COVID public health orders were reasonable limit to charter rights, Sask. judge rules

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A decision from Saskatchewan Court of King's Bench ruled public health orders in place earlier in the pandemic technically violated charter rights, but that the public orders were reasonable exceptions under Section 1 of the charter. (Alexander Quon/CBC - image credit)
A decision from Saskatchewan Court of King's Bench ruled public health orders in place earlier in the pandemic technically violated charter rights, but that the public orders were reasonable exceptions under Section 1 of the charter. (Alexander Quon/CBC - image credit)

A Saskatchewan judge has ruled public health orders brought in to curb the spread of COVID-19 were a reasonable limitation of charter rights, in a decision to a challenge brought forward by two people who got tickets for breaking those orders at protests.

The pair — Regina's Jasmin Grandel and Darrell Mills of Saskatoon — were ticketed for violating the public health orders when they attended several anti-COVID-19-restriction protests between December 2020 and July 2021, according to the Sept. 20 decision from Court of King's Bench Justice D.B. Konkin.

For most of that period, the public health orders in the province restricted public gatherings to a maximum of 10 people.

Grandel and Mills, who were represented by lawyers at the Justice Centre for Constitutional Freedoms, wanted a declaration that the health orders violated their rights to freedom and peaceful assembly guaranteed under the Charter of Rights and Freedoms.

The Justice Centre, which describes its mission as defending "the constitutional freedoms of Canadians through litigation and education," has launched other legal challenges against COVID-related public health orders across Canada.

Their court challenge named the government of Saskatchewan and Chief Medical Health Officer Dr. Saqib Shahab as respondents.

In the decision, Justice Konkin ruled the public health orders in place at the time technically violated those charter rights, but also found that the public health orders were reasonable exceptions.

That's allowed under Section 1 of the charter, which says rights can be limited by law, if the limits can be shown to be reasonable in a free and democratic society.

The judge ruled the provincial government's health orders met that test.

"Understanding the nature of the virus [that causes COVID-19] and its characteristics informs us that the world was dealing with a novel virus that we knew very little about," the judge wrote in his decision.

"As this virus evolved, the accompanying threat to public health presented complex challenges for public health officials and government bodies."

The judgment also says the province's public health measures were "calibrated, reviewed and readjusted on a regular basis and were informed by statistical data."

The judge also found that people gathering outside to protest were not following best practices regarding COVID-19 safety.

"The applicants at outdoor protests did not adhere to the COVID-19 protocols such as physical distancing, testing for COVID-19 before and after attendance, registering participants," the judgment reads.

"As well, they engaged in activities that increased the risk of transmission such as shouting or chanting, prolonged periods of contact, hugging, carpooling, travelling from different communities, and handing items back and forth."

The judge dismissed the application, but found that because the applicants "raised reasonable issues" for review, did not order them to pay court costs.

The pair will still have to pay their tickets.