Silenced Voices: Exploring the Impact of the COVID-19 Response on Healthcare Professionals' Freedom of Expression and Patient Care in Canada.

Silenced Voices: Exploring the Impact of the COVID-19 Response on Healthcare Professionals' Freedom of Expression and Patient Care in Canada.

This paper argues that Canadian governments and regulators unjustly violated healthcare professionals’ freedom of expression during the COVID-19 pandemic (the “Pandemic”), impairing their ability to care for patients. These violations occurred because of Canada’s unplanned knee-jerk response to the Pandemic. That response placed public policy and perceived public welfare ahead of healthcare professionals’ freedom to express themselves professionally. Some healthcare professionals quickly recognized the problem. They knew that without a significant course correction, placing the poorly defined and nebulous idea of ‘public good’ ahead of established fundamental individual rights would magnify both short and long-term risks to their liberties and would have long-lasting repercussions for the Canadian public and healthcare.

These brave healthcare professionals fought for course correction in the courts. They hoped judges would recognize the Pandemic response posed grave risks to civil liberties. They pleaded with the court to reaffirm and uphold their fundamental rights, which are substantive and important such that they should never be lightly interfered with. Mostly, Canadian judges were unwilling to listen. They choose instead to liberally use ‘judicial notice’ to support discretionary administrative decisions based on specious government Pandemic policies.[1]

Unfortunately, Canada’s short-sighted Pandemic response at the executive and legislative levels, and the court’s failure to provide judicial checks and balances, has reinforced a culture of fear among healthcare professionals, whose fundamental rights are now subordinate to “public good”. From the Pandemic some learned that, despite declarations that the Canadian Constitution and the Charter of Rights and Freedoms[2]are the supreme law of the land, healthcare professionals cannot rely on them for adequate protection from undue interference with their fundamental rights. And the result was inevitable; when you silence healthcare professionals, patient care suffers.

In this paper, my goal is to explore the factors that led to the point where both government authorities and courts showed a willingness to reduce the rights of healthcare professionals. I will review the trust relationship between patients and healthcare professionals to understand how it is supposed to be supported by Canada's international obligations and domestic laws, and how this trust was broken. Next, I will examine how real healthcare professionals were treated by the courts when they sought to uphold their fundamental rights including their right to freedom of expression. Finally, I will make recommendations for the future, including constitutional reforms and the recognition of a new right under Canadian law. 

Urgent Matter

Canadians accept that governments across Canada placed massive demands on healthcare professionals during the Pandemic.[3] There were obvious resource shortages during a period of increased need for the healthcare system.  Healthcare professionals rose to the challenge, even putting the collective good ahead of personal safety.[4] In the early days of the Pandemic, healthcare professionals were openly celebrated. Dangerous times called for swift action. Arguably, the Canadian public benefited from these herculean efforts. Together, Canadians owe a debt of gratitude to healthcare professionals.

However, there is an unspoken dark side to these efforts. Healthcare workers were often forced to follow public-mandated pandemic protocols whether they were contrary to their professional opinions, beliefs, or fundamental rights. Those few healthcare professionals who questioned pandemic protocols were quickly silenced. Regulators meted out punishment and removed them from positions of power and influence, and there was little if any recourse to fight these discretionary administrative decisions.[5] Contrary to governments’ widely stated intentions of protecting the public, their actions against healthcare professionals ironically put healthcare at risk. According to Amnesty International, “Governments are causing unnecessary COVID-19 deaths by trying to silence healthcare workers, journalists, and researchers.”[6]

It is not hyperbole to state this was and continues to be an urgent matter where the fundamental rights of Canadians are at stake. If the Canadian government allowed or even encouraged the rights violations of once celebrated essential healthcare professionals, the average Canadian’s rights would be no better protected. Recall, the Pandemic has not been declared over and…

 For a copy of the complete text, please email jonah@healthlawfirm.ca.

Sources:

[1] Pardy, Bruce. “Covid Has Cost Canadians Their Freedom. It Must Be ...” National Post, 20 Nov. 2021, nationalpost.com/opinion/bruce-pardy-covid-has-cost-canadians-their-freedom-it-must-be-restored. Accessed 13 Feb. 2024, and See: Macnab, Aidan. “Courts Can Rely on Government Recommendations on Covid-19 Vaccination, Find Two Recent Rulings.” Law Times, 17 Apr. 2023, https://www.lawtimesnews.com/practice-areas/family/courts-can-rely-on-government-recommendations-on-covid-19-vaccination-find-two-recent-rulings/375205. Accessed 18 Feb. 2024.

[2] Canadian Charter of Rights and Freedoms, Part 1, Constitution Act, 1982.

[3] “Study: Quality of Employment of Health Care Workers during the COVID-19 Pandemic.” Edited by Statistics Canada, The Daily, Government of Canada, 10 Aug. 2023, www150.statcan.gc.ca/n1/daily-quotidien/230810/dq230810a-eng.htm. Accessed 15 Mar. 2024.

[4] Brophy, James T., et al. “Sacrificed: Ontario Healthcare Workers in the Time of Covid-19.” NEW SOLUTIONS: A Journal of Environmental and Occupational Health Policy, vol. 30, no. 4, 11 Nov. 2020, pp. 267–281, doi:10.1177/1048291120974358.

[5] See for example the case of Dr. Francis Christian v. Saskatchewan Health Authority, the College of Medicine, et. Al., and see, Giles, David. “USASK Suspends Doctor Calling for ‘informed Consent’ for mRNA Vaccines.” Global News, 23 June 2021, globalnews.ca/news/7975431/usask-doctor-francis-christian-mrna-vaccines/. Accessed 24 Mar. 2024.

[6] Taylor, Luke. “Covid-19: Silencing Health Workers, Researchers, and Journalists Caused Unnecessary Deaths, Says Amnesty.” BMJ, 19 Oct. 2021, doi:10.1136/bmj.n2552.

[7] Supra note 1, Pardy.