Transcript: Joanna Baron

My interview with the executive director of the CCF, and the author of Pandemic Panic

For some time now, there have been calls for Canada to launch an independent public inquiry into its handling of the Covid pandemic — including from the British Medical Journal. But this past week, as reported by Blacklock’s Reporter, Liberal MPs rejected an inquiry, opting for a closed-door review by advisors to the Minister of Health. My guest on this week’s podcast says that it is essential that Canadians examine the mistakes that were made during the pandemic, and learn from them.

Joanna Baron is the executive director of the Canadian Constitution Foundation and the co-author, with Christine Van Geyn, of the new book, Pandemic Panic: How Canadian Government Responses to Covid-19 Changed Civil Liberties Forever.

This is an edited transcript for paid subscribers. You can listen to the interview for free here.

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TH: Joanna, welcome to Lean Out.

JB: Great to be with you, Tara.

TH: It's nice to have you on. This is a fascinating book, and I think an important one. I also want to commend you and your co-author for making really difficult and sometimes dry subject matter very readable.

JB: We're constitutional lawyers, so we find things that most people would find dry to be thrilling, but we realize that most people don't feel that way. [Laughs]

TH: I found it incredibly readable. To dive in, as BlackLock's reported last week, Liberal MPs on the Commons Health Committee have rejected a public inquiry into federal pandemic management, instead opting for a closed-door review by advisors to the Minister of Health. You write that most Canadians have memory-holed the long three years that we spent in the COVID pandemic. Your book reminded me, for instance, that restaurants in Toronto, where I live, were closed for more than 360 days over the pandemic, the longest city of any in the world, as far as I know, and schools in Ontario were shut for more than seven months [135 school days]. To start today, what are the consequences of us all forgetting what went on?

JB: Yes. I should say that part of the impetus for myself and my co-author, Christine, to write this book was — I think it was at some point in late 2021 or early 2022, we would remember things that happened, like the taping off cherry blossoms or arresting a guy who was skating on a pond in Calgary. We were just like, “Oh my God, that actually happened?” It seems like a surreal movie. I'm executive director of a legal charity, and Christine is our litigation director. If these things weren't top of mind for us, then ordinary Canadians, who have moved on with their lives, surely weren't going to remember these things as well.

As you say, it can be shocking to look at some of the facts. Yes, Toronto, Ontario had some of the lengthiest lockdowns in the world. All of these things, forgetting them is a salubrious impulse. Yes, we should move on. We should reintegrate into our lives. I think it's a very well-adapted impulse to not become traumatized. People who have remained stuck in the pandemic mindset — I'm sure you know some of those people, who still wear N95 masks outside. That's not good either.

But there is a lot of risk, in terms of our future civil liberties, to forget what we collectively — the Canadian people who largely supported many measures, politicians, judges — what happened. We will certainly be more likely to allow it to happen if we don't learn the many lessons that we think are available to learn from this collective experience.

TH: The book is organized by Charter rights, including freedom of assembly and movement and expression and religion, which you argue were violated. Can you give us a few standout examples of what you see as some of the worst violations that occurred during the pandemic?

JB: In terms of freedom of assembly, just to give a sense of how poorly the exercise of that right was balanced with public health objectives … which by the way, to be clear, we don't deny that public health objectives are important. We don't deny that it is appropriate and right for the government to take steps to reduce viral transmission. But that has to be counterbalanced with the acknowledgment of rights.

Just as a sort of high watermark at how irrational things became, we represented at one point a lone protester named Robert Bristol, who was a small business owner in Kingston. He decided to protest against Ontario's lockdown measures, by himself, with a mask on, outside of Kingston City Hall. He was arrested. He was arrested for violating a lockdown order. Now, clearly, it would be more dangerous to go to the grocery store and pick up milk than to stand alone outside Kingston City Hall protesting. The CCF represented him and we were able to argue that the charges should be withdrawn. The charges were withdrawn.

Another example that I just keep coming back to — because I think it was so wrong and also the way that the judiciary responded to the very serious violation of rights —was, and this may be something that many people have memory-holed, the quarantine hotels. Which were brought in spring and summer of 2021. Where, if you left the country by plane, you had to stay at an approved hotel facility for three days to the tune of about $2,000 while awaiting the results of the second COVID test. By the way, at the time, if the COVID test was positive, you would be allowed to go home and quarantine. Which raises the question of what was the point of paying $2,000 for this interstitial step?

The CCF, we challenged this government policy on behalf of several individuals who had to travel for very compassionate reasons. These are not spring breakers. This was a man who had to go to France to make end-of-life arrangements for his elderly mother with dementia. Another man who lived in Vancouver, whose wife lived in Washington State, who had broken her shoulder and she couldn't even wash her own hair. These were not wealthy people. These were not people for whom $2,000 was really viable, in addition to extra time off work and so on. We challenged this as a violation of the rights to life, liberty, and security of the person, and movement. The judge found that there was no even violation of rights.

In constitutional law cases, you can find that there's a violation of a right, but say that on balance, given other public policy objectives, it was justified. That's called section one. The judge neglected to even find there was a violation, and he called these first-world economic problems. I think if you're going to collapse something like your ability to go be with your mother in the days before her death as a first-world economic problem, there's a real problem. There's a real issue with how much teeth our charter rights have. I think the judiciary has a lot to answer for in particular.

TH: One of the examples that it stood out to me in the book was Shandro's law, initiated by then Alberta Minister of Health, Tyler Shandro. You say he amended the Public Health Act so that information obtained by the chief medical officer could be given to any police service. There was no debate around it, no studies or public consultation were conducted. You write that “for the first time in Canadian history, a law passed by a duly elected democratic legislature was unilaterally altered by a single politician effectively overriding democracy in an act of executive authority.” Can you comment a little bit on that case?

JB: Yes, certainly. It falls into this category, I think, that we talk about that in our chapter on democracy and the rule of law. You have this ancient concept; this comes from Cicero, actually. Where the salus populi, where public safety is in question. Basically, there's justification for ordinary democratic procedures to be sidestepped. You saw that in Shandro's law, called Bill 10 in Alberta, where there was just a direct parsing out of that. Cabinet could unilaterally make decisions without bringing them up for debate in the legislature.

Ontario did a similar thing when in summer of 2020, the formal declaration of the state of emergency from the pandemic was ended. It was replaced with something called the Reopening Ontario Act, which actually indefinitely extended the state of emergency and allowed, again, the executive to make orders to override healthcare unions. I think the impetus for that was to be able to transfer staff as necessary. Which perhaps you could say, “Okay, there was some functional justification for that.” As far as I'm aware, there's no principle that allows major decisions like that to be taken outside of the elected representatives — the legislature. This is definitely something that most people memory-holed. I memory-holed it myself.

I even memory-holed, by the way, that at the time this happened, Andrew Scheer was still the leader of the Conservative Party. Right at the outset of the pandemic, in March 2020, one of the first things the federal Liberals did was bring in a bill that would give them the power to unilaterally raise tax increases. Their justification was, “We're going to have to bring in these extraordinary pandemic support measures.” Which, of course, they did. “We need to be able to act swiftly.” There's a very strong principle that the taxation power is not something the executive can take out of debate of Parliament. You can't just say, “This is more convenient for us, and faster for us. We're going to circumvent the legislature.” Luckily, there was a big outcry from all of the other parties in Parliament, including Andrew Scheer, but also the NDP. And the Liberals walked that back. They did try for the first time in history. I'm sure there are some people who saw the rationale.

TH: I also wanted to raise the issue of what's happened to the fabric of Canadian society. One of the other things that really stood out to me in the book is the use of snitch lines. I had not remembered that — that governments were relying on citizens to enforce policies. What do you think that did to the fabric of Canadian society?

JB: It increased the polarization, I would say, from the bottom all the way up. We say all the way down, but it also went all the way up. As a reminder, I think almost every province had snitch lines. Christine, my co-author, has a funny, sad anecdote in the book. I think in the fall of 2020, she had a friend who had a birthday party for her one-year-old baby in her driveway in Toronto with five other moms and babies, socially distanced. The neighbour saw this baby birthday party taking place and called the cops. The cops showed up and broke it up. This really happened.

The same thing happened at Christmas of 2020. This one was a bit more violent, unfortunately. In Gatineau, a neighbor called and said, “I think that the family next door to me is having friends over.” The cops broke into the house and there was a pretty violent altercation.

I say it went all the way up as well, because — we talk about this in the book — that it was very clear as soon as the fall 2021 federal snap election was called that the Prime Minister was going to drive a wedge issue. The issue of unvaccinated people, people who were sceptical of public health measures, they really tried to push Erin O'Toole on not having vaccine mandates for everybody in his caucus. Of course, Erin O'Toole wasn't exactly a vaccine sceptic or anything like that. So, it was questionable.

As many people remember, Trudeau went on media calling unvaccinated people misogynists and racists. The Liberal government even brought in that fall, no doubt in connection with this election, a specific protest ban around hospitals with the argument that this was necessary to protect health care workers. When, actually, it's already a crime to prevent a health care worker from accessing their work. It was just identity politics and wedge politics.

I've heard from many people that this did a lot of damage to direct families. I was giving a talk at Concordia last week, and a student told me that he doesn't talk to half of his family anymore. I suppose because he was a 20-year-old young man who knew he was [at] risk of getting pericarditis, an adverse impact from the COVID vaccine. I'm not making any comment on that, but that was his decision. Half of his family doesn't speak to him anymore.

I think we were whipped up into a sort of frenzy. I think many people said things and made judgments and distanced themselves in ways that will have to be personally accounted for. I just really regret that it seems that our government got in on that.

TH: Let’s now talk about the truckers and the Emergencies Act, which is a huge story for Canada. Before we do that, we have a lot of American listeners on this podcast as well. Can you outline, for listeners who may not be familiar, the broad strokes of the vaccine mandates that were put in place?

JB: Every province in Canada, including ones that said that they would never bring in a vaccine mandate or vaccine passport, ended up bringing in a vaccine passport. Direct mandates, this is a little bit poorly understood. There weren't direct mandates from the Canadian government for every citizen to become vaccinated. There were mandates for federal employees. Many employers required their employees to get vaccinated. Universities brought in vaccine mandates. This is not something we ever litigated, because Charter rights are rights you have against the government. Even if the government is your employer, your relationship with your employer is an employee-employer relationship.

That was probably the most common email I got. “Can't you do something for me? I lost my job.” Of course, my heart goes out to those people. I think it's awful. There was actually a really promising military tribunal decision that found that vaccine mandates for members of the armed forces were against the Human Rights Code. This is not directly a constitutional issue. However, vaccine passports, which said you cannot go to a restaurant, go to a movie theatre — even, by the way, gather in homes, private homes above specified amounts of people — if you don't have a vaccine passport.

In particular, there were a few provinces that did this with no medical exemptions. Manitoba initially tried to bring in a vaccine passport with no medical exemptions. We did some strong letter-writing campaigns and we were able to get an amendment to that. British Columbia never had medical exemptions.

One of our major pandemic litigation projects, which is actually still ongoing, was challenging this program on behalf of three individuals who had very sort of straightforward medical reasons why they couldn't be vaccinated. For example, a 13-year-old girl named Erica, who received her first dose of the Pfizer vaccine and developed pericarditis and was told by her own doctor that it would be inadvisable to take the second dose. B.C.'s system made it so that if she wanted an exemption to go to dinner with her family, or even go out with her boyfriend, she would have to apply on a case-by-case basis. On every instance, to essentially get permission to go to the movies. Which, if you know anything about how the pace at which government moves, is not very workable. We challenged that. It was rejected at first instance for reasons I won't get into. We have appealed it. We're hoping to have that decision reversed on appeal.

Yes, vaccine passports, for a period of, I believe, almost a year — again, this goes into the mash — you had to show your medical documents to go to a restaurant. It was it was pretty surreal. I always found it sick and off-putting. It never made me feel safe. Actually, there's just been new research come out over the last few weeks from the Canadian Medical Association Journal that found that these passports, which were brought in, in part, to induce more people to get vaccinated, had almost a negligible effect.

TH: This is the climate that we were in, in this country, leading up to the trucker blockades in Ottawa. A very combustible moment in Canadian history. This has to do, originally, with the mandate at the border for truckers crossing back and forth, which was put in place late in the game. It had not been in place for the first, I guess, two years of the pandemic. Can we talk a little bit about the protests themselves? Convoy organizer, Tamara Lich, has called the protests “a love fest,” while our Prime Minister called it “a fringe minority” with “unacceptable views.” Media reports, meanwhile, raised questions about a contingent who wanted to overthrow the government and pointed to extremist participants like Pat King. What seemed to me to be missing in the public conversation around these protests was nuance. How would you describe these protests?