Ten days ago the Manitoba Court of Queen’s Bench was the latest court to rebuff a constitutional challenge to COVID restrictions on civil liberties. Chief Justice Glenn Joyal ruled that provincial public health orders were constitutionally justifiable, joining courts from around the country in embracing the official COVID narrative and defending the authority of the pandemic state. Over the past 19 months, lockdowns, masking rules, traveller quarantines, closed borders, business restrictions and now vaccine mandates have made Canadians less free than they have ever been. Yet so far charter challenges to COVID rules have been spectacularly unsuccessful. During COVID, the charter has been useless.

How can this be? Contrary to common belief, the charter is not the foundational document upon which our legal system is built. Enacted in 1982, it was designed merely as a gloss on what legislatures and governments can do. In fact, not even the original 1867 Constitution, formerly known as the British North America Act, established the law’s first principles. Instead, the preamble of that 1867 Constitution includes an innocuous sounding but significant phrase, acknowledging “a Constitution similar in Principle to that of the United Kingdom.” Essentially, Canada received the British common law system and its legal architecture.

That system is built upon a few core ideas, among them the principle of legislative supremacy: with few exceptions, legislatures can enact any law within their jurisdiction as they wish. Those laws need not be fair, just or reasonable. They do not have to make sense or be justified by evidence. Almost 75 years before the charter, Judge William Riddell of the Ontario High Court wrote that a legislature “can do everything that is not naturally impossible, and is restrained by no rule human or divine. If it be that the plaintiffs acquired any rights … the Legislature had the power to take them away. The prohibition, ‘Thou shalt not steal,’ has no legal force upon the sovereign body.”…read more.