The Failure of the Separation of Powers: Why the Courts Are to Blame for the Trials of Canadian Protesters

By Tom Marazzo, Captain (Ret’d), Canadian Army

Most first-world nations have a deliberate separation of powers between the Church and the government, as well as between the Legislators, the Executive Branch, and the Courts. This separation is designed to ensure checks and balances within the government, preventing any one branch from gaining too much power. In the United States, the framers of the Constitution intended for a system where the executive branch, legislative branch, and judicial branch each have distinct powers and responsibilities. However, over time, the role and influence of the executive branch, particularly the President, have evolved, leading to debates about the balance of power.

Similarly, Canada follows a system of government that includes a separation of powers among the executive (the Crown and the Prime Minister), the legislative (Parliament), and the judicial (courts) branches. While the structure aims to ensure a balance of power, the practical dynamics and influence of each branch can vary, leading to ongoing discussions about the effectiveness of this balance. In both countries, the separation of church and state is a fundamental principle, ensuring that religious institutions do not interfere with governmental affairs and vice versa. Overall, while the specifics can vary, the overarching goal in many countries is to protect religious freedom while ensuring that religion does not dominate political decisions.

Why Checks and Balances Matter

The real concern with not having checks and balances between the three branches of government—executive, legislative, and judicial—is the potential for abuse of power, tyranny, and erosion of democratic principles. Here's why it matters:

1. Preventing Tyranny: Without checks and balances, one branch could accumulate excessive power, leading to authoritarian rule. This concentration of power in a single branch undermines democratic governance and can lead to tyranny, where the rights and freedoms of citizens are compromised.

2. Protecting Individual Rights: Checks and balances help safeguard individual rights and liberties by ensuring that no single branch can unilaterally enact laws or policies that infringe on these rights. Each branch has mechanisms to challenge or limit actions by the others, providing a protective barrier against potential abuses.

3. Ensuring Accountability: Checks and balances create a system where each branch of government is accountable to the others. This accountability helps prevent corruption and abuse of power, as each branch has the authority to review and potentially overturn actions that are deemed inappropriate or unlawful.

4. Promoting Fairness and Justice: A balanced system ensures that laws and policies are fairly created, enforced, and interpreted. The legislative branch makes laws, the executive branch enforces them, and the judicial branch interprets them. This separation ensures that laws are applied consistently and justly.

5. Encouraging Deliberation and Debate: The need for consensus and approval from multiple branches encourages thorough deliberation and debate on important issues. This process helps to ensure that decisions are well-considered and reflect a broad range of perspectives, leading to more balanced and effective governance.

6. Maintaining Stability and Order: A system of checks and balances helps to maintain political stability and order by preventing drastic or unilateral changes in government policy. This stability is crucial for economic development, social cohesion, and the overall well-being of society.

7. Fostering Public Trust: When citizens see that their government operates under a system of checks and balances, it can increase public trust in the government. Knowing that there are mechanisms in place to prevent abuse of power and to protect their rights helps build confidence in the political system.

Checks and balances are fundamental to the functioning of a healthy democracy. They ensure that power is distributed and regulated, protecting against the risks of autocracy and safeguarding the rights and freedoms of individuals. Without these mechanisms, the likelihood of governmental abuse and the erosion of democratic principles would significantly increase. Never before have Canadians had such a disregard for the courts and a hatred for the government. All because the courts did not protect the public or their trust.

Violation of Informed Consent

Informed consent is a principle that a person must be fully informed about and understand the potential risks and benefits of a medical procedure or participation in a research study before agreeing to it. A violation of informed consent occurs when this principle is not upheld. While the concept of informed consent is more explicitly detailed in medical and civil law, the Canadian Criminal Code addresses related issues through various sections that deal with consent and bodily harm.

• Section 265(3): This section outlines what constitutes a lack of consent in assault cases, which can be related to medical contexts if a procedure is performed without the patient's consent. "For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of: (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority."

Coercion

Coercion involves compelling a person to act against their will by using threats, force, intimidation, or other forms of pressure. In a legal context, coercion can invalidate consent and can be a factor in various criminal offenses.

• Section 346(1): Extortion addresses coercion by making it a crime to use threats, accusations, menaces, or violence to obtain anything from another person. "Every person commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done."

Criminal Assault

Assault is a criminal offense that involves intentionally applying force to another person without their consent or threatening or attempting to apply such force.

• Section 265: This section defines assault and outlines various forms of assault, including simple assault, assault with a weapon, and causing bodily harm. "(1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs."

The Essential Role of Judicial Independence and the Manifestations of Unchecked Government Tyranny

The judiciary is supposed to act as a critical check on the executive branch. When courts independently review executive actions, they can prevent abuses of power and ensure that laws are applied fairly and justly. Without this oversight, the executive branch could potentially exercise unchecked power, leading to authoritarianism. However, when the judiciary fails to act independently and instead aligns itself too closely with the executive branch, the critical system of checks and balances is compromised, paving the way for tyranny.

During the COVID-19 pandemic, Canadian courts frequently used Judicial Notice to handle cases related to the virus, its spread, and government measures to control it. Judicial Notice is a legal doctrine whereby a court recognizes certain facts as universally known or accepted without needing evidence to prove them. This can include facts that are so notorious or well-known within the jurisdiction that they cannot reasonably be disputed, or facts that can be verified by reference to sources whose accuracy cannot reasonably be questioned.

However, the extensive use of Judicial Notice during the COVID-19 pandemic has highlighted significant issues within the separation of powers. Courts took Judicial Notice of the existence of the COVID-19 pandemic, its widespread impact, and the general measures taken by health authorities and governments to control its spread. This means that the basic facts about the pandemic were not proven through evidence in each case, despite many prominent scientists publicly refuting the government's claims. They also took Judicial Notice of public health guidelines and restrictions issued by authorities, recognizing lockdown measures, social distancing requirements, and the necessity of personal protective equipment without requiring detailed evidence from health officials. Dissenting voices were vigorously censored and silenced, and the courts did nothing but support this notion by claiming that cases were "moot" after the fact.

This use of Judicial Notice during the pandemic was a catastrophic failure of the courts to uphold their mandate of independence. COVID-19 was a novel virus, meaning it was entirely new and unprecedented. Under the definition of Judicial Notice, it is impossible to morally or logically justify its use for something novel. Judicial Notice should be reserved for facts that are indisputable and well-established, not for an evolving situation with ongoing scientific and public health developments. By taking Judicial Notice of government mandates related to COVID-19, the courts effectively enabled the tyrannical behaviors of all levels of government. Instead of protecting the public from potential overreach, the judiciary abdicated its role, thereby facilitating the government's infringement on Canadians' rights.

Canadians did not merely "perceive" government overreach and violations of their rights; they absolutely knew it was happening. The government's actions, supported by the judiciary's misuse of Judicial Notice, led to widespread and tangible infringements on fundamental freedoms. The mandates included unprecedented lockdowns, business closures, masking laws, and vaccine requirements—measures that Canadians had never before experienced.

If there was ever a time for the courts to refrain from using Judicial Notice and to rigorously scrutinize government actions, it was during COVID-19.

By failing to do so, the courts failed to protect the public's rights and freedoms, betraying their essential role in the democratic system.

The Freedom Convoy and the Coutts protest were direct manifestations of unchecked government tyranny and the improper use of Judicial Notice. Canadians, exercising their Charter right to protest, gathered in Ottawa and Coutts to oppose the government's overreach. Yet, key figures from the Freedom Convoy, including Pat King, Tamara Lich, Chris Barber, and the Coutts 4, have been put on trial for mischief. These trials raise serious questions about the judiciary's role and independence:

1. Bias Against Protesters: The Chief Justice of the Supreme Court of Canada has been accused of bias against citizens who peacefully demonstrated during the Freedom Convoy. This perceived bias undermines public confidence in the judiciary's impartiality.

2. Judicial Enabling of Tyranny: By taking Judicial Notice of COVID-19 and the government’s restrictive measures, the courts abdicated their responsibility to independently scrutinize these actions. This failure to act as a check on the executive and legislative branches enabled a tyrannical overreach, compromising the rights and freedoms of Canadians.

3. Vexatious Prosecutions: The ongoing prosecutions of individuals like Pat King, Tamara Lich, Chris Barber, and the Coutts 4 for mischief appear to be vexatious, aimed more at punishing dissent than upholding the law. If the courts had not taken Judicial Notice of the government’s mandates, they might have better protected the public’s rights and potentially avoided the need for such protests.

During the Freedom Convoy, a judge twice ruled that the Freedom Convoy was a legal protest, yet the government and courts continue to target participants with criminal charges. This highlights the sad state of affairs where the public is forced to hold all three branches of government to account, only to face further destruction of their lives through vexatious prosecutions. The courts, by failing to act independently, have betrayed their mandate and the public trust.

Conclusion

The Canadian judiciary's use of Judicial Notice during the COVID-19 pandemic has highlighted significant issues within the separation of powers. By abdicating their role as an independent check on the executive branch, the courts have failed to protect the public’s rights and freedoms. This failure is further compounded by the ongoing prosecutions of Freedom Convoy and Coutts protest participants, who were protesting government actions that many believe violated their rights.

In summary, the judiciary’s failure to act independently during the pandemic has had profound implications for Canadian democracy. It is essential that the courts reaffirm their role as an independent branch of government, ensuring that they protect individual rights and uphold the rule of law, even in times of crisis. Without this commitment, the balance of power will continue to be skewed, leading to further erosion of democratic principles and public trust. The judiciary must recognize its failures and take steps to restore its independence and the public’s faith in the legal system.