Case against COVID-19 restrictions a lesson in rights vs. privilege: human rights museum CEO

Certain limitations on freedoms — such as restrictions in times of a pandemic — should not be mistaken for discrimination, says the CEO of the Canadian Museum for Human Rights.

Isha Khan applauded Thursday's decisions from Manitoba's Court of Queen's Bench that dismissed a challenge against health orders put in place by the province last year to fight the spread of COVID-19.

"We have rights under the Canadian Charter of Rights and Freedoms, but there are reasonable restrictions at times, depending on what's going on, and this is one of those cases," Khan told CBC's Information Radio host Marcy Markusa on Friday.

"That's how we're set up, and I don't know that everyone understands that."

Seven rural Manitoba churches and three individuals launched the court challenge last December, arguing the restrictions imposed by the health orders were unjustified violations of charter-protected freedoms of conscience, religion, expression and peaceful assembly.

Chief Justice Glenn Joyal ruled the health orders were reasonable limitations on charter rights in the context of the pandemic and based on "well-accepted public health consensus."

Khan — a practising lawyer before she took on the role of CEO at the Winnipeg-based national museum — was glad to see the health restrictions tested in the courts so that people can better understand the misconceptions around what is a right and what is a privilege.

"There's a lot of talk about discrimination right now. People are afraid. Things are changing. We've got governments making decisions about just things that we never thought would happen," said Khan, who served as executive director of the Manitoba Human Rights Commission from 2015 to 2019 and before that, was the commission's senior counsel.

"At the end of the day, we live in a system of rules and laws. That's how we set ourselves up. We've been living with laws and restrictions around us all the time. We just haven't thought so much about it the way we are now because this feels different."

Caution is needed when people link public health measures with human rights abuses or discrimination, she said.

Vaccine passports, testing mandates, gathering limitations and mask mandates are among things that have come into play over the past 19 months of the pandemic, with some suggesting they are discriminatory.

Discrimination, however, is treating a person differently on the basis of rights that are entrenched in law: age, sexual orientation, disability, gender identity, race, colour, language or religion, said Khan.

"We're talking about rights that you're born with — rights that go to the root of who you are as a human being," she said.

"I think there is an extrapolation about, you know, 'I'm negatively impacted so that means that my human rights are being infringed in some way.' The misconception is that we get to kind of take our discomfort and place it in a context of human rights, [when] it isn't always that."

The court challenge is an example of people testing our laws, and that's good in uncertain and evolving times, Khan said.

"But [Joyal's decision] tells us that this is a situation where governments have had to make quick decisions in the interest of the public good or our collective good," she said.

"I'm glad to see that this issue was tested in our courts. It's why we have a justice system and it's good to see some clarity."