Juno News - May 27, 2024


Saskatchewan upholds outdoor gathering limit


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Length

13 minutes

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182.68375

Word count

2,392

Sentence count

118

Harmful content

Misogyny

1

sentences flagged

Hate speech

2

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Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

Saskatoon's Court of Appeal upholds a ban on gatherings outdoors with more than 10 people. What does this mean for freedom, freedom, and the right to assemble? What does it mean for the public health officer's ability to keep people indoors? And why does it matter if you're in a restaurant, bar, or restaurant? In this episode, we talk to JCCF lawyer Marty Moore to find out.

Transcript

Transcript generated with Whisper (turbo).
Misogyny classifications generated with MilaNLProc/bert-base-uncased-ear-misogyny .
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
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.