Banning large outdoor gatherings was a reasonable restriction of Charter-protected rights, says a Saskatchewan court.
A constitutional rights group was disappointed to hear that the Saskatchewan Court of Appeal dismissed an appeal against the provincial government’s 10-person outdoor gathering restrictions, arguing these restrictions violated their Charter rights.
The presiding judge agreed that they did violate the Charter rights, but in an acceptable way, according to the recent ruling.
The three-panel hearing went before the court and a unanimous decision was released on Wednesday by Justice J.A. Kalmakoff.
The plaintiffs, Jasmin Grandel and Darrell Mills were ticketed eight times and once, respectively, for violating outdoor gathering restrictions of Saskatchewan’s public health order between December 19, 2020, and May 15, 2021.
While the outdoor gathering restrictions were in place, the province permitted numerous public indoor gatherings that greatly exceeded ten people.
The Justice Centre for Constitutional Freedoms provided lawyers to represent the two plaintiffs.
Grandel played a prominent role in organizing the protests and was a speaker at them, according to the decision. Mills attended five of the protests and was issued a single violation ticket.
The plaintiffs’ initial court filing argued that the restrictions violated sections 2 (b), (c), and (d) of the Charter of Rights and Freedoms.
Sections 2 (b), (c), and (d) of the Charter protects freedom of expression, peaceful assembly and freedom of association.
A Court of King’s Bench judge, sitting in Chambers, dismissed the initial application. He found that the two appellants’ Charter rights were infringed, but the infringement was justified under Section 1.
Section 1 of the Charter reads: “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.”
“In a state of public health emergency wreaking severe havoc on the health of Saskatchewan residents, [the Government] was burdened with the immense task of balancing multiple interests,” wrote the Chambers judge, Justice D.B. Konkin, in his initial ruling.
Konkin went on to say that the government’s public health orders violated section 2 (b) of the Charter; however, he said the government had met its burden to establish that the restrictions were reasonable and demonstrably justifiable in a free and democratic society, therefore protected under Section 1 of the Charter.
The two plaintiffs began their appeal by saying that the judge made numerous mistakes.
They argued that the judge failed to grant them standing to challenge outdoor gathering restrictions beyond those they were charged with violating. They also contested the decision not to strike an affidavit filed by the Government and claimed that the judge improperly handled an expert witness’ evidence.
Additionally, the two plaintiffs argued that the judge treated the violations of Sections 2(b), (c), and (d) of the Charter as a single violation rather than analyzing them cumulatively. Lastly, they argued that the judge incorrectly applied the analysis required under Section 1 of the Charter,
Kalmakoff’s Wednesday ruling found that he believes the Chambers judge did not make a single one of these errors. He, therefore, dismissed the appeal completely.
The Justice Centre for Constitutional Freedoms said that the rule of law means laws should be enforced equally, but they were not.
“While the 10-person outdoor gathering restrictions were in effect, the Government of Saskatchewan, including Premier Scott Moe and Chief Medical Health Officer Saqib Shahab, publicly supported large Black Lives Matter protests in violation of outdoor gathering restrictions. Meanwhile, Canadians attending protests against Covid gathering restrictions were targeted and fined only six months later by the same government,” said the Justice Centre for Constitutional Freedoms.
At trial, an infectious disease specialist provided expert evidence suggesting that outdoor transmission of COVID was negligible, especially with physical distancing, but the government relied on the precautionary principle to justify the restrictions.
The lawyer for Grandel and Mills said, “We are carefully reviewing the Court’s decision and advising our clients accordingly.”
