Saskatchewan upholds outdoor gathering limit
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Summary
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
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We'll move from this issue to a much more real constitutional matter, and that is the decision
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that came down yesterday from the Saskatchewan Court of Appeal upholding a ban that the government
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had on gatherings outdoors. Now, one of the things that I, this came up the other day,
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there was a gentleman who I've interviewed in the past, Kevin Gaudet, who was fined for not staying
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in a quarantine hotel, and he had shared about this on a thread on X, and I had said when I
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retweeted it or quote tweeted it that how surreal it seemed that this was something we went through,
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that the government was locking people up in quarantine hotels and giving massive, massive
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fines. I said, but it's not surreal. It was very real. Government did it, and they have tried to
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basically forget this, but the legal process moves slowly at times. These things are still working
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their way through the courts, and with the exception of maybe a small handful of cases,
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courts have made absolutely abysmal decisions on this. The one in Saskatchewan, which we'll talk
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about shortly, and also this week in British Columbia, the BC Supreme Court has upheld the
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healthcare workers vaccine mandate, which is pretty much as unscientific at this stage as a gathering
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restriction on outdoor gatherings of more than 10 people. Joining me on the line now is Marty Moore.
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He leads a team of lawyers across Canada funded by the Justice Centre for Constitutional Freedoms,
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and just as a matter of disclosure, I sit on the board for the JCCF, although that has no bearing on
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this interview. Marty, good to talk to you. Thanks so much for coming on today.
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So let's start with what the actual decision was in Saskatchewan. I mean, this was a clear-cut
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freedom, freedom, or a constitutional freedoms case, your right to assemble, your right to gather
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outdoors, and the Court of Appeal has still said the justifications that the government held were
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reasonable. That's right, and the word reasonable there is obviously doing a lot of work. The court
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has upheld a lower court decision that found that it was just fine for the government to prohibit people
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from protesting outdoors with any more than 10 people. And if you have a gathering of 10 people
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outdoors, then you call that a protest. You're really stretching already. While simultaneously,
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the government was, in fact, allowing much greater people to gather indoors. And the facts in this case,
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Andrew, were not controversial. This was not a great battle of the experts, if you will.
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Everybody was admitting it's much safer to be outdoors. In fact, there was no evidence whatsoever of a
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single COVID transmission linked to an outdoor protest during the entire period of COVID in
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Saskatchewan. But yet, when it came to restaurants and bars, the public health officer there was
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estimating 30 cases a day from those restaurants and bars. And guess what had the restrictions?
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Outdoor protests did. And in a bar, you could gather, as long as you only have four people at a table,
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you were fine in Saskatchewan. But don't gather with more than 10 people outdoors in a park, regardless of how far
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you are apart. So this is the current decision that's come down. The court says, well, government
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is required deference, and the precautionary principle needs to be respected here as well, Andrew.
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And what is that for people that haven't had to spend their lives immersed in this like you have?
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Well, the precautionary principle is designed to allow for government to make decisions where there's a
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lack of evidence. And there's a high risk of harm if they don't act. Well, here in this case, it's been
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known for decades and decades that respiratory viruses don't transmit outdoors with any significant
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or real risk there. But yes, in the case of COVID, we threw all of our past knowledge out the window
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and claimed that the precautionary principle needs to be used to ban things that the government really,
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you know, had problems with, like an outdoor protest, which, you know, obviously is the only way for
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people to really voice their objections to the government's current policy. Now, the precautionary
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principle was applied, you know, in a bizarre way in Saskatchewan, because as I mentioned, when you could
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gather indoors and much more risky settings where there's lots of case spread happening on a daily
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basis, we don't apply the precautionary principle to that. That's economic activity. But when it comes to
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these pesky protesters outdoors, well, we'll apply rigorously the precautionary principle,
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because one of them could get sick, Andrew, even though we have no evidence that anybody got sick,
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despite mass protests going on during COVID, as we know from the Black Lives Matter protests.
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I haven't read the full decision yet. So I didn't see it there. But I wanted to ask you about it,
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because in some of these decisions in other courts and other similar fact patterns, but different cases,
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judges will hedge by saying, well, based on the information at the time, and they'll kind of give
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government a bit of a weasel way out there by saying, well, it might have been reasonable for
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them to think that this was a reasonable policy. Is that something that was engaged here as well?
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Well, certainly the decision tries to say we can't, you know, second guess decisions made during the
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time. But these were decisions that were months and months in the making. The 10 person limit was
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initially in place during the Black Lives Matter protests. It was never enforced during that time,
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of course. Then it was reimposed in the winter there. That entire time period, we have statements
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from the chief medical health officer in Saskatchewan saying, it's much safer to be outdoors. Please
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gather outdoors and even statements commenting on protests that look, you know, it's a restriction,
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it's guidance, not to gather with more than 10 people, but we totally get people desire to be
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outdoors protesting for Black Lives Matter. That was not applied, of course, when it came down to
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people protesting government restrictions, in which case the weight of the law was brought down with
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full force and a vigor actually unmatched in any other province, more national across the country.
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I have not seen a greater prosecution and zeal to punish those who prosecuted or who protested
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government restrictions than I've seen in Saskatchewan. And those prosecutions are actually going on in
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this day. We've had dozens of cases there in Saskatchewan on that basis, but only those protesters
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against the government, no one that was protesting other issues, Black Lives Matter, Palestinian
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Israel issues, or even LGBTQ matters, all of those things were going on as well. They were all subject
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to the same restrictions, but only one group was targeted. So there's a real rule of a law issue
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here in Saskatchewan as well. There's a part of this that I find particularly insidious. Now,
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I think any restriction on freedom to protest is a very serious thing, but it's especially concerning
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when government puts a policy in place that innately and directly prohibits protest of that policy.
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Because you're basically saying that you should not be allowed to express legally your displeasure
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with the very thing that we're using to prevent you from doing it. Absolutely. And that's why the
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courts are there. That is why under the Canadian Charter of Rights and Freedom, it's a fundamental freedom
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to peacefully assemble and express publicly in this very powerful medium, your opposition to government
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action. And when we see in this case, the courts repeatedly using deference to the government for
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this kind of direct prohibition, it is shocking and it's very much a concern. And to be honest, Andrew,
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the courts in Canada on the issue of COVID restrictions have really failed to earn Canadians trust.
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And when they say, look, and just quoting from the decision itself, it's like, even if the
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differential treatment between unstructured outdoor gatherings and retail settings could not be
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justified on an entirely public health rationale, which is an understatement, the court says, well,
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that's not really determinative of whether it's justified because the government has deference to,
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quote, preserve economic activity and other social benefits. And so in other words, if the government
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chooses to violate your rights and allow economic activity, which is more risky to go forward,
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the courts are right now saying, we're fine to turn a blind eye to that.
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Yeah, I wanted to take a bigger picture look at this. I mentioned in the preamble,
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the BC case this week, and I don't think you were engaged in that case, but I'm sure you followed
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this and other similar ones. And you're right when you say that there's been this overwhelming
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attitude of deference. And I'm really hard pressed to come up with any wins. I mean, obviously the
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federal court did shut down the Emergencies Act, which was a positive, I think, decision emanating from that
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era, but that wasn't actually a COVID restriction or a COVID policy. The Emergencies Act was problematic
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for other reasons. I mean, where have been the wins on anything else COVID related?
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Well, yeah. And I mean, actually we were involved there in the BC cases and with the medical health
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workers. And there is a small win there, of course, we do have an order from the court saying Dr. Henry
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now must reconsider this prohibition of virtual workers. They should be hired back. So there's
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something there to latch on to. But that's the win is that maybe just maybe it's not reasonable to
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force people who work from home to get a vaccine. That's about as low a bar as we get in Canada.
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Right. And we've now found the courts, this is the first time as I'm aware of a court actually being
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willing to essentially say that we've seen some arbiters. Yeah, the Canada Post arbitration said
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something very similar this week. When it comes to COVID restrictions, of course,
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we filed a case in BC against the ban on outdoor protests, the government actually conceded that
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violation. And then in Alberta, we struck down the restrictions on the COVID restrictions on the
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basis, not of the charter, but on the basis that they are illegally issued by Dr. Dina Hinshaw rather
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than what they were in fact, the cabinet regulations. And so when the winds come, they're far and few
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between on the COVID restrictions themselves. Of course, we've had many victories at trial,
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many dropped charges, but on the charter merits themselves. The courts have really let Canadians
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down to this point. The Supreme Court has yet to weigh in. We have seen the Taylor case from New
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Finland recently being granted leave. It's hard to say whether the Supreme Court is going to get to the
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merits of COVID or whether they're going to get to this issue of mootness, where we've seen courts
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refuse to even consider COVID restrictions because, oh, well, that was in the past. So that's a live
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issue in the Taylor case. And maybe the court will get past the mootness issue and get to the merits.
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We're not sure. But it's a possibility that here this protest restriction case from Saskatchewan
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would also be seeking leave from the Supreme Court. The Supreme Court's been rather not too generous
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in granting leave to appeal. But it does, I think, behoove the courts to fight back and actually seek
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to regain Canadians trust because the courts are the ones under the charter through section one that are
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there to defend Canadians' fundamental rights and freedoms. And when they fail to do that,
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they lose Canadians' trust. And I think we've seen that significantly in Canada and a lot more
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discussion of, well, maybe if the courts are losing Canadians' trust, it's going to fall to the
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legislatures to now be the defenders of people's fundamental rights and freedoms. And if the courts
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agree or not, politicians are going to have more latitude to regard or disregard court decisions.
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Yes, I've got a long-standing frustration with mootness, which conveniently allows governments to
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skirt accountability and then do the same thing again elsewhere. And I mean, not being a lawyer,
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but I would point out if the government uses this, that the government at every opportunity talks
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about the need to prepare for the next pandemic. So they clearly are aware of the fact that this could
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replicate itself in some form. So absolutely, having on record the, actually,
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actually, you can't do this would be very important. Although, as we've been discussing,
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in fact, the government may end up having on the record a permission slip.
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Right. And this is where Canadians really need to, obviously, we're going to continue to press these
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matters through the courts, but Canadians can also press their politicians. Well, the current Saskatchewan
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government is the government that put these matters in place. What is that government going to do to
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promise its citizens to say, look, we're not going to be so unscientific and quite frankly, just
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completely ignoring common sense on these issues in the future? What restrictions is the government
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going to put on itself to ensure that itself or a subsequent government will not be violating
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Canadians rights with such impunity? Legislatures are, you know, for example, in Alberta are making
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some changes in that regard. Public health acts need to be changed. This idea that the government can,
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based simply on a potential line of reasoning, however, torture to restrict your fundamental
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rights and freedoms, well, why should we allow that? We can obviously press this through the
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courts. I think legislatures have a job to do on this as well. Marty Moore, always good to get your
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legal analysis and chat with you in general. Thank you for coming on, sir. We'll see you soon.
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Thanks for having me. Thanks for listening to The Andrew Lawton Show. Support the program by