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A person in a brown hoodie and wrapped in a flag holds a copy of the Charter of Rights and Freedoms with the Peace Tower behind him.
A person holds a copy of the Canadian Charter of Rights and Freedoms during the so-called freedom convoy protest on Parliament Hill. THE CANADIAN PRESS/Justin Tang

Canada’s legal disinformation pandemic is exposed by the ‘freedom convoy’

The small minority of Canadian truckers protesting vaccine mandates have made international news, prompted the invocation of Canada’s Emergencies Act for the first time and spurred the resignation of Ottawa’s police chief.

The self-styled “freedom convoy” descended upon Ottawa in the spirit of the Jan. 6. 2021, raid on the U.S. Capitol, unwilling to retreat.

As Prime Minister Justin Trudeau initially hunkered down in an undisclosed location, some protesters waved Donald Trump flags, swastikas and Confederate flags, and even hoisted the Tea Party’s signature “don’t tread on me” flag alongside their signature “Fuck Trudeau” signage.

The protesters oppose any further government intervention, even if aimed at mitigating the risks of a deadly virus that has already killed more than 34,000 Canadians, lessening the burden on health-care workers dealing with overflowing hospitals or protecting those with compromised immune systems or other vulnerabilities.

Pseudo-legal language

Crucially, the protesters have a list of demands they frame in pseudo-legal language. Canadian lawyers Richard Warman and Donald Netolitzky define pseudo-legal phenomenon as “spurious concepts that sound like law, and which may use legal terminology, but that are otherwise unrelated to ‘true’ or ‘conventional’ law.”

At the apparent centre of the so-called “freedom convoy” movement’s ideology is the mistaken belief that any individual freedom or liberty is absolute. However, the Canadian Constitution compels a proportionate weighing of all Charter rights against the threat of COVID-19.

This isn’t to suggest any individual rights-based or Charter objection to scientifically grounded public health directives is automatically in bad faith, or pseudo-legal. Obviously, every claim must be measured on its merits.

The official English document of the Canadian Charter of Rights and Freedoms with the Canadian flag prominently displayed.
The official English document of the Canadian Charter of Rights and Freedoms. (CP PHOTO)

But vaguely asserted and unspecified Charter claims about rights arising from COVID-19 mask and vaccine protocols aren’t the same as actual claims that can be measured or adjudicated.

Nonetheless, the legal profession must earn the authority, trust and esteem that’s invested in it. After all, lawyers — like doctors and other professionals — rely on public trust.

Some might suggest legal or medical opinions are just that — opinions. One medical doctor might think X and the other Y, and the same goes for any two lawyers. But this is rarely true. Most medical and legal opinions are based on facts — for example, vaccination is the best way to prevent hospitalization or death from COVID-19 and the Charter is about the proportionate weighing of rights rather than their absolute enforcement.

The protesters, after taking down their Memorandum of Understanding pledging to bring down the federal government, acknowledged that some misunderstanding had been created by the document. They “clarified” that the spirit of the document was to bring “the government of Canada and all Canadian citizens into agreement; that the Charter of Rights and Freedoms should be upheld for all.”

We agree and suspect most everyone does. However, “freedom convoy” organizers continuously demonstrate through their words and actions that they grossly misunderstand the nature of the protections the Charter provides and the types of rights and freedoms it encompasses.

Misunderstanding the Charter

As Errol Mendes, a constitutional law professor at the University of Ottawa, has stated: “Freedom is not absolute, and not being vaccinated endangers the freedom of others.”

Missing from pseudo-legal iterations of “rights” or “liberties” is an understanding of the careful balancing act of Canadian constitutional law. The Supreme Court of Canada has repeatedly ruled that the freedoms we enjoy in a democratic society are not absolute.

On the contrary, Charter rights, from religious freedom to freedom of speech, are subject to Sec. 1 that “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

As all first-year law students in Canada know, the definitive legal test for the application of Sec. 1 was set out by the Supreme Court of Canada in R. v Oakes when it stated:

“In each case courts will be required to balance the interests of society with those of individuals and groups.”

Although media coverage on the convoy has shown a lack of uniformity in what supporters believe the movement stands for or even whether they’re really truckers, there is credible reporting that some leaders of the movement hold white supremacist views and have association with far right and extremist causes that pre-date the pandemic.

Organizers retracted their earlier manifesto that called for the overthrow of the government and Trudeau’s resignation, but they still appear to support this agenda. They count among their ranks Daniel Bulford, a former RCMP officer involved with the prime minister’s security until he refused a vaccine. Bulford has reportedly surrendered to police after serving as the convoy’s head of security.

Misinformation vs. disinformation

Our ongoing research considers the role of misinformation and disinformation about the law. Misinformation is false information that may be unintentionally spread, while disinformation is a broader category that includes information, typically encountered online, that could lead to misperceptions.

More insidious than misinformation, disinformation includes false information that is deliberately spread.

In our view, since the pandemic began, there are a small portion of lawyers who themselves risk promoting legal misinformation and disinformation that’s damaging to the integrity of the profession. At least one not-for-profit group in Canada that is affiliated with lawyers operates close to, or on, the margins of legitimate legal advocacy and the spread of pseudo-legal misinformation and disinformation.

The Justice Centre for Constitutional Freedoms in particular blurs the line between misinformation, disinformation and legal advocacy in their public education efforts online by relying on propaganda films and hyperbolic language, among other techniques. Slightly less radical outfits like the Canadian Constitution Foundation have an extreme libertarian litigation strategy with an increasingly narrow focus on COVID-19.

We fear that some members of the public might rely on websites of these sort to misunderstand the reality of the law and their rights. We call upon provincial law societies that regulate the profession to issue more and clearer guidelines on these matters.

Manifesto espouses falsehoods

An equally alarming pseudo-legal intervention is the “Free North Declaration,” a bizarre manifesto created by a group of lawyers, most of whom have opted to remain anonymous (probably a wise choice).

The manifesto is also pseudo-legal because it is replete with misinformation and disinformation about the Charter and Canadian constitutional law, stating that “vaccine passports create the infrastructure for a global digital surveillance system” and that, “particularly for children and healthy young adults, (the vaccine) may be riskier than the virus.”

COVID-19 is not the only pandemic that is threatening Canada. So too is the spread of misinformation and disinformation about Canadians’ legal rights. Any argument that the Charter contains absolute rights is false. Canadians must be aware of the presence of misinformation and disinformation about the Charter and their relationship to COVID-19 health protocols.

If the trend continues unencumbered, it risks weakening the rule of law in Canada and eroding Canadian literacy about legitimate Charter rights.

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