Defending Civil Liberties: Reflections on Pandemic-era Legal Practice

Mark Joseph, Senior Litigator at The Democracy Fund, spoke at Rebel News LIVE! in Toronto on May 11, 2024.


So, I’ve been given the impossible task of describing legal work without putting you to sleep.

I’m going to hit the highlights, though. Then, I’m going to make some observations about practising law during the Pandemic, and finally, I’m going to mention future threats to our civil liberties.

It’s hard to adequately describe the stupidity and kafkaesque legal situation during the pandemic.

We had a student at a Canadian university who attended an affiliated campus overseas.

The university had a vaccine mandate for its Canadian campus. Despite the fact that our client would never actually attend campus in Canada, the university insisted that she get vaxxed or be expelled.

In our demand letter, I actually had to write the line, “It is well known that biological viruses do not spread digitally.”

Of course we also represented dozens of folks charged in connection with peacefully protesting in Windsor and Ottawa at the Freedom convoy.

Perhaps you’ll recall several gentlemen charged with providing jerry cans of fuel to truckers. Well, we represented them.

Interestingly, it’s not a crime to carry a jerry can of fuel in public.

Nonetheless, the Crown charged our clients with mischief.

As we’re trying to figure out how the charge of mischief applies here, it occurs to us that the Crown has no evidence about the contents of the jerry cans - how does the Crown know the jerry cans contained fuel rather than - say - water?

Well, it turns out that the Crown didn’t know: the cops had no record of the contents of the jerry cans.

I’m not saying there was fuel in the cans, and I’m not saying that fuel went into the police motor pool and then to police vehicles. I’m just saying the Crown couldn’t say where fuel ended up.

We got the charges dropped.

We had a freedom convoy client who was alleged to have blocked access to the Ambassador Bridge. The Crown sought 45 days in jail.

Turns out he was arrested in a Canadian Tire parking lot. Can anyone see the problem here?

Canadian Tire parking lot.

Ambassador Bridge.

There’s a big space between those two locations.

It took two years of court appearances and a judicial pretrial before the crown withdrew the charges.

This official stupidity was often only rivalled by official cruelty.

For example, we had a client who was charged with failure to complete the ArriveCan app. She was driving to the US to receive experimental cancer treatment. Her young daughter went with her. Upon return, she failed to present the right COVID test: she was ticketed $6000, and her daughter $300. The Crown threatened to go to trial. Mom then died of cancer. The Crown did not immediately drop the ticket and suggested we provide proof of death. My TDF co-counsel, Adam Blake-Gallipeau, appeared in court, advising that the Crown was seeking proof of death and said we had no instructions or intention to seek that from the child. Only then did the Crown withdraw the tickets.

Another client travelled to the US with his elderly diabetic mother for a brief visit.

His mother forgot her insulin, so they returned to Canada. The border agent tells him to go get a PCR test in the US, or he would be fined $6000.

Driving back and forth to get the test would take more than 24 hours, at which point his mother might suffer hyperglycemia. The client took the ticket rather than risk his mother’s survival. We confronted the Crown with this tricky choice and convinced them to drop the ticket.

All told, TDF and its team of lawyers and paralegals handled around 2500 pandemic related tickets, and saved Canadians millions of dollars of potential fines.

We represented dozens of Freedom convoy protesters criminally charged with offences ranging from mischief to breach of court order to resisting arrest: many of those charges were dismissed, and of the ones that were not, only one resulted in anything more than a conditional discharge - and that is under appeal.

We represented the Coutts 3 in Alberta, as well as Pastor Pawlowski, Pastor Reimer for peacefully praying in a public building, and pastors who kept their places of worship open when ordered to close. We got the Ontario College of Teachers to successfully conclude their investigation of Chanel Pfahl, an Ontario teacher accused of challenging DEI.

So yes, TDF held the line.

Now, some observations:

The pandemic, if anyone cared to notice, was accompanied by legal contradiction and hypocrisy.

Protests that were identical in form were prohibited or allowed depending on the content: e.g. BLM protests were allowed, but protests against lockdowns were not;

Some religious buildings were targeted; some were left alone

Small merchants were forced to close, but large establishments were allowed to open

Important government officials could travel freely, but we could not

None of these seemingly contradictory policy positions were justified by medical science: we were just told that we either complied or we would be fined, arrested, or, charmingly, sent to a camp.

In almost all cases, when the issue of the scientific basis for a policy was raised by a lawyer, the courts simply deferred to government experts or took “judicial notice” of otherwise complex medical evidence.

Often, during the pandemic, fundamental legal principles were ignored. I’ll give you an example:

The Rule of Law requires that laws be published. Why? Because if people don’t know the law, they cannot properly guide their conduct in reference to it.

But during the pandemic, governments were making or changing laws weekly, through a legal instrument called Orders-in-council (these things could be issued without the need to consult law-makers or administrative regulators).

The problem was that laws were changed so quickly that citizens did not and could not know the state of the law at any one time: we had clients who were charged with breaking a law that was not published until days after the offence date.

But probably the worst case of this concerned ArriveCan, and this was discovered by Alan Honner, our litigation director.

The law that allows the government to set conditions for entry into Canada is contained in the Quarantine Act.

So, sometime in November of 2020, the government issued an Order which said:

“A person who enters Canada must provide their suitable quarantine plan or their contact info by electronic means specified by the Minister of Health.”

Notice anything? It doesn't mention ArriveCan as the specified electronic means.

So how did the public know what electronic means to use?

Well, our political masters eventually got around to specifying ArriveCan as the electronic means

But they buried it deep in a bureaucratic landfill so that no one would notice: an obscure website for archived public health declarations.

Where we find a declaration dated November 26, 2021, in which the government specified ArriveCan as the electronic means.

Thus, prior to November 26, 2021, it looks like the government had not actually published a law establishing that you had to use ArriveCan.

Is this a problem?

Well, it turns out that it is - quite a big one, in fact.

Because it’s been a principle of law since the Code of Hammurabi 1750 BCE that people should know the applicable laws.

Even our children’s colouring book of a Charter sets out in s.11(g): a person “has the right not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian law.”

When we confronted the managing Crown with this argument, she said, “Well, everyone knew they had to use ArriveCan.”


From the town crier?  Did you get a handbell and a feathered cap and yell, “Hear ye hear ye?”

I mean, Moses came down from the mountain with stone tablets so that everyone knew the deal - even God is bound by this basic rule. But not the Canadian government during COVID, apparently.

Needless to say, the Crown quietly dropped all our tickets dated prior to November 26, 2021.

Of course, the best recent example of junking the rule was the invocation of a public order emergency.

A quick review of the legal grounds for invoking a public order emergency under the CSIS Act was enough to establish that, without serious, cross-country, real or threatened violence, the government would not be justified in declaring an emergency.

And anyone at the Freedom Convoy protests knew that there was no actual or threatened violence.

So the emergency invocation was unreasonable - which was the view TDF espoused when we participated in the Public Order Emergency Commission.

So when Justice Mosley held, in his recent decision, that the invocation was unreasonable we were not surprised.

For my part, I think Justice Mosley’s decision is thorough and well-written but we’ll see what the appeal court does with it.

The issue that bedevils civil liberties lawyers is that our Charter is not terribly effective at protecting civil liberties: it’s like going into combat against the armoured knight of state authority with a pool noodle.

Alright, let me try to anticipate new dangers to civil liberties.

Bruce Pardy ably explained the mortal threat that Bill C-63 represents to our freedom.

I note that every new offence in Bill C-63 is already covered by existing laws. Bill C-63 is a trojan horse that will release into Canadian society an army of bureaucrats and informers empowered to crush dissent.

But Bill C-63 - by creating a vast bureaucracy to regulate online content - also creates a superstructure that will allow the government to further restrict civil liberties.

Those restrictions, I predict, will concern “misinformation and disinformation.”

In November of 2023, the Director-general of UNESCO (United Nations Educational, Scientific and Cultural Organization) put out a statement that read:

“Digital technology has enabled immense progress on freedom of speech. But social media platforms have also accelerated and amplified the spread of false information and hate speech [notice that hate speech and false information are twinned], posing major risks to societal cohesion, peace and stability. To protect access to information, we must regulate these platforms without delay while at the same time protecting freedom of expression and human rights.”

(You know when you eat ice cream and get an ice cream headache? That part where they say, “to protect access to information, we must censor it,” gives me an ice cream headache.)

So, TDF wrote to UNESCO and asked for a meeting. During the meeting, we confronted UNESCO about their support for censorship.

I’m going to pause here and explain the philosophical problem with censoring mis- or disinformation. You can use this to impress friends at parties or get yourself thrown out, depending on the crowd.

One: For at least 2400 years, since the pre-Socratics, philosophers have struggled with a theory of knowledge: what does it mean to say that a statement is true?

You’re welcome to think about this on your own time, but I’m telling you, it’s not an easy question to answer.

To this day, no one has figured it out. So, there is no philosophical foundation upon which to base a “Ministry of Truth.” None. Treat anyone who claims otherwise with contempt.

Two: We have no practical tools that can definitely, unfailingly differentiate moral & political truth from falsehood - the best we have developed so far is the scientific method, and that only deals with scientific knowledge -  which, rather than comprising a set of unassailable beliefs, is under constant revision.

Alright, now back to the UNESCO meeting.

We asked about these problems. The UNESCO representatives had no answer. They just claimed that, no, they weren’t seeking to regulate speech. They flatly denied it. That’s what we’re dealing with.

Note that nonsensical government positions won’t stop governments from attempting to regulate speech using the pretence of harm from misinformation or hate speech.

And once the government assumes the role of the arbiter of truth - our status as free people ends. We’re done.

From everything I’ve read over the past 5-10 years, it seems our political class wants to establish the Panopticon of English philosopher Jeremey Bentham: one central tower looking into open prison cells arranged in a ring. That’s their plan for us.

So that’s the fight TDF will be facing in 2024 and beyond, your social media posts and public comments will be subject to government scrutiny and censorship, supercharged by East German Stasi-like informants.

Proponents of censorship often retort that this can all be handled humanely and rationally once we appoint the “right censors.” It should be obvious by now that this is comically mistaken. But let me make a few additional comments on it.

There’s a brilliant quote from the late William F. Buckley Jr. He said: “I would rather be governed by the first 2,000 people in the Boston telephone book than by the faculty of Harvard.”

This is basically the core assumption of the Anglo-American political tradition. And it’s been repeatedly vindicated. Because every expert the government proposes as a truth-telling prophet turns out to be false.

People who claim superiority in ascertaining moral or political truth are frauds.

It’s obvious to anyone familiar with recent history that the government is, in fact, the biggest purveyor of mis or disinformation. The government's real concern is not in regulating mis or disinformation - it's in maintaining their monopoly on spreading it.

The beauty and tragedy of social & political life is that we are all left with our imperfect human powers of discernment - no one person or organization has any supernatural critical faculties in this regard.

So, what does all this mean for journalism?

Well, independent journalistic outfits such as Rebel, are actual - not fake - combatants in this war against mis and disinformation - because they remain among the last group of reporters free from government influence.

Many if not all establishment journalists are intentionally incurious and do not ask difficult but important questions - mostly due to the fact that the government is paying them for their silence and credulity.

Everyone has a bias, but people will pay for reporting which is informative and at least partially, usefully reflective of the world, rather than blindingly ideological.

Adversarial, skeptical reporting is not only healthy for individuals, but it’s necessary for a functional liberal democracy, because new information leads to adjustments and corrections in government policy.

If you’ve been paying attention, though, you might guess why governments oppose free speech: free speech may cause citizens to elect people who change government policy. And, while it may be good for citizens, it’s bad for anyone dependent on the political status quo.

We need independent journalists to identify social and political problems that need solving, just like we need organizations like TDF to rectify these problems. We all have a part in this fight.

About The Democracy Fund:

Founded in 2021, The Democracy Fund (TDF) is a Canadian charity dedicated to constitutional rights, advancing education, and relieving poverty. TDF promotes constitutional rights through litigation and public education and supports access-to-justice initiative for Canadians whose civil liberties have been infringed by government lockdowns and other public policy responses to the pandemic.

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