Why I still love Canada

A Montreal lawyer rages against the breach of basic freedoms in Canada

The pandemic trajectory in Canada has been depressing. Lockdowns followed by mandates followed by polarization and hate speech. For the past three years, the atmosphere of intolerance and submission has been hard to bear for those who recognize oppression when they see it.

Early on, I noticed in the names and comments of some freedom supporters that they, or perhaps their parents, were likely immigrants from places where freedom was in short supply, such as the former Soviet bloc in Eastern Europe, or Vietnam or China.

A characteristic of those countries was that their citizens were not free to leave or travel without state permission. Indeed, large numbers risked and some lost their lives to leave (think Hungary, Czechoslovakia, etc.). So it was especially chilling that in the fall of 2021, the Canadian government enacted a “travel mandate” that forbade unvaccinated citizens to take planes, trains or boats, in fact locking them into their own country.

This unprecedented and undemocratic regulation has been challenged in federal court by several people, including former Newfoundland premier Brian Peckford, the last living signatory of Canada’s Charter of Rights and Freedoms.

The case was initially dismissed, and an appeal was back in federal court recently, with so much demand to attend the hearing that it had to be viewed online. When I tuned in, I was fortunate to hear a young lawyer from Montreal, Nabil Ben Naoum, present his case.

Listening to him lifted my spirits and started to restore my faith in Canada‘s citizens.

Ben Naoum starts by spelling out the meaning of “travel mandate”, a term that might sound innocuous to those to whom it doesn’t apply.

“The fact [is] that from November 1 until June 22, 2022, in other words for a period of more than eight months, a citizen who had not been vaccinated against COVID could not leave Canada.  I repeat, during this period of almost a year, the only way for a citizen who had not been vaccinated against COVID to leave Canada was to take a rowboat and paddle across the ocean.  I must have said this a dozen times since the trial began, but I'll say it again and again because it seems to me that no vaccinated Canadian can fully integrate and understand the issues at stake. In 2022, this sub-class of citizens, the non-vaccinated, found themselves assimilated to Cubans under Fidel Castro's regime.”

“These six million citizens, of whom I am one (since I was forced to publicly declare my medical record, that I thought was private), found themselves prisoners of their country.”

He then reminds us that under these travel mandates, unvaccinated Canadian citizens abroad could take a plane to Canada, but could not leave again. Unvaccinated passengers were deemed dangerous when leaving the country, but not when returning to it. This is the first glaring contradiction. There are others:

“What is even more appalling is that the vaccination mandate managed to create a situation where, for the first time - and I would ask you to find me another example, if there is one - the status of Canadian citizenship itself has become a criterion of discrimination, before even being unvaccinated. By a madness that only a government decision-maker could have invented, it was decided that if you were an unvaccinated foreigner, you could fly within and leave Canada without any problem, but if you happened to be a Canadian citizen, you could not. This demonstrates that there was nothing sanitary or scientific about these measures.”

He continues: “I am amazed at the level of intellectual dishonesty required to defend this policy.   It's absolutely incredible in the sense that Canadian citizenship is supposed to confer rights and privileges, not prohibitions.”

“It wasn't just people who had priority over an unvaccinated citizen, but animals too. I'd like to share a personal story that may illustrate the reality of being an unvaccinated Canadian citizen in 2022.  Shortly after I filed my application for judicial review, I was talking with a colleague at the courthouse who explained that she was going to fly back to see her family in Europe and that she would be taking her Chihuahua with her.  So I had this great moment of loneliness when I got home and stared at my dog for a long time and had this realization. I realised that a dog has more freedom of movement than an unvaccinated citizen in the Canada defended by the Attorney General.”

Another irony – negative COVID tests were not accepted to permit travel: “Our federal decision-makers decided that an unvaccinated person with a negative COVID test was more dangerous than a vaccinated person who had not been tested.”

The only way to leave the country was “to be raped…. I refused to be violated. I refused to be injected against my will…“

“Contrary to what has been said, this is not a health debate, it's not a pandemic management debate, it's a rule of law debate. It's not just a violation of the rights and freedoms of Canadian citizens, it's a violation of human rights  Let me remind you of both the Canadian Charter of Rights and Freedoms and the Universal Declaration of Human Rights: "Everyone has the right to leave any country, including his or her own…"

A violation of human rights is never moot or theoretical, Ben Naoum continues – challenging the federal court’s decision last year that the court case was moot because the travel ban had recently been lifted. To support his argument, he then quotes at length from a speech by, wait for it. . .a current federal court judge!

In 2016, Judge David Stratas laid out why the defence of rights and freedoms is so crucial in a democracy like ours:

"We like to think that our Constitution and our rights and freedoms are permanent features of the way we live. That's because in today's world, they are obvious for most people. But the reality is that we live in four dimensions, and the fourth dimension is time. What we have today, we have acquired, but time passes and circumstances change.”

“Who could have imagined in 1930 that within a decade millions of Jews would be exterminated simply for being Jewish? Is that too extreme an example? In that case, in 1940, who would have thought that within ten years, thousands of North Americans of Japanese descent would have had their property confiscated and been exiled? Is that too long ago for you? Then in 1960, who would have thought that hundreds of our fellow Quebecers would be sent to prison without charge, without trial, on nothing more than suspicion?”

“Just because you think we're living in peaceful times doesn't mean it will last. What history teaches us is that it is bound to change."

Judge Stratas continues. 

 "Now, with that in mind, imagine the most extreme example that could befall us 30 years from now.  Let's say 30 years from now there's an imminent national emergency, something very serious for our security. The government passes laws that many will say are necessary, arbitrary arrests, confiscation of property, suspension of privacy for a certain category of people, whatever you can imagine, think extreme, think radical. The issue of government control versus the rights and freedoms of citizens will then come before a judge. Do you want that judge to decide the issue on the basis of constitutional principles that have been applied for decades, if not centuries, or do you want that judge to come to a conclusion based on his or her personal view of what would be appropriate in the circumstances? Which approach do you prefer? Which approach promotes public support, order, social cohesion? Which approach promotes public obedience, especially in a context of fear and anxiety? In my view, the answer is obvious. We need judges who take an approach that is faithful to the principles that have been rooted for decades, if not centuries. The second approach has murky effects, where we see decisions being treated as political events, where some will see judges as servants of the politicians who put them in power."

Following the reasoning of the Honourable Judge, Ben Naoum goes on to imagine a scenario:    

“Imagine a health problem caused by a disease very similar to the flu; imagine that there is a vaccine against this disease, but that even if we receive it four, five, six times, we can still contract or transmit it; imagine that this vaccine carries the risk of significant side effects. Imagine now that this vaccine will create two classes of citizens in Canadian society, the vaccinated and the non-vaccinated, and that the federal government will order everyone to be vaccinated, or else the non-vaccinated will be excluded from life in society: they won't be able to go to the gym, they won't be able to go to restaurants with their spouse, they won't be able to go to shopping centres. That is not so bad, you might say. So let's go one step further. What if unvaccinated people couldn't work? They couldn't get unemployment insurance if they lost their jobs? They couldn't get organ transplants, they'd be left to die like dogs?”

“Let's imagine, still in this hypothetical scenario, that they decide to protest peacefully against these measures and demonstrate in the capital.  Imagine that the government declares martial law to put an end to the demonstrations, which would be described as an occupation. That they would be told that they are uneducated, that they don't know how to handle things, that they are disruptive. That we do not listen to them because they are not going through the proper legal channels.”

“The Prime Minister would ask how such a fringe group can be tolerated. Imagine that the citizens who took part in the demonstrations will have their bank accounts frozen, and finally, that these sub-citizens are beginning to get fed up with the situation of being locked inside with no prospects for the future, and that for the first time in their lives they have the idea of leaving Canada, well, imagine that they won't be able to do that, not even with a negative test for the disease. They will remain in Canada against their will.” 

“…With this scenario in mind, let me ask you a question: would we then be fully democratic in Canada? Would we still have a system of checks and balances, or would we have descended into health fascism? Would we still be in a jurisdiction where the rule of law prevails, or would we have become the laughingstock of the world?” 

If, like me, you were horrified by most Canadians’ readiness to exclude, persecute and demonize millions of their fellow citizens, you are by now thoroughly enjoying Ben Naoum’s words and the force of his arguments. He then turns to other examples to underline the absurdity of the court declining to hear the complaint because it was in the past:

“How far can a government violate fundamental rights and then give them back at one minute to midnight and get away with it? If Canadian citizens were deprived of the right to vote and then given it back, would their lawsuit be moot? If they were deprived of their nationality, making them stateless, and then given it back, would they still have a claim? If they were deprived of their freedom of movement and then had it restored, would it suddenly be ‘moot’? Where do we draw the line? . .”

“You know, I have a sentencing hearing tomorrow in Montréal.   One of my clients has pleaded guilty to armed robbery. The stolen property was returned to the victim. Why are we trying to determine the appropriate sentence for my client? The victim has recovered his stolen property.   The case has become moot. More generally, why did we bother with a Nuremberg trial? The war was over. . . . I'd like to remind you that this [Nuremberg] trial led to the Universal Declaration of Human Rights, which proves that sometimes it's worth having a hearing.”

Ben Naoum continues:

“What kind of society do we have where the government can defend itself and the citizens cannot? Shall I tell you where this legal drift is leading? This situation, where the government can pass laws, repeal them right before the hearing and get away with it without any judicial review, is taking Canada into the realm of banana republics - and believe me, I know a lot about that - a society where citizens never dare to assert their rights because there's this collective gravity where everyone knows that it's pointless, that against the government you're going to lose in advance, and this climate breeds cynicism, and it breeds crime.”

Finally, he comes to a soaring conclusion:

“I've dealt with cases of violence, procuring, attempted murder, sexual assault, theft, fraud, drug dealing, everything you can imagine. I have never been so disgusted – and I weigh my words carefully – as I am with this one. To unilaterally decide that millions of citizens no longer belong to the corpus of society is what Hannah Arendt called 'the banality of evil'. . . .”

“At no time in my career has a prosecutor said to me, ‘Colleague, exceptionally, your client should not have the benefit of the presumption of innocence’, ‘exceptionally, your client should not have the right to counsel’, ‘by way of exception, your client must remain in custody without a bail hearing.’ This was the first time I heard the government's henchmen say: ‘Exceptionally, you should not be allowed freedom of movement.’   By their behaviour they have bastardised the rule of law. They have promoted hatred of others. They had a chance to be great, to make a difference, a once-in-a-career chance. They chose to submit instead.”

“I'd like to take this opportunity to conclude by saying that I will stand in their way every time they decide to defend the undefendable. That the blackmail and violence of a state will never work on me. That I will always remain faithful to the values of non-discrimination and consent. Sadly, there is no vaccine against totalitarianism.”

Thank you, merci, Maître Ben Naoum, from the bottom of our hearts. You have captured what millions of Canadian felt – outrage and sometimes despair. But also determination to hold onto democracy and justice when all around us, people were losing their heads.

These words were heard loud and clear across Canada. Let’s hope the federal court justices also heed them and make the right decision on travel mandates. Those of us whose families once suffered at the hands of police states will never forget and will never stop defending every person’s fundamental rights. Our diversity makes Canada great. And our diversity will keep us free.

Read the complete transcript of Nabil Ben Naoum’s plea to the Federal Court here.