26. Sam Presvelos.mp4: Video automatically transcribed by Sonix
Thank you very much. Well, first, I want to preface the conversation, and I understand it's going to be brief. I want to preface the conversation by saying I do not come to you as a constitutional expert. There are far more intellectual and accomplished charter litigation lawyers than myself. I come to you here as I think almost everyone comes to these this hearing as a concerned citizen. And by way of background, I'm actually a corporate commercial litigation lawyer, and I deal almost exclusively with business disputes. And a couple of months into the pandemic, what actually triggered my interest and curiosity and public interest litigation was the quarantine hotel issue. In my mind, like everyone, I was a little bit worried. I didn't know what to make, how to make sense of this pandemic. But when I started seeing that in a free and democratic society like Canada, we were sentencing people to stay against their will in a hotel. And it's the year 2020. I said, if I stay on the sidelines, I'm complicit in what I perceive to be something that is unlawful and undemocratic. So that's sort of the flavor that I want to give before I speak here. There's also another thing I wanted to talk about, because I get a lot of questions from people about the law and particularly the law in the era of COVID 19. And why are you not advancing certain arguments and what arguments can be advanced to defeat some of the measures that we've been talking about here today? And there's no silver bullet, individuals who might believe that there is a secret sauce or a special piece of legislation or a special way to frame a particular issue.
That's a surefire way to win is false. The reality of our Constitution for good or for bad and it's not my job here to particularly criticize it as it is to raise questions is that our rights, as the rights are in almost all in fact, in all, Western democracies are not absolute. And in Canada, our rights are prescribed by certain freedoms, by our are prescribed by certain limitations found in Section one of the charter. And the problem with Section one is that it is not strictly legislatively defined. The limitations is that if you are going to limit someone's charter rights, it must be done in a manner that is demonstrably justifiable in a free and democratic society. Well, what the hell does that mean? Why? And one of the things that I've been thinking a lot, particularly throughout my case, is where I am challenging and I have challenged the constitutionality of certain measures, is why does the language stop there? And why does the why does the language not go any further? And you might ask yourself, what do you mean? Well, let's look at this is an extreme example, but I think the extreme example is important to make the point.
If you look at Section 39 of the Canada Evidence Act, it deals with cabinet confidentiality, which has now become very prominent in light of some of the evidence concerned citizens are looking to receive from their government. And Cabinet. Confidentiality in Section 39 is very prescriptive, it's very detailed and it's very absolute. And so one can't help but wonder why those who drafted the Constitution stopped at certain vague and generalized terms and did not go so far as to establish a set of criteria, for example. And so, as we do know, a set of criteria was established, but it was not established by the lawmakers. It was established by the courts. And I take it obviously the courts do make the law in certain circumstances in the common law. But when I refer to lawmakers, if I refer to parliamentarians who are democratically elected and, you know, the the charter and Section one have have never been more important and are never arguably more important than during times of crisis. And another thought that I've had is what level of deference should the court. Give the government when dealing with a pandemic. And how should that deference be translated from the bench? Oftentimes we see time and time again I can read probably less than a third of a decision, and I kind of have a sense of where it's going, just depending on the language of deference.
And it's okay to give deference, deference in certain circumstances, but we have to question the assumptions. Right. Is it is this a particular circumstance that is worthy enough to give deference based on what we know today? So, for instance, at the beginning of the pandemic, when there's a lot of uncertainty, it's very reasonable, perhaps, perhaps not to give a lot of deference to the government. However, a counter counter view of that is maybe that's not true. Maybe during times of crisis, we hold our governments to a higher degree of accountability, because that is particularly a point in time in our history when we are most vulnerable and our collective rights as citizens mean more than ever, our rights mean the most when the threat is the greatest. And I have yet to see a conversation about that, certainly not from jurists or even from legal academia about that and and query whether charter analysis during a pandemic needs to be modified. And speaking of modification, that is one of the I would say perhaps the benefits of perhaps not being too descriptive in the Section one limitation is the charter is capable of evolution and it has evolved and in many ways it has revolved in a very functional and necessary and appropriate manner. However, the problem with being imprecise is that you're imprecise. And if we look at the Oaks test, which is again going back to the Section one, there are really four considerations which I'm sure many people here have probably heard of.
The first thing the government has to demonstrate to justify a charter breach is that the legislation in question serves an important objective. And of course, the government, it's very easy to say, and obviously it's a true thing that we want to protect the health and safety of Canadians. And I don't think anyone here disagrees with that. The question becomes, how do you do it? The second component is this idea of a rational connection. So the proposed legislation needs to do that thing that you say it's supposed to do. And I think in the context of COVID 19, the rational connection needs to be scrutinized more than it has before. The third component, which I find is particularly engaged in COVID 19 litigation, especially the COVID 19 charter litigation, is something we call the minimal impairment test. Conceptually, the government should be using the least or most restrictive measure so as to not overreach our civil liberties in our vote, which is a seminal case that actually outlined the test. It defined this as the least intrusive means. However, subsequent courts have relaxed this and some courts have said, Well, you just have to show that an alternative would not be as effective. Or if if you cannot show that there are measures that are clearly superior than the measure you have, then we're not going to second guess it.
And I think this is where some of the problem starts to arise, because how do you reconcile an approach that says, well, as long as it falls within a range of reasonable alternatives to approach, that is advocating for something that is minimally impaired, either it is minimally impairing or it is not. And once we start shifting to a more amorphous analysis, it becomes problematic because when we use words, words have meaning, and the combination of certain words can have the effect of depriving those words of their meaning, which in turn leaves the citizenry with a big question mark as to what the scope of their rights are and what precisely the government is going to be called upon to demonstrate when justifying infringement of those rights. So again, I'm sensitive at the time, I would imagine probably people have some questions, but nothing. I do not purport to speak as an expert on this subject matter. I just as I mentioned, I come here as a concerned citizen, as someone who has now had a fair number of charter claims in the context of COVID. These are some of the things that I'm grappling with not only as a lawyer, but as a member of a democratic society and quite frankly, as a human being.
Very interesting talk. I think a lot of us who were awake at the beginning of this and seeing it going off the rails to some degree and seeing the harms and the and the encroaching violation of various rights, we're thinking the courts are going to fix it. The courts are going to fix it, and they didn't. And you kind of address that, which is interesting. So I'd like to pass to the panel now and see if they have have a question.
Well, maybe one just a comment that may be helpful to others listening to the discussion. Then a question. One is, I've looked into the what were the origins of that section that says, subject to only such reasonable limits as can be demonstrably justified in a free and democratic society. I couldn't find anything they like for the Canadian Bill of Rights or any of the Provincial Bill of Rights. The only things I could find on that was that that language is used in a couple of the European conventions on rights. And incidentally, the only other constitution I found that had those words is the constitution of South Africa, which is not a particularly flattering. But the point I want to because we're looking at how how are these crises to be handled in the future? Isn't the way the federal government should have responded to this, that with respect, some of the points that you are making, these the bill introducing these measures, which include limitations on on rights, should have been a bill should have been introduced to the parliament not in order in council a bill to the Parliament. It should have been debated by the Parliament and would probably have been passed by the current Liberal NDP coalition. And then it. Should be referenced immediately to the Supreme Court, just as Harper did on the on the Senate reform bill. That bill was in front of the parliament, but he referred it to the courts. Isn't that the way that this could have been handled and would have at least there would at least been debate on some of the points that that you made.
I think that is a very mature, transparent and democratic mechanism in which to introduce legislation that everybody reasonably can foresee is going to be very divisive. Right. At the end of the day, I think we have generally lost a sense of who's serving who. Ushering into your point, constitutionally questionable measures as ministerial orders. The notion that with the stroke of a pen, an individual could just suspend the travel rights which are not insignificant domestically, which I find quite offensive, even more so than internationally, without the necessary public scrutiny that we elect others to do on our behalf is you're quite right, is quite problematic.
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