, 05.20.2020 07:21 AM

My latest: the blockading of a country

Armed police officers stopping people who were doing nothing wrong, and turning them away. 

It’s happened a lot, during this pandemic. It’s happened in Canada, too. 

For weeks, for example, Quebec’s government put police on bridges leading from Ontario into Quebec. Thousands of people were stopped. Most got through, but thousands were turned back. 

For weeks, Gatineau Police set up “random roadside checkpoints” at the Alexandra Bridge, Portage Bridge, Chaudieres Bridge, Champlain Bridge, and Masson-Angers Ferry. The feared Surete du Quebec, meanwhile, was responsible for the Macdonald-Cartier Bridge. 

There were objections, although not from the federal government; there was a petition, but it gathered few signatures. Quebec only signaled its intention to abandon the “checkpoints” by the end of this, the Victoria Day long weekend. 

Ottawa Mayor Jim Watson said: “I’m glad the Quebec Government has finally announced its decision to open up the border between Ottawa and Gatineau.”

He added: “I still don’t understand what was accomplished, but I am pleased that residents on both sides of the river can pass by freely.”

Nobody else really understood either. Why did Quebec’s government order the border patrols? Was it because they sometimes enjoy enraging the rest of Canada (because they do)? Was it because they are nativists and nationalists (because they are)? Was it because Quebec has achieved the distinction of being the seventh-worst place in the world for virus-related deaths (because it has)?

Who knows. It wasn’t saying. Besides, Quebec wasn’t the only government setting up armed blockades within Canada. New Brunswick did it, and so did Prince Edward Island.

In New Brunswick, for weeks, “provincial enforcement officers” were stationed at seven different road crossings, and two airports. Their task: turn back – forcibly, if need be –  anyone they deemed to be “traveling for non-essential reasons.” Canadians from Quebec, PEI and Nova Scotia were routinely refused entry to New Brunswick.

Over and over, motorists trying to enter the province had their licences checked and licence plates recorded – and they were grilled about where they’d been and where they were going. New Brunswick residents were being stopped and questioned, too.

Prince Edward Island, being an island, had an easier time of it.
There, highways staff – not police – were given authority by the provincial government to stop anyone crossing the Confederation Bridge.  The Confederation Bridge, a 13-kilometre fixed link between New Brunswick and Prince Edward Island, was built and paid for by Canada.

“Don’t come if it’s not essential,” sniffed PEI’s Minster of Transportation.  “You are going to be turned away.”

And turned away they were. Case in point: Barry Humberstone, a 60-year-old land-owning PEI resident, had the wrong address on his driver’s licence. They wouldn’t let him across. He was sent away, even though he had nowhere to go.

Just as they did with the “checkpoints” on bridges leading into Quebec, the federal government said nothing about what PEI was doing. Zero.

There can be a debate about whether these measures – PEI quaintly, and appropriately, called theirs “Operation Isolation” – helped prevent the spread of the virus. In Quebec’s case, that seems highly doubtful. But it will be debated, at some distant point, in a Royal Commission or an inquiry. Or something.

But what about this question: were the actions of Quebec and New Brunswick and PEI actually legal? What about that?

Because, on a plain reading of Canada’s Constitution – which is, you know, our supreme statute – the blockades were completely illegal.

Section six of the Charter of Rights and Freedoms is about mobility rights. Here is what it says: “Every citizen of Canada has the right to enter, remain in and leave Canada.”

How important is that section? This important: section 33, the so-called notwithstanding clause – which governments like Quebec’s have routinely invoked to gut essential freedoms – does not even apply to it. It was seen by the framers of our Constitution as that critical: governments aren’t allowed to opt out of it – pandemic or no pandemic.

Sure: section one of the Charter permits courts to determine whether an unconstitutional measure is “reasonable.” But Quebec, New Brunswick and PEI didn’t even bother to make a quick reference application before a court to determine if they were in fact acting legally.  They just went ahead and set up blockades, some of them maintained by police officers carrying guns.

Many, I suspect, won’t care. Better safe than sorry, they’ll say. Better to lose some freedoms than lose one’s life.

And all that is perhaps true. But this is also true: constitutions are designed to guide us through bad times, not good times. They are designed to be the law of the land.  They are designed to remind us who we are, as a people.

During the Great Pandemic of 2020, in some parts of Canada, we needed to be reminded.

43 Comments

  1. Richard Deschambault says:

    Great writing and analysis until the very last sentence. It’s not in “some” parts, but in “almost all of” Canada. Manitoba, Alberta, Saskatchewan, Ontario, and, to a lesser extent, BC, had all border restrictions. And let us not forget the ever fantastic federal government’s assault on both basic freedoms and democratic rights…..

  2. William Edward Henry says:

    I understand a constitution to be a means for circumscribing governments and protecting the citizenry from (inevitable?) governmental overreach.
    What penalties will the politicians endure for their clearly unconstitutional behaviour?
    And what of the police oath sworn to the Crown to uphold the law of the land? “I was just following orders” didn’t work in ‘45 and shouldn’t work now.

  3. Fred from BC says:

    How the hell did this escape the attention of our mainstream media?

    I like to think I’m reasonably well-informed on current events, but I knew nothing at all about this. Where was the CBC during this egregious violation of our Charter rights?

    • Brine says:

      The CBC is in the pocket of the Liberal party. $6M for the MSM plus untold more millions to the CBC buys a lot of favourable coverage.

    • joe long says:

      The Winston Smiths in the media were too busy covering the daily money handouts of our Illustrious Dear Leader, and the goings on in Toronto and Montreal to notice.

      If it’s not in Montreal, Toronto, or at the Ottawa briefings it’s just not happening.

    • Ronald O'Dowd says:

      Fred,

      I only knew about Quebec.

      • Fred from BC says:

        Well, at least Quebec has enough of a problem that they can sort of justify their reaction (knee-jerk or not). The others do not.

        Why is Montreal so bad, anyway? You have other large cities…was it the transit system, like New York?

        • Ronald O'Dowd says:

          Fred,

          Two stories are going around. No idea if they are even remotely credible: first, our Spring Break is a week ahead of most others. Secondly, it seems a lot of Montreal’s Jewish community may have celebrated the High Holidays in NYC. But it’s not exactly cause and effect now is it.

  4. Pedant says:

    I wish our law enforcement officials and their federal overseers took the same tactic on our international border as these provinces took with their provincial borders, rather than acting as bellhops to anyone who wants to cross illegally.

    • Derek Pearce says:

      For a couple of months now Canada has been returning people claiming refugee status, whether at actual border crossings or not (like Roxham Rd) to the US. Just to clarify.

      • Pedant says:

        Just to clarify…the PM only closed the Roxham Road illegal crossing in March due to the virus. The assumption is that it will be flung open once more as the lockdowns ease. Additionally, as the Montreal Gazette reported, border-crossers were not even subjected to the quarantine rules imposed on returning Canadian citizens. To put it mildly, I question the Liberals’ commitment to returning a potential pool of Liberal voters to their countries of origin.

      • Fred from BC says:

        “For a couple of months now Canada has been returning people claiming refugee status, whether at actual border crossings or not (like Roxham Rd) to the US. Just to clarify.”

        After years of allowing them to waltz right in. Just to clarify.

    • Ronald O'Dowd says:

      Pedant,

      I wish the jackass in the Oval Office would use CBP and ICE to prevent these people from crossing to the Canadian side but he’s too busy cheering them on. He wants as many of them out of the U.S., even though they are there legally under international agreements.

  5. Robin says:

    Quebec didn’t sign, so why should they follow it, especially when they deem themselves to be a nation unto itself? ?For the rest of Canadians in provinces that did sign, covid-19 has shown Canadians they can wipe their arses with the constitution. Any so called “rights” are an inconvenience for gov’ts, and for citizens, “rights” are only those who can afford to uphold them in the courts. This is the sad state that Canada has devolved to.

    • Ronald O'Dowd says:

      Robin,

      Welcome To Big Brother [insert province, federal, state or other order of government]…

      The New Normal Worldwide. All about control.

    • Ronald O'Dowd says:

      We have to abide by it, even though we never signed. The rule of law requires it. We can’t opt out of most of the Charter.

  6. Steve T says:

    I’m going to draw an analogy here that admittedly is not perfect, but here goes anyway.

    NRA supporters in the U.S. continually throw up the Second Amendment as evidence that they can own any form of weaponry. Most rational people acknowledge that the 2nd Amendment was written at a time when machine guns, bazookas, and similar weapons were envisioned or common.

    Similarly, the Canadian Constitution (while not quite as old as the U.S. version) was not written to contemplate a black swan event like COVID. The idea that a pandemic would sweep across the world, in an era when transportation is cheap, easy, and common, surely was not what the framers of the Constitution were thinking about.

    As a resident of a province (Manitoba) with an extremely low rate of COVID, I would be quite happy to see stricter measures limiting travel into this province. There are already exemptions for essential workers and the transportation of goods. So if someone has to defer their cross-country vacation, that doesn’t seem too much of a sacrifice. Constitution or not.

    • Chris Sigvaldason says:

      The Canadian Constitution applies at ALL TIMES, especially Black Swan events. Governments can’t just ignore it because it’s inconvenient or difficult to do so. They must debate in Parliament, in public, for any variance or amendment.
      You don’t need a Constitution on a sunny Tuesday afternoon. You need a Constitution when you have been unjustly arrested and have to defend yourself in court (for example).

  7. Steve T says:

    “…machine guns, bazookas, and similar weapons were NOT envisioned or common.”

    • Dave says:

      But at the time of the creation of the second amendment, flintlocks and bronze cannon were the machine guns and rocket launchers of that era, high tech and deadly.

      • Chris Sigvaldason says:

        Flintlocks and bronze cannons were also the only arms that the government of the time had access to. The right to bear arms in a militia was designed to prevent unlawful government aggression by a similarly armed populace.

  8. Robert White says:

    Constitutionally, I have been wondering why the legislatures did not formally invoke medical martial law when all legislatures were in fact closed to normal operations due to the outbreak?

    In addition, I am wondering why no litigators challenged the imposition based upon our collective mobility rights under the Charter?

    Why is Parliament being so lackluster vis-a-vis formal declaration of medical martial law? If our collective security is threatened by a deadly pathogen why in heck did the politicians & bureaucrats not enlist the legislative arm to invoke some semblance of formality that could better govern our movement within Canada?

    Great article this week, professor. The tenor at the legislative level is suspicious to myself, as well as others. Parliament owes us an accounting from the ground up IMHO.

    RW

    • Chris Sigvaldason says:

      If pipeline protesters can block any highway or rail line with little to no consequences then why can’t a government? “The rule of Law” has become a quaint platitude in Trudeau’s post-national Canada.

  9. A. Voter says:

    Closing borders and wearing masks were the two things needed to contain the pandemic. Our federal government got it wrong on both counts early. We were bombarded with “stay at home” messages, so why is it wrong to enforce that?

  10. HarryR says:

    Mr K throws out a few bones for us to chew on and the rsponse is ……. what?
    “Crickets”
    And there, fellow citizens, is a stark image of this “first post-national state”!
    Baaaaaaa-a-a-h, baaaaa-a-a-h!

  11. Miles Lunn says:

    I think under section 1 this could probably be saved. Reality is during manhunts police can cordon off a community and stop people living and likewise in disaster zones such as floods they can ban people from entering so while first time we’ve had bans on entering provinces, not first time on a given area. I think with this pandemic, it is best to isolate the hotspots in order to contain it. But to ensure its proportional thus respects section 1, provinces should only do this until COVID-19 cases come down and ban on cross border should have thresholds and once any province falls below thresholds must re-open to cross border traffic. PEI and New Brunswick have no cases so no reason for travel bans between those two, but both banning travel to and from Quebec asides essential is fair in order to prevent a second outbreak as Quebec still doesn’t have it near under control. In fact per capita rates in Quebec are higher than most US states and higher than almost all European countries.

  12. Peter says:

    These aren’t the only co-vid sponsored restrictions that would have difficulty surviving court challenges, but our notions of freedom have been turned topsy-turvy and most of us accept that in practice regardless of what the constitution says. The Quebec side of the Ottawa River is a major recreational destination for Ottawa residents–NCC parkland, cottage country, bicycle trails, golf, etc. If Torontonians are being barred from their cottages in Muskoka and the Kawarthas, I’m not going to get on Quebec’s case for their border restrictions.

  13. joe long says:

    The provinces relied on the Feds to do their job with respect to international borders. Trudeau, Freeland, et al, talked repeatedly about ‘enhanced screening’ and extra security measures to deal with incoming travelers who might be carrying COVID-19. Then the provinces noticed that these ‘enhance’ measures were non-existent, or consisted of handing out a piece of paper.

    As a result of this failure of the Trudeau government, many provinces took their own measures. I submit the root cause of the problem is Trudeau listening to his ‘experts’ who said shutting down borders, testing for temperature, and requiring new arrivals to self isolate were not required, they wouldn’t stop the virus, so why try. Funny that we now have these measures

    Also note that our ‘experts’ said the public should NOT wear masks; they don’t work (e.g. Dr Tam). Now they’ve done a 180, and even Trudeau is wearing a ‘they don’t work’ mask!

    With this lack of federal leadership many provinces said we are going to assume some federal roles. I’m not happy about it, but with a ‘leader’ like Trudeau I don’t blame them.

    I also hear reports that Trudeau’s officials are going after people who are selling home made masks because they don’t have labels. Meanwhile fully transparent team Trudeau won’t tell us who is the manufacture of the millions of defective masks they bought. Trudeau says we won’t be paying for them, but I hear reports that we paid in advance. Again a failure of team transparency to be open and honest.

    • Fred from BC says:

      ” Then the provinces noticed that these ‘enhanced’ measures were non-existent, or consisted of handing out a piece of paper. ”

      Here in BC, the provincial government ended up putting posters in the airports advising people to self-quarantine. The federal government, as you say, did nothing but talk about it.

  14. William Morrison says:

    “designed to remind us who we are as a people”

    OK, I’ll bite. Who are we as a people? Forty years ago I could have told you, but not now. So who are we? You tell me…

  15. Ronald O'Dowd says:

    They did it because they knew most people would snore right after hearing about it. That simple.

  16. Bill Malcolm says:

    Good comment, although one would wish for Canadian spelling like signalled and travelling, instead of the US version. You got licence right. Can’t help myself, that stuff just pops out at me as I read along.

    New Brunswick’s PC premier Higgsie, all smiles of self-congratulation for his self-perceived competence rather than attributing it all to the truth – pure blind luck, openly took a “sue me if you don’t like it” approach at their borders. He’s been on TV grinning from ear to ear, a hero in his own mind running a place few people ever bother to visit, merely drive through, which likely accounts for the low infection rate in the first place. PEI in winter is a hellhole nobody visits if they don’t have to. I used to have to — summer is a night and day difference. Snowbirds reurning brought what virus there was.

    That Higgsian attitude of not consulting the SCC for legal advice was a harper tactic with new legislation if you remember, never consult the SCC, they might rain on your ideological parade. And give ’em hell when they do turn you down to keep the hicks back home happy. Ideological Conservatives, you can keep ’em far away from me, thanks. Never met one with societal vision, only business numbers extruding from their gormless mouths or uttering slightly disguised racism like Beyak.

    NB has had one plague case in a month but old Higgsie likes to keep them on their toes there in NB, socially distancing. For what reason I cannot imagine. The chances of getting infected are vanishingly small there just as in PEI. Even in NS with 51 0ut of the total 57 deaths in one non-profit retirement home and spread all over the place otherwise and all old people like me, the chance of getting Covid-19 is tiny. Only a hundred and some cases are considered active, the other 800 odd “recovered”. Wandering around in Montreal and Toronto, well you take your chances still.

    It’s the tyranny of the Public Health Official, in my view. They want to see zero cases before THEY feel safe. The hospitals are empty, ERs running at less than half pace with people hiding at home, family docs are going on TV pleading for patients to come on in or phone, the place is economically devasted, and I can’t get a damn haircut. When I eventually can it’ll be a choreographed nightmare based on no logic.

    Our Chief PHO envisions a huge breakout if people gather in groups of more than five outdoors spaced six feet apart, but unless it’s in an old folks home, or indoors with an actual Covid carrier in a closed room like a restaurant and air recirculation, precisely who is going to infect who and what’s the chances it’ll be fatal? Surely we have enough information now to not act with a complete lack of logic. But no, same old thing, as if nothing’s changed, when it clearly has. We know a lot more than we did at the end of February.

    Masks might well have helped at the beginning when we knew bugger all about what was going to happen; recommending them now in most places is a useless waste of time because nobody much has the virus. Making it mandatory would be beyond the pale. Talk about bolting the door after the horse escaped. It seems like it’s a placebo to make the public at large, cowering in supine fear, feel they are doing something positive, slinking about with a buck’s worth of cloth covering their nose and mouth, nothing for the eyes and ears. Masks stop you spitting on others. If you don’t have the dreaded plague, then who are you endangering? If those who had the plague and recovered like the huge majority have, they have antibodies for this first strain or they’d have croaked – mask wearing for them is ludicrous. Totally ludicrous. Its an ergo QED.

    Mutation, as occurs with flu strains is the worry after it’s gnawed its way through Asia and returns in the fall, although with the airline industry in tatters and seat prices sky high, exactly how’s it going to get here with our border controls and quarantine? If it makes it, the vaccine they’re all currenly working on won’t work, just as we have different flu vaccines each year for different strains. Most people can’t even be bothered to get that shot. So that’s a bit of a concern, but likely not for the population at large unless it mutates into a monster.

    Can’t escape the feeling that the current “measured re-opening” in most places is merely for public health officers to justify all the scare talk about the second wave. If you live in PEI or NB, perhaps someone can tell me where the second wave will come from – a random exhaling shrub or gaseous spotty potato? There’s thousands of tons of spare spuds because nobody’s eating fries at fast food joints across this nation (McCains in Belgium is experiencing the same lack of demand in the EU btw), and they’re feeling unloved, the little taters. PEI farmers don’t know what to do with the little dears. Eat a spud for freedom! In fact, have a gorge – they kept the Irish going as a complete food when the Brit landowners exported their other agricultural goods back to England, as a thumb in their face as indentured serfs.

    No sir, I’m not impressed and neither is my brother a retired doctor. But we obey all the rules so as to not stir up any random cop with no imagination and a ticket book or busybody ladies on the prowl, and haven’t even met up ourselves. Like the zombies we have all become as a society, we obey. Doesn’t stop the brain thinking though. And thinking, Christ, is anyone in charge going to wake up and use logic? Or is this horse manure destined to last for ever and for what purpose? Depopulation or something? The Fabian dream come true at last, and Malthus and the eugenicists’ skeletons rattling with joy.

    • Steve Teller says:

      Side note: if you are going to critique someone for a nuance like Canadian vs American spellings, you probably shouldn’t make fundamental spelling, capitalization, and punctuation errors in your (lengthy) post.

  17. Bill says:

    This post brought out some real winners. I have visions of them hauling out their muskets and marching on Ottawa.

    • Fred from BC says:

      “This post brought out some real winners. I have visions of them hauling out their muskets and marching on Ottawa.”

      We can’t. Being Canadian, we meekly surrendered our muskets some time ago.

  18. Tempest in a teapot. It is normal for certain parochial administrations to act in a heavy handed manner when a crisis like the one we are experiencing occurs. Unlike a few of the doubting Thomases on this page, I recognize this for what it is; a real public health crisis. Quebec has always marched to the beat of its own drumming (to turn a phrase) and that is not likely to change. I have yet to see a Federal government do anything about it, and I’m not holding my breath. Never underestimate how craven a politician will be if they think it will help at election time.

  19. Fred from BC says:

    “Never underestimate how craven a politician will be if they think it will help at election time.”

    This.

  20. Joseph says:

    I guess the real test comes when it’s obvious there is no risk but the government just can’t bring itself to lift the state of emergency and stop violating constitutional freedoms.
    What then?

  21. Jack McLeod says:

    At the time of introduction of The Charter of Rights and Freedoms; that any state that issues such a decree, that same decree can be nullified by the state. Pointed out by the National Citizen’s Coalition’s Colin Brown if I remember correctly.VNZ7

  22. Robin says:

    I don’t understand who or how this applies to the Quebec nation as Quebec did not sign the constitution. The constitution is only a “feel good” wrapper for the Canadian provinces and territories. At best, the constitution is an inconvenience to Ottawa when it doesn’t fit with policy.

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