Totalitarian Police State Contradicts Ontario Law

By Peter W. Dunn, PhD

(Written form of the speech delivered at anti-lockdown protest at Bathurst and Rutherford, Thornhill, Ontario, May 23, 2021)

My name is Peter Dunn. I want to tell you why I am protesting despite frequent warnings that my exercise of a fundamental Charter right is a violation of the Reopening of Ontario Act. Yes, the York Regional Police have tried to bully us to stop protesting, and indeed, they have succeeded in getting me to retreat 3 out of the last four protests.

I came to Canada for the first time in 1986 and studied at Regent College in Vancouver. I did two master’s degrees, and I went on to do a PhD at the University of Cambridge, England (1996). My main area of competence is the reading and interpretation of ancient texts; and so today, I will interpret the Reopening Ontario Act for you and for the police. I am not a lawyer, but I have confidence in my skills as an interpreter of the intent of texts, an art we call in our field, “exegesis”.

I have been living in Canada continuously since 1995 and in 2011 I became a Canadian citizen. During that time, I had to read the Charter of Rights and Freedoms to pass an exam to qualify to take an oath of citizenship. Since 2011, I’ve been a law-abiding citizen. I pay my taxes; I don’t do violence against my neighbors; I haven’t even gotten so much as a speeding ticket since becoming a citizen. Moreover, I have a history of co-operation with the York Regional Police.

So then on March 17, 2020, Doug Ford announced the first lockdown. I immediately began to decry on Facebook that this lockdown was a severe violation of human rights, including the Canadian Charter of Rights and Freedoms .

Finally, on 25 April, a protest took place here at Bathurst and Rutherford, and this is my neighborhood, and so I participated. The York Regional Police were out talking to protestors, but they handed out no tickets. Then at the May 2 protest, the police told the protestors that they would be handing out tickets after a 15 minute warning to disperse. Then York Regional police handed out tickets to select individuals and the majority went home by 1:30. The third week of this protest (May 9) the police told David Menzies of Rebel News that the reason why people don’t have a Charter Right to protest is because of section 1 of the Charter Rights and Freedom:  “The Canadian Charter of Rights and Freedoms 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.”

The police didn’t get around to giving me a ticket and I went home after an hour and half. Last week however I arrived a little late, around 12:45, and the police immediately approach me. Maybe they recognized me. They then told me that they were warning everyone and that we had only 15 minutes before they would start writing me a ticket. At that point, another officer said I had the right to protest, provided I went to the corner and protested by myself.

But I want to examine the York Regional Police’s claim that because of section 1 of the Charter of Rights and Freedoms, we know longer have section 2 rights. This claim doesn’t pass my first test, which is the bullshit test. Everything I’ve learned to this point in Canada, and everything I’d ever seen in this regard–e.g., allowing for example BLM protestors to carry on without tickets, and even just a couple weeks ago, Palestinian protestors in downtown Toronto—no tickets; everything told me that I still had Charter Rights, that the police with guns couldn’t so easily annul my rights on the mere pretext of the Reopening of Ontario Act.

The Reopening of Ontario Act depends on Emergency Measures and Civil Protection Act (EMCPA) for its authority to invoke an emergency. What it actually does is give Doug Ford the unilateral and dictatorial right to call an emergency and to reinstate lockdown and stay at home orders that were declared under the EMCPA. So thus, the EMCPA, which is multiple times invoked in the Reopening Act, remains valid regarding the emergency measures that are thereby declared. And here is the explicit wording of the EMCPA regarding the Charter of Rights and Freedoms:  “The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms.

The York Regional cops tell me that I no longer have charter rights due to the Reopening Act limiting via section 1 our section 2 rights in the Charter. However, neither the Reopening Ontario Act nor the EMCPA ever appeal to section 1 nor say that its intention is to limit Charter Rights due to a declared emergency. The English language is clear in terms of what the words, “subject to” mean. It means “dependent or conditional upon”. I.e., the Charter Rights are deemed to be higher law than Doug Ford’s emergency decrees.

So in fact, the EMPCA, and thus also the Reopening Ontario Act which invokes the EMCPA for its emergency orders, says the exact opposite of what these officers claim. Rather than take away our Charter rights, the law says explicitly that any emergency measures must be subject to these rights.

Despite this clear wording of the EMCPA, our battle remains uphill. A knowledgeable person reacted to this claim of mine  in this way:  “The real problem with our Charter is that the judges have too much power due to s. 1. Whether the legislation specifically mentions s. 1 or not, s. 1 can be used to limit our constitutional freedoms anytime the judges rule that it is “demonstrably justified in a free and democratic society.” But who makes that determination? Unaccountable, unelected judges. But whatever the law is, it’s up to the police to enforce it. If the police don’t enforce it, then it doesn’t matter what the law is. So in a way, the police do hold the real power.”

Now I also want to discuss the history of Federal Emergencies Act which is also the background story of the EMPCA. The Canadian government on it’s website (here): The federal Emergencies Act replaces the War Measures Act which has been criticized because it resulted in human-rights atrocities, especially the confiscation of property and the internment of the Canadian residents of Japanese ancestry during WW2. Thus, the Charter of Rights and Freedoms were created and now our existing emergency laws are explicitly said to be “subject to” the Charter, not the other way around.

And what do we have today? Atrocities. People are losing their businesses; children are kept in states of captivity; all of us under house arrest without habeas corpus. I urge you, the York Regional Police, that you should be careful, lest you find yourselves on the wrong side of history.

So with this speech, I urge the police to respect the EMCPA and our fundamental Charter rights and back off and let us do our protest. If you don’t, then you, the police, not COVID 19, not Justin Trudeau, not even Doug Ford, but you, the guys with the guns, have plunged our province into a Totalitarian Police State. I urge you, therefore, honour your oath of service, and respect our Charter rights. Thank you.