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Ad hoc tribunals during public emergencies | Michael Bryant

Wednesday, December 09, 2020 @ 8:30 AM | By Michael Bryant

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Michael Bryant
We can be justifiably smug in Canada about our internationally renowned independent judiciary, in contrast to our southern neighbours, where partisanship turns judicial appointments into a political circus. But a recent decision of the U.S. Supreme Court on a New York COVID-19 restriction should be humbling for Canadians considering the state of our legal system. It’s not so much the ruling itself, but the fact that it even happened. Whereas Americans can and do get timely adjudication of their constitutional rights before their courts, Canadians simply don’t.

On Nov. 25, in Catholic Diocese of Brooklyn v. Cuomo, 2020 U.S. LEXIS 5708, the U.S. Supreme Court suspended a New York executive order not dissimilar to the provincial orders that get made every week in Canada. This has been big news in the U.S. with the media focus primarily on judicial politics — how President Trump’s appointments are changing America. Of late, three decisions of that court were released on state regulation of the pandemic, regarding places of worship.

This is mind-blowing to me. In Canada, we have zero Supreme Court of Canada decisions on any pandemic regulation by any level of government. In fact, we may not have a single appellate decision on a pandemic regulation, anywhere in Canada. It’s true that the aforementioned U.S. decision was an injunction appeal, which do move more quickly than final judgments. But we don’t have any Canadian injunction appeals on the pandemic heading to Ottawa.

What is being achieved in the U.S. and other nations even more litigious (like Germany, Sweden, Israel) is more rigorous legal attention paid to human rights. The baby isn’t thrown out with the bath water — there is plenty of deference to executive justifications for proportionate, empirically sound restrictions. It’s simply more democratic.  

Globally ,there is far less litigation per capita in Canada, even compared to our colonial predecessors U.K. and France. This is so for a variety of reasons, adding up to a vicious cycle of unchecked governmental power. If one knows that no remedy can be found for a right, because it takes so long to get a matter through the courts, then one is a lot less likely to launch litigation in the first place. Also, because public interest litigation is so rare in Canada, there is unusual scrutiny placed upon the litigants for launching it in the first place.

Canadian reluctance to make legal waves affects institutions, businesses and maybe even the expert witnesses too often needed for this litigation. Finding an epidemiologist willing to testify against a pandemic regulation reminded me of finding a technologist willing to testify against Google, back when we were in litigation over Toronto’s Quayside waterfront project. Good luck, especially if you’re a small charity like ours, or a small business, let alone an individual.

But don’t get me wrong. The major impediment to timely adjudication of our constitutional rights is the administration of justice in Canada. The judges and lawyers are working plenty hard. There just aren’t enough courts with enough judges with enough capacity to manage an urgent legal  issue with due dispatch. We aren’t built like the U.S. system, because of a shortage of supply, which reinforces a tepid demand. The result is a drag on our freedom, our democracy.

After all, these U.S. courts are forcing federal and all state governments to move beyond an overstated, lazy debate about life over liberty. If that were true, then why not just govern like China, impose house arrest on all, without exceptions? Because we can do better in Canada. We can use a scalpel, not a sledgehammer, to make necessary, proportionate, demonstrably justified limitations of our constitutional freedoms.

Since we cannot revolutionize our legal system overnight to render timely justice, perhaps it’s time for the federal government to flex its constitutional muscles to install ad hoc tribunals during public emergencies for the little guy to get a hearing — enlisting lawyers, paralegals and the wealthy arbitration industry in Canada to undertake some extra public service. Or God forbid, governments could urgently appoint  enough judges and court staff, particularly now that courtrooms can be replaced by online hearings. Call it emergency management of our rights, to bolster public confidence in Canada’s increasingly overwrought pandemic governance.

Michael Bryant is executive director of the Canadian Civil Liberties Association, and was the 35th attorney general of Ontario, so he admits that he is partly to blame.

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