures such as lockdowns and mask mandates are actually effective in reducing infections. If they indeed are, and we agree that such suspensions of civil liberties are justified, we would still want assurance that the other harms (economic and otherwise) caused by such heavy-handed measures do not outweigh the benefits in terms of lives saved. If, once a full cost-benefit analysis of the imposition on freedoms to combat Covid-19 is done, and it turns out that from a utilitarian standpoint, the government is justified in doing so, we would still want assurance that the measures are temporary. It has been 12 months since “2 weeks to flatten the curve” and even with Canadians now being vaccinated, there is no light at the end of the tunnel. Mask mandates and social distancing could be required for 2 to 3 more years says Canada’s chief public health officer, but it’s hard to imagine what particular threshold would be crossed at that point that would allow the government to lift such requirements.


This is the thing with civil liberties: once citizens relinquish them, they are very difficult to win back. Certainly, states have little interest in tying their own hands by granting citizens greater freedom. So, governments enact laws that protect civil liberties only when courts compel them to do so, or voters give elected officials a mandate to enact legislation that enhances rather than diminishes liberty. Bureaucrats and agents of the state often push the envelope, chipping at civil liberties in pursuit of their primary objectives (e.g. containing a health crisis) until they’re told to back off. But courts and politicians are reactive in this regard; it is up to individual citizens and civil society groups to champion civil liberties. There is still time to restore the freedoms that have been lost over the past year, but we can’t wait indefinitely to mount our defence. With the passage of time, public outrage fades and government restrictions become institutionalized, and then nearly forgotten. Just look at how the Patriot Act allowed the US government to spy on American citizens. After the initial outcry about the domestic mass surveillance programs it authorized, Americans showed little resistance, and 20 years later the NSA and other security organizations are still not required to get a warrant to collect the phone and internet records of millions of Americans. We must not give up on our civil liberties so easily.


Clayton Welwood

BC Libertarian Party President

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