Now is the time to hold government accountable for infringing our rights through COVID lockdowns

1984 may finally be here. If so, it came about 36 years later than George Orwell’s prediction.

In this time of seemingly endless COVID-related lockdowns and restrictions on our fundamental liberties, it is hard not to reflect on Orwell’s 1949 novel that anticipated a future world in which people live in a one-party police state where thought is controlled, and allegiance must be provided to Big Brother.

In Ontario, the provincial government during the past year has repeatedly infringed upon some of our most essential freedoms, including the right to operate a business, attend a place of worship and even have guests over to our own home. Other than the recent and welcome instance of police forces resisting the Premier’s attempt to give the police draconian powers to enforce his stay-at-home order, however, there has been surprisingly little resistance to the restrictions on our liberties.

We seem to accept without demanding evidence from our leaders. For example, is it necessary to stop people from dining both indoors and outdoors at restaurants, even though most of these establishments have already made investments to alter their set-up dining safe? Ontarians do not even seem to mind that Doug Ford does not comply with his own stay-at-home rules, as virtually every day we can see him on television at either Queen’s Park or some other location that is not his home. It has not been apparent why the Premier cannot hold meetings and answer questions from the media on a virtual basis from his private residence. However, he is now finally being forced to do so as he self-isolates following one of his staff members testing positive for COVID. We will see how long the Premier’s self-isolation lasts.

It has been clear for some time that the message from this government is to do as we say and not as we do. Premier Ford has long called for strict controls at international borders, but this is a premier who last summer lobbied Ottawa for special rules to permit baseball in Toronto. I cannot go to New York to visit an ill relative, but the Ford government would have no problem welcoming the New York Yankees into Toronto for a weekend series with the Blue Jays at the Rogers Centre.

We now have provincial police officers guarding our borders with Manitoba and Quebec. Still, I am not aware of any evidence that suggests Ontario’s current crisis stems from the virus coming here from other provinces. Justin Trudeau once told us that “A Canadian is a Canadian is a Canadian,” but that was then, and this is now, and interprovincial travel barriers are now seemingly acceptable.

This province needed a well-thought-out and effective vaccine distribution strategy. Instead, we have policies that are at best questionably effective but result in draconian hardship. The mainstream media rarely objects that the economically vulnerable are hurt the most. In contrast, those fortunate enough to have secure jobs for which they can work from home barely feel the impact of the lockdowns (the fortunate ones may be better off because they still get their paycheck every two weeks but no longer have commuting expenses).

Is there any logic as to why I can walk into Costco and buy groceries but not a television or children’s clothing? The explanation seems that it is unfair to allow the big stores to sell all their products when lockdown policies are destroying small businesses. But does anybody stop and ponder the inevitability that retailers like Costco will lay off a significant percentage of their staff, most of whom are probably women and low-income people who rely on their employment income for survival? The “Shecession” continues, but not a word of protest from politicians who claim to prioritize women’s issues.

Court challenges have and will continue against some of these lockdown rules. Still, there does not appear to be much reason for feeling optimistic that our courts will seriously scrutinize them through proportionality analysis. It is more likely that the judiciary will show great deference to the government’s claimed purpose of keeping everyone safe during the pandemic instead of demanding evidence for why it should be illegal for youth to play a soccer game in a neighbourhood park.

South of the border, however, the American judiciary seems far more willing to strike down COVID-related legislation as overreaching. There have been recent rulings from the United States Supreme Court, for example, that have invalidated state enactments that significantly restricted freedom of religion. In February of this year, the court in South Bay United Pentecostal Church v. Newsom struck down California’s ban on indoor worship services. Justice Gorsuch, for the majority stated, wrote: “Even in times of crisis — perhaps especially in times of crisis — we must hold governments to the Constitution” (emphasis in the original).

Powerful words.