Were the mandates really legal?

Recently I had the honour of speaking with one of the original creators of our Charter of Rights and Freedoms, the Honourable Mr. Brian Peckford. Peckford also served the Province of Newfoundland and Labrador for 17 years as an elected Member of the House Assembly, ten of them as Premier.

Last fall, when Canadians found themselves being coerced to take a medical procedure as a result of government mandates, Mr. Peckford stepped forward. He shares the concern that many Canadians can relate to; was it necessary for our people to be placed in such a state of exception?

In what has become known as the Peckford Recommendation, Mr. Peckford sent a letter to all Premiers and the Prime Minister encouraging them to test in their own Courts of Appeal, the legality of the measures and workplace policies that were imposed to determine if they are contrary to the law and in particular, our Canadian Charter of Rights and Freedoms.

In March 2022, I asked the Saskatchewan government if it would accept the recommendation and test its actions in court.

The government response was that it does not intend to direct a reference to the Saskatchewan Court of Appeal regarding its former Covid-19 public health measures, and that it is confident that all of the measures were compliant with the Charter. They also stated that legal advice was obtained from officials within the Ministry of Justice and Attorney General about the public health protections respecting proof of vaccination (or negative test) and masking prior to implementation, and that the “precise nature of this legal advice is confidential.”

The question is, was this extreme state of exception actually necessary? Does the government fear a judicial review? Is it because they, like Deputy Prime Minister Chrystia Freeland, viewed the coronavirus pandemic as a “political opportunity”[1]?

It is vital that our constitutional documents maintain supremacy in fact, not just on the word of the government who may be in breach or acting out with their power. Especially when it concerns a provincial government that chose to act even earlier than their Federal counterparts, assuming that it would be in the interest of the population’s health and safety. The Justice Centre for Constitutional Freedoms concluded a scathing report[2] detailing exactly how the Saskatchewan Government had acted arbitrarily based on the data available to them as well as acting ultra vires by enforcing mandatory two week quarantines for international travelers prior to the Federal Government’s use of the Quarantine Act.

Considering its previous jumping of the gun, the measures enacted by this government must be tested against our country’s most important legal documents to ensure that these measures were in fact fair, just, reasonable, and necessary for the protection of the public.

The people’s trust of this government has been eroded over the last two years. Some of that trust could easily be regained by this government taking the steps to ensure that their measures were legal and not just advised as legal.

[1] “KINSELLA: No credible explanation for Freeland callously calling pandemic ‘a political opportunity’”, by Warren Kinsella for the Toronto Sun, April 17th, 2021

[2] “The Unjustified Persistence of Lockdowns: A Charter Analysis of Saskatchewan’s Response to Covid-19”, Justice Centre for Constitutional Freedoms, September 14th, 2020

Nadine Wilson is the independent MLA for the Electoral District of Saskatchewan Rivers.