By Derek S.

Protestors: take charge, even if you are charged. You will be fine, even if fined. For the past nine months, Ontarians have had their fundamental rights restricted or revoked. It was forbidden to earn a living, to go to a bar or restaurant with a friend, to visit one’s family for Easter dinner, or to even stand outside with friends for a barbecue.

In the early summer, when cases dropped across the province and country — despite the various health professionals who have dictated our lives claiming Covid-19 had no seasonality—we received some reprieve from the extreme social isolation and economic dearth that the authorities demanded of us. Mayors and Chiefs of Police even joined and endorsed Black Lives Matter demonstrations, despite the existing orders expressly proscribing such actions under gathering limits. These demonstrations were often condoned by public health officials regardless.

For a time, the ‘health crisis’ seemed to be nearing its end with the State of Emergency even officially revoked in lieu of the Reopening Ontario Act, giving the Ford government carte-blanche ability to rule by decree, for the ostensible purpose of fighting Covid-19. With this came municipal mask mandates and health orders. Demonstrations against these often confusing and nonsensical orders were swiftly deemed ‘antimask rallies’ and decried as proof of toxic western individualism by health officials and politicians.

Once winter came, however, it was apparent that these measures had no effect on case rates and a second state of emergency was declared on January 14th. Once again it was justified on the flimsy spectre of overwhelmed hospitals and death panels, despite this not having happened at the height of the pandemic months prior.

Mayors and public health officials moved quickly, threatening exorbitant fines and even jail time for breaking their decrees, with special attention paid to those challenging these orders publicly. Police and other enforcement of these actions were swift. Videos of protestors being fined, charged, or dragged around in handcuffs circulated soon afterward.

Do not be fooled, these are fear-mongering tactics meant to stifle dissent against an inept and unaccountable provincial government and their unelected advisors. All charges against protestors will be made under either the Emergency Management and Civil Protection Act or the Reopening Ontario Act, both being provincial legislature and explicitly subject to the Canadian Charter of Rights and Freedoms. All current emergency measures, however, are purported by their proponents as being justified under the ‘reasonable limits’ provision under Section 1 of the Charter. While it is possible this provision allows for some limitations to be placed on individual freedoms for the sake of avoiding societal collapse, each of these limitations must be ‘demonstrably justified’ with evidence, rigor and proportionality, while only minimally impairing the rights and freedoms they limit.

Section 2 outlines our most fundamental freedoms, specifically conscience and religion; expression and communication; and association. Most relevant in this context is the freedom of assembly, which has been deemed to extend from the most baseline right of freedom of conscience. Gathering limits constitute a fundamental infringement on association, and limits as low as five people in an outdoor gathering in particular is neither proportionate or demonstrably effective to curb the spread of disease.

Section 7 deals with “life, liberty and security of the person.” It is inarguable that our faces, their expressions, unconstrained verbal and nonverbal communication, constitute a core part of our identity. Many protestors take a fundamental issue with coercive mask mandates, as they should, because these mandates constitute forced medical intervention and thus a direct infringement on bodily autonomy. Additionally, the Charter grants individuals “substantive fundamental justice,” which precludes overbroad or disproportionate laws, even if they may be arguably connected to a rational objective. This objectionable disproportionality includes enacting arbitrary gathering limits in ventilated outdoor areas, while permitting big-box stores hundreds of customers at a time.

Section 11 deals with the rights of those charged with an offense, including provincial offenses. Most, if not all charges have been made through summons, stating only that the accused is in violation of either an Emergency Protection Act or Reopening Ontario Act order. These orders are numerous and constantly changing, so merely informing someone they’ve violated one of potentially dozens of orders is a violation of the right “to be informed without unreasonable delay of the specific offence.”

Section 15 states “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” In the summer of 2019 and in spite of gathering restrictions, many officials and peace officers not only allowed ‘Black Lives Matter’ protests, but actively participated in them — most notably our Prime Minister. This is clear race-based favoritism.

If you have been charged or fined under the Reopening Ontario Act or the Emergency Management and Civil Protection Act, you can fight it. The sheer number of rights infringed by these measures on protestors, let alone their disproportionate impairment, makes these charges and fines overwhelmingly likely to fail a Charter challenge within the courts. You have the right to claim that the laws you are being charged under, are unconstitutional, and file a constitutional challenge. The rules and guidelines to do so can be found at: https://www.ontariocourts.ca/ocj/self-represented-parties/guide-for-defendants-in-provincialoffences-cases/guide/.