Juno News - Saskatchewan upholds outdoor gathering limit

00:00:00.000 We'll move from this issue to a much more real constitutional matter, and that is the decision

00:00:15.240 that came down yesterday from the Saskatchewan Court of Appeal upholding a ban that the government

00:00:21.080 had on gatherings outdoors. Now, one of the things that I, this came up the other day,

00:00:27.920 there was a gentleman who I've interviewed in the past, Kevin Gaudet, who was fined for not staying

00:00:33.160 in a quarantine hotel, and he had shared about this on a thread on X, and I had said when I

00:00:38.320 retweeted it or quote tweeted it that how surreal it seemed that this was something we went through,

00:00:43.340 that the government was locking people up in quarantine hotels and giving massive, massive

00:00:47.660 fines. I said, but it's not surreal. It was very real. Government did it, and they have tried to

00:00:52.220 basically forget this, but the legal process moves slowly at times. These things are still working

00:00:57.600 their way through the courts, and with the exception of maybe a small handful of cases,

00:01:03.180 courts have made absolutely abysmal decisions on this. The one in Saskatchewan, which we'll talk

00:01:08.020 about shortly, and also this week in British Columbia, the BC Supreme Court has upheld the

00:01:13.940 healthcare workers vaccine mandate, which is pretty much as unscientific at this stage as a gathering

00:01:20.820 restriction on outdoor gatherings of more than 10 people. Joining me on the line now is Marty Moore.

00:01:27.900 He leads a team of lawyers across Canada funded by the Justice Centre for Constitutional Freedoms,

00:01:33.320 and just as a matter of disclosure, I sit on the board for the JCCF, although that has no bearing on

00:01:38.820 this interview. Marty, good to talk to you. Thanks so much for coming on today.

00:01:42.820 Good to talk to you. Thank you, Andrew.

00:01:44.360 So let's start with what the actual decision was in Saskatchewan. I mean, this was a clear-cut

00:01:50.240 freedom, freedom, or a constitutional freedoms case, your right to assemble, your right to gather

00:01:55.480 outdoors, and the Court of Appeal has still said the justifications that the government held were

00:02:01.800 reasonable. That's right, and the word reasonable there is obviously doing a lot of work. The court

00:02:07.660 has upheld a lower court decision that found that it was just fine for the government to prohibit people

00:02:13.700 from protesting outdoors with any more than 10 people. And if you have a gathering of 10 people

00:02:20.340 outdoors, then you call that a protest. You're really stretching already. While simultaneously,

00:02:24.800 the government was, in fact, allowing much greater people to gather indoors. And the facts in this case,

00:02:32.620 Andrew, were not controversial. This was not a great battle of the experts, if you will.

00:02:36.660 Everybody was admitting it's much safer to be outdoors. In fact, there was no evidence whatsoever of a

00:02:42.740 single COVID transmission linked to an outdoor protest during the entire period of COVID in

00:02:48.340 Saskatchewan. But yet, when it came to restaurants and bars, the public health officer there was

00:02:53.700 estimating 30 cases a day from those restaurants and bars. And guess what had the restrictions?

00:02:59.620 Outdoor protests did. And in a bar, you could gather, as long as you only have four people at a table, 0.51

00:03:05.620 you were fine in Saskatchewan. But don't gather with more than 10 people outdoors in a park, regardless of how far

00:03:10.100 you are apart. So this is the current decision that's come down. The court says, well, government

00:03:15.140 is required deference, and the precautionary principle needs to be respected here as well, Andrew.

00:03:21.940 And what is that for people that haven't had to spend their lives immersed in this like you have?

00:03:26.900 Well, the precautionary principle is designed to allow for government to make decisions where there's a

00:03:33.940 lack of evidence. And there's a high risk of harm if they don't act. Well, here in this case, it's been

00:03:40.420 known for decades and decades that respiratory viruses don't transmit outdoors with any significant

00:03:46.500 or real risk there. But yes, in the case of COVID, we threw all of our past knowledge out the window

00:03:54.100 and claimed that the precautionary principle needs to be used to ban things that the government really,

00:03:59.380 you know, had problems with, like an outdoor protest, which, you know, obviously is the only way for

00:04:04.180 people to really voice their objections to the government's current policy. Now, the precautionary

00:04:08.980 principle was applied, you know, in a bizarre way in Saskatchewan, because as I mentioned, when you could

00:04:14.340 gather indoors and much more risky settings where there's lots of case spread happening on a daily

00:04:19.140 basis, we don't apply the precautionary principle to that. That's economic activity. But when it comes to

00:04:24.820 these pesky protesters outdoors, well, we'll apply rigorously the precautionary principle,

00:04:30.100 because one of them could get sick, Andrew, even though we have no evidence that anybody got sick,

00:04:34.340 despite mass protests going on during COVID, as we know from the Black Lives Matter protests.

00:04:41.060 I haven't read the full decision yet. So I didn't see it there. But I wanted to ask you about it,

00:04:45.940 because in some of these decisions in other courts and other similar fact patterns, but different cases,

00:04:52.500 judges will hedge by saying, well, based on the information at the time, and they'll kind of give

00:04:57.460 government a bit of a weasel way out there by saying, well, it might have been reasonable for

00:05:01.300 them to think that this was a reasonable policy. Is that something that was engaged here as well?

00:05:06.740 Well, certainly the decision tries to say we can't, you know, second guess decisions made during the

00:05:11.380 time. But these were decisions that were months and months in the making. The 10 person limit was

00:05:15.780 initially in place during the Black Lives Matter protests. It was never enforced during that time,

00:05:20.820 of course. Then it was reimposed in the winter there. That entire time period, we have statements

00:05:27.940 from the chief medical health officer in Saskatchewan saying, it's much safer to be outdoors. Please

00:05:32.660 gather outdoors and even statements commenting on protests that look, you know, it's a restriction,

00:05:38.020 it's guidance, not to gather with more than 10 people, but we totally get people desire to be

00:05:43.460 outdoors protesting for Black Lives Matter. That was not applied, of course, when it came down to

00:05:47.940 people protesting government restrictions, in which case the weight of the law was brought down with

00:05:52.340 full force and a vigor actually unmatched in any other province, more national across the country.

00:05:58.820 I have not seen a greater prosecution and zeal to punish those who prosecuted or who protested

00:06:05.620 government restrictions than I've seen in Saskatchewan. And those prosecutions are actually going on in

00:06:10.420 this day. We've had dozens of cases there in Saskatchewan on that basis, but only those protesters

00:06:15.860 against the government, no one that was protesting other issues, Black Lives Matter, Palestinian

00:06:19.940 Israel issues, or even LGBTQ matters, all of those things were going on as well. They were all subject

00:06:24.740 to the same restrictions, but only one group was targeted. So there's a real rule of a law issue

00:06:28.580 here in Saskatchewan as well. There's a part of this that I find particularly insidious. Now,

00:06:33.540 I think any restriction on freedom to protest is a very serious thing, but it's especially concerning

00:06:40.020 when government puts a policy in place that innately and directly prohibits protest of that policy.

00:06:48.100 Because you're basically saying that you should not be allowed to express legally your displeasure

00:06:53.140 with the very thing that we're using to prevent you from doing it. Absolutely. And that's why the

00:06:59.940 courts are there. That is why under the Canadian Charter of Rights and Freedom, it's a fundamental freedom

00:07:05.860 to peacefully assemble and express publicly in this very powerful medium, your opposition to government

00:07:13.460 action. And when we see in this case, the courts repeatedly using deference to the government for

00:07:20.980 this kind of direct prohibition, it is shocking and it's very much a concern. And to be honest, Andrew,

00:07:28.740 the courts in Canada on the issue of COVID restrictions have really failed to earn Canadians trust.

00:07:35.700 And when they say, look, and just quoting from the decision itself, it's like, even if the

00:07:40.820 differential treatment between unstructured outdoor gatherings and retail settings could not be

00:07:45.140 justified on an entirely public health rationale, which is an understatement, the court says, well,

00:07:50.900 that's not really determinative of whether it's justified because the government has deference to,

00:07:55.300 quote, preserve economic activity and other social benefits. And so in other words, if the government

00:08:01.220 chooses to violate your rights and allow economic activity, which is more risky to go forward,

00:08:05.780 the courts are right now saying, we're fine to turn a blind eye to that.

00:08:09.620 Yeah, I wanted to take a bigger picture look at this. I mentioned in the preamble,

00:08:13.220 the BC case this week, and I don't think you were engaged in that case, but I'm sure you followed

00:08:18.420 this and other similar ones. And you're right when you say that there's been this overwhelming

00:08:22.500 attitude of deference. And I'm really hard pressed to come up with any wins. I mean, obviously the

00:08:27.780 federal court did shut down the Emergencies Act, which was a positive, I think, decision emanating from that 0.73

00:08:33.700 era, but that wasn't actually a COVID restriction or a COVID policy. The Emergencies Act was problematic

00:08:39.540 for other reasons. I mean, where have been the wins on anything else COVID related?

00:08:44.180 Well, yeah. And I mean, actually we were involved there in the BC cases and with the medical health

00:08:49.780 workers. And there is a small win there, of course, we do have an order from the court saying Dr. Henry

00:08:56.740 now must reconsider this prohibition of virtual workers. They should be hired back. So there's

00:09:05.700 something there to latch on to. But that's the win is that maybe just maybe it's not reasonable to

00:09:11.220 force people who work from home to get a vaccine. That's about as low a bar as we get in Canada.

00:09:16.580 Right. And we've now found the courts, this is the first time as I'm aware of a court actually being

00:09:21.300 willing to essentially say that we've seen some arbiters. Yeah, the Canada Post arbitration said

00:09:26.180 something very similar this week. When it comes to COVID restrictions, of course,

00:09:30.100 we filed a case in BC against the ban on outdoor protests, the government actually conceded that

00:09:35.620 violation. And then in Alberta, we struck down the restrictions on the COVID restrictions on the

00:09:41.060 basis, not of the charter, but on the basis that they are illegally issued by Dr. Dina Hinshaw rather

00:09:45.860 than what they were in fact, the cabinet regulations. And so when the winds come, they're far and few

00:09:52.180 between on the COVID restrictions themselves. Of course, we've had many victories at trial,

00:09:55.940 many dropped charges, but on the charter merits themselves. The courts have really let Canadians 1.00

00:10:02.020 down to this point. The Supreme Court has yet to weigh in. We have seen the Taylor case from New

00:10:08.100 Finland recently being granted leave. It's hard to say whether the Supreme Court is going to get to the

00:10:12.500 merits of COVID or whether they're going to get to this issue of mootness, where we've seen courts

00:10:17.540 refuse to even consider COVID restrictions because, oh, well, that was in the past. So that's a live

00:10:22.900 issue in the Taylor case. And maybe the court will get past the mootness issue and get to the merits.

00:10:27.140 We're not sure. But it's a possibility that here this protest restriction case from Saskatchewan

00:10:32.020 would also be seeking leave from the Supreme Court. The Supreme Court's been rather not too generous

00:10:37.700 in granting leave to appeal. But it does, I think, behoove the courts to fight back and actually seek

00:10:45.620 to regain Canadians trust because the courts are the ones under the charter through section one that are

00:10:52.420 there to defend Canadians' fundamental rights and freedoms. And when they fail to do that,

00:10:56.340 they lose Canadians' trust. And I think we've seen that significantly in Canada and a lot more

00:11:01.460 discussion of, well, maybe if the courts are losing Canadians' trust, it's going to fall to the

00:11:05.940 legislatures to now be the defenders of people's fundamental rights and freedoms. And if the courts

00:11:10.340 agree or not, politicians are going to have more latitude to regard or disregard court decisions.

00:11:16.500 Yes, I've got a long-standing frustration with mootness, which conveniently allows governments to

00:11:23.140 skirt accountability and then do the same thing again elsewhere. And I mean, not being a lawyer,

00:11:27.380 but I would point out if the government uses this, that the government at every opportunity talks

00:11:32.340 about the need to prepare for the next pandemic. So they clearly are aware of the fact that this could

00:11:37.940 replicate itself in some form. So absolutely, having on record the, actually,

00:11:42.500 actually, you can't do this would be very important. Although, as we've been discussing,

00:11:47.300 in fact, the government may end up having on the record a permission slip.

00:11:50.740 Right. And this is where Canadians really need to, obviously, we're going to continue to press these

00:11:55.780 matters through the courts, but Canadians can also press their politicians. Well, the current Saskatchewan

00:12:00.580 government is the government that put these matters in place. What is that government going to do to

00:12:05.620 promise its citizens to say, look, we're not going to be so unscientific and quite frankly, just

00:12:11.460 completely ignoring common sense on these issues in the future? What restrictions is the government

00:12:17.380 going to put on itself to ensure that itself or a subsequent government will not be violating

00:12:22.340 Canadians rights with such impunity? Legislatures are, you know, for example, in Alberta are making

00:12:27.220 some changes in that regard. Public health acts need to be changed. This idea that the government can,

00:12:31.380 based simply on a potential line of reasoning, however, torture to restrict your fundamental

00:12:40.260 rights and freedoms, well, why should we allow that? We can obviously press this through the

00:12:45.380 courts. I think legislatures have a job to do on this as well. Marty Moore, always good to get your

00:12:51.460 legal analysis and chat with you in general. Thank you for coming on, sir. We'll see you soon.

00:12:55.620 Thanks for having me. Thanks for listening to The Andrew Lawton Show. Support the program by

00:13:01.300 donating to True North at www.tnc.news.

Juno News - May 27, 2024

Saskatchewan upholds outdoor gathering limit

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