COVID Cases: For Some Judges, Government Can Neither Deceive Nor Be Deceived

Commentary The years 2022 and 2023 have seen numerous court rulings in which some Canadian judges upheld government violations of our charter freedoms of association, expression, religion, conscience, mobility, peaceful assembly, and bodily autonomy. These outcomes are disturbing, but worse yet was the failure of some judges to require governments to show “demonstrably” (with persuasive evidence) that their violations of charter rights or freedoms was doing more good than harm. The 1986 Supreme Court of Canada ruling in R. v. Oakes requires judges to place the onus on government to show that its freedom-violating law, policy, regulation, or decision is rational, violates the charter right or freedom as little as possible, and actually brings benefits that exceed the costs and harms....