This month, January 2024, marks the anniversary of a watershed in Canada. Two years ago, in the depths of a politically dark winter, thousands of trucks made their way to Ottawa to protest federal COVID vaccine mandates. As Prime Minister Justin Trudeau retreated to his cottage, truckers and protesters dug in for over two weeks. The response, when it came, was a hammer. The declaration of a public order emergency on Valentine’s Day, the freezing of almost three hundred bank accounts, the arrest and detention of the Freedom Convoy organizers, and the kettling of protestors in Ottawa’s downtown stood at odds with most people’s idea of Canada.

What happened? Every Western democracy has its COVID story. In Canada, two books appearing in 2023—one by litigators, the other by political theorists—document ours. Taken together, they establish that the federal invocation of the Emergencies Act in 2022 was the culmination of a two-year holiday for democracy and the rule of law in Canada—supported by a large swath of the Canadian population. Both books analyse a period they call a “panic,” offering both documentation and the outlines of a map to navigate a bewildering new style of governance. Where both expect it to return again, we find insights on that all-important question: What now? 

Executive Emergency Powers

Joanna Baron and Christine Van Geyn are lawyers and executives with the Canadian Constitution Foundation (CCF), a legal charity that defends Canadians’ rights and freedoms through litigation. It became active in COVID court battles soon after the “surreal, sometimes inane, often unprecedented, and unusual public health measures” began in mid-March 2020.

Pandemic Panic: How Canadian Government Responses to COVID-19 Changed Civil Liberties Forever appeared in November 2023. “From the outset of the pandemic,” it argues, “Canadians witnessed an extraordinary—and mainly uncontested—outgrowth of governmental powers and assaults on individual liberties.” The CCF itself litigated many of the cases the book raises.

The bid for executive emergency power began early. In March 2020, the Liberal government prepared a sweeping bill that would grant cabinet the power to raise taxes and allocate billions without consulting Parliament. Provincial governments also passed bills providing extraordinary powers to cabinet executives—and wasted no time in using them.

An eleven-chapter tour of the COVID period details how the measures imposed by Canada’s federal and provincial governments violated guarantees of both the Canadian Charter of Rights and Freedoms and the Constitution Act, 1867. The tour reveals mounting policy horrors inflicted on—yet often welcomed by—an increasingly panicked public. In case after case, the courts upheld government COVID measures, determining that they either did not violate individual civil rights Canadians had long taken for granted or restricted those rights on reasonable grounds.

The book opens by showing how Canadian courts eschewed the opportunity to develop case law on the right to freedom of assembly, where this “forgotten freedom” of our forty-year-old Charter still lacks a legal test. Public health-based restrictions of movement were upheld even if they meant that a child could not attend a parent’s funeral in the neighbouring province. In the winter of 2021, designated quarantine hotels incarcerated international travellers with no rationale beyond an assurance the measure would provide an “extra layer of security for Canadians.” Typifying a puzzling indifference, one judge characterized the resulting costs and inconvenience to travellers as “decidedly first world, economic problems” that “barely raise any discernible constitutional concern.”

Canada was one of the few liberal democracies that required vaccination to travel by plane, train, or ship within the country. In October 2022, the Federal Court deemed the legal challenge—raised by a former provincial premier and signatory of the Charter in 1982, no less—moot, of no public interest because the federal cabinet had already dropped the requirement in June 2022.

Baron and Van Geyn characterize Canada’s violations of the freedoms of expression and religion as among the worst of Western liberal democracies. An egregious example was the 2021 decision in Alberta Health Services v. Pawlowski, in which an Alberta Court of Queen’s Bench judge upbraided two pastors as being “on the wrong side of science, history, and common sense on this issue,” then ordered them to preface their public statements with a court-written disclaimer. Nor did evolving jurisprudence prompt Canadian courts to change their stance. In a 2022 decision, an Ontario Superior Court justice cited a 2020 American Supreme Court decision preventing New York state from restricting religious gatherings to 10 to 25 persons. In upholding the Ontario restrictions, notably, she cited the dissent rather than the majority Supreme Court opinion.

Such rulings make it clear: the Canadian judiciary, through its deference, enabled political executives to push their civil rights restrictions ever further. This was the situation in January 2022, as Canada’s federal health minister began musing about making vaccination compulsory. The premier of Quebec had just announced that his government would introduce a new tax on the unvaccinated. Ontario had just entered its fourth lockdown when cross-border trucker Brigitte Belton floated the idea of a convoy to protest the “open-air jail” her country had become. Unsurprisingly, a large minority of Canadians rushed to support the cause.

The book dedicates full chapters to the Freedom Convoy and use of the Emergencies Act. The authors regard the federal cabinet’s decision to invoke the Emergencies Act as “the most severe example of overreach and violation of civil liberties that was seen during the pandemic.” An arc that began with cabinet’s attempt to shut down Parliament in March 2020 culminated almost two years later, in a de facto constitutional amendment to crush civil unrest.

We are still awaiting the outcome of the challenge that civil liberties groups brought to the Trudeau government’s decision to invoke the Act. Baron and Van Geyn were present at the April 2023 Federal Court hearings. They describe the Attorney General’s response as “breathtaking”:

The Attorney General argued that cabinet is an apex decision-maker; accordingly, its authority is almost unlimited and mostly unconstrained by the language of the Emergencies Act. The mere assertion by cabinet that it believes itself to be acting reasonably is itself all that is required (60).

It’s a brazen claim in a constitutional democracy—but understandable after the COVID years. Rule by a Leviathan becomes the normal form of government.

The authors take stock with a chapter detailing how democracy and the rule of law were diminished. Saddled with a “large set of case law in the context of an emergency where the courts deferred to governments trampling on long-held rights,” Canadians should brace for a return of COVID-style governance in the future.

At just over 200 pages, Pandemic Panic offers an excellent primer on the peculiar cast of COVID governance in Canada, and on the judicial treatment of selected cases. Throughout, it explains the relevant jurisprudence and offers a nuanced legal analysis that could not be addressed here. Significant for future case law: for every gap in existing jurisprudence, the authors offer an avenue that Canadian courts could have taken had they perceived protecting civil rights to be a priority. One can only hope that two such jurists will be called to the bench one day.

On the other hand, one could also wish them to have taken their critique further. “Over the course of the pandemic,” they state, “we saw the world views of many thoughtful, intelligent friends ossify into uniform narratives.” The authors clearly strive for balance between the two narratives. Yet they may have ceded too much. For example, they appear to accept the rationale for exercising some degree of censorship to counter “misinformation” in a pandemic. While they lament the courts taking judicial notice of government presentation of the facts, they too accept claims since revealed to be false: that hydroxychloroquine has no value as an early treatment, for example, or that legacy media reports of widespread racism or criminal conduct by the truckers in Ottawa were accurate.

Possibly, such concessions were tactical. After all, Baron and Van Geyn aim to persuade of the imperative to protect individual rights during a public health emergency. Questioning the nature or extent of the COVID emergency might only detract from their purpose. Yet, such questions are still worth asking. Luckily for Canadians, political theorists Barry Cooper and Marco Navarro-Génie dive right in.

Most Canadians are said to have been docile—even enthusiastic—participants in this COVID-regime experiment.

The “Plague Story”

Canada’s COVID: The Story of a Pandemic Moral Panic appeared in February 2023. At almost 400 pages, plus extensive endnotes, it is an expanded version of a much shorter book published near the outset of the COVID adventure, in November 2020.

The book covers the same arc of events, yet goes broader and deeper than the legal account. Tracing the virus’s emergence from China, Cooper and Navarro-Génie also consider COVID responses in other countries—with a full chapter contrasting Canada to Sweden. Their review and documentation of the literature is exhaustive, ranging widely across disciplines and media. They further ask not only what happened but why, enlisting a range of thinkers to the task. Comprehensive, even sprawling, Canada’s COVID is filled with startling insights. It is also often very funny.

The book begins by asking why no Canadian government changed course over the COVID debacle—despite abundant signals that the path chosen to fight a respiratory virus was not working. At the base of the intransigence, Cooper and Navarro-Génie identify a story. Espoused by self-proclaimed health experts and imposed by governments, an orthodox “Plague Story” still enjoys widespread public acceptance in Canada. A second “heterodox” narrative sees “nothing but repression of citizens, the destruction of what used to be a constitutional regime, and its replacement by a technologically mediated digital despotism or worse.” 

The authors identify the resulting narrative fracture as the source of a political crisis based in a crisis of thought. Fittingly, they aim to use thought to help overcome it. The book documents the implementation of the Plague Story, its fallout, and the mounting resistance and repression of adherents of the heterodox narrative.

The theoretical frame is sociologist Stanley Cohen’s moral panic, presented as an inherent feature of modern societies. Born in fear, this socio-political process engages four groups of actors, including media, “moral entrepreneurs,” socially authorized knowers, and public opinion. The media first seizes on and simplifies a threat. Opportunistic experts or “moral entrepreneurs” stoke the panic and offer means to solve it. “Socially authorized knowers”— institutional actors including courts, police, politicians, and public health agencies—impose the measures as public policy and offer social control. Throughout, the public is largely passive, “nudged and shaped and corralled into a moral panic by the three smaller groups.” Once the solution is applied, the threat is forgotten or lingers, in Cohen’s term, as a “folk demon” that could reemerge.

Thus equipped, Cooper and Navarro-Génie trace the emergence of the COVID threat from China, which acted “rather like a miasmic mist” that obscured the virus’s likely origins in a Wuhan lab. Moral entrepreneurs propagated fear through their preferred tool, the mathematical model, as well as inventive new concepts like asymptomatic spread. The authors enlist Michel Foucault’s concept of power-knowledge to describe a pervasive new reality created in 2020. A new set of terms—comorbidities, PCR tests, contact tracing, case rates, et cetera—emerged, generating a regime of knowledge that was more political than scientific. Indeed, they stress, COVID power-knowledge often depended on denying scientific truth. One example was lockdowns: “For the suppression strategy to be effective, the basic biology of naturally acquired immunity had to be ignored. It was.”

The book addresses the alarmed response of real experts—for whom science remained a method—to the scientism of the moral entrepreneurs. By invoking power-knowledge, genuine experts could be waved off as peddlers of conspiracy theories. Likewise, the wreckage wrought by lockdowns gave no pause. Cabinet ministers and health officials forged ahead through 2021, ascribing the fallout of their failed measures to the virus instead. The sacrifice of children in particular was puzzling: “at the very least an ethical conundrum seldom discussed and rarely seen because in most societies, parents and grandparents would be willing to sacrifice themselves to protect children.”

The book’s account of governance during the period squares with the one offered by Baron and Van Geyn. With the official opposition reduced to Zoom calls, public policy became “whatever the prime minister felt good about.” By the fall of 2021, the prolonged accountability holiday was taking its toll. Waste, corruption, and ethics violations had also been weaknesses of Trudeau’s government before 2020. As further ones came to light, politicians and public health bureaucrats embarked on a “massively orchestrated disinformation campaign pretending that all was well with the vaxxes.” Trudeau and provincial premiers vilified the unvaccinated. Protestors became dissidents, facing ever stiffer penalties as authorities doubled down.

It is in a sense unfortunate that Chapter 7, “The Democratic Politics of Fear,” is the final chapter of a long book, as it may be its best one. Certainly, it is its bravest. Engaging the philosophy of Kant, Hobbes, Tocqueville, and Arendt, the authors present the concept of a “second reality” created by adherents of the Plague Story: an imaginary world centred on perpetual crisis and salvation from the feared threat. Adherents, notably, inhabit the world their power-knowledge created. Among the inhabitants of “covid world” were judges in the Canadian courts. Those who were unwilling to join them—among them, individual Canadians before the courts—became deviants, collateral damage of an emerging biosecurity state. 

What Now?

Based on these assessments, Canadians have good reason to fear we are up the creek. Both sets of authors expect a reprise of COVID-style governance: at best, a Leviathan unconstrained by pesky judicial review or the text of legislation; at worst, an economically and socially ruinous digital surveillance state, with COVID measures succeeded by ones claiming to save the planet.

Either way, compared to Americans or even Europeans, most Canadians are said to have been docile—even enthusiastic—participants in this experiment, which also featured snitch lines and new surveillance techniques. Yet both books also offer many examples of non-compliance, if not outright resistance to the measures. Whether low uptake of the COVID Alert app, individuals blowing past public health agents at airports or quarantine hotels, or police services refusing to enforce an Ontario regulation for what amounted to carding, non-compliance helped beat back the proposed measures. Unsurprisingly maybe, the most promising means to head off fear-based governance is fearlessness. A significant minority of Canadians showed that too. 

Potentially, despite the capture of our institutions and their incumbents, the prospects of regaining our constitutional democracy are improving. In 2022, civil society re-engaged: the truckers became active agents in reversing the moral panic. In 2023, Canada became the site of the first—to date, the only—inquiry into the harms of the COVID measures to have been led and funded by citizens. The extensive testimony of the National Citizens Inquiry uncovers the harms of the measures—in stark contrast to government-led inquiries in other jurisdictions, which have largely reinforced government decisions taken. Such citizen-led initiatives have a dissident-like quality, fitting to an institutional context as far gone as Canada’s now is. As citizens press to reclaim our institutions, associations offer alternative, politically healthy communities beyond the state—and may help break the ongoing thrall of the Plague Story for a critical mass of Canadians. 

Discussion of the best means to resist is a task for future debates. The first is to remember—dispel the fog of forgetting and inspect what happened in the light of day. As both books note, many Canadians wish simply to forget the excesses of the period. Social censure persists, to the point where simply recounting and assessing what happened becomes a courageous political act. In this, both books succeed admirably. Their authors have performed a rare public service.