Nova Scotia injunction blocking protests 'unjustifiable' limit on expression: CCLA

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HALIFAX — A court injunction that bans protests against public health orders in Nova Scotia should be modified or set aside, says the Canadian Civil Liberties Association.

Cara Zwibel, the association's director of fundamental freedoms, said Tuesday that the injunction is an indefinite ban on freedom of assembly and expression that is "unjustifiable."

Zwibel said her organization's concern is that the court order issued Friday prohibits any and all protest activity during the province's state of emergency — something that she says runs counter to the Charter of Rights and Freedoms.

"That (protest) right is a very fundamental one in a democratic society," she said in an interview, adding that the injunction goes too far. "We think it should be set aside or significantly narrowed," she said. Zwibel said the association would prefer to work with the province to modify the "exceptionally broad terms" of the injunction, but it is willing to challenge it in court if necessary.

She wrote Monday to Premier Iain Rankin and Justice Minister Randy Delorey asking for a discussion. The letter calls the injunction "a two-handed axe where a scalpel would have sufficed." It says that if the province is unwilling to amend the court order, "we will be seeking to set aside or vary the court’s order to ensure that fundamental charter rights are not unduly and indefinitely restricted."

The injunction was aimed at preventing illegal gatherings in defiance of public health orders introduced to slow the spread of COVID-19.

Nova Scotia reported 90 new cases of COVID-19 on Tuesday including 64 in the Halifax area. The province has 1,345 known active cases of novel coronavirus.

The court order was primarily aimed at two anti-mask protests including one planned for Citadel Hill in Halifax last Saturday by a group called "Freedom Nova Scotia.'' However, its reach extends to similar groups and also bans the promotion of similar gatherings on social media.

The court hearing that yielded the injunction was an ex parte application brought by the province, meaning the protest organizers weren't notified ahead of time and they did not attend. The injunction ultimately led to police ticketing protesters on the weekend, including people who participated in a car rally in Halifax to support the Palestinian cause.

Halifax police issued a news release Monday, in which it referred to the 500-person car rally to protest Israel's treatment of Palestinians as "illegal". It used the same term to describe the Citadel Hill protest, where about 50 people turned up to oppose some public health restrictions.

But Zwibel doesn't see the two protests as necessarily the same, saying it depends on how they respected public health orders already in force. She pointed out that the car rally protest was to occur in family bubbles and inside cars.

"What is the benefit to public health of allowing these people to be arrested or ticketed?" she asked. "To deter that kind of thing, or to punish it, is really problematic."

However, Halifax police have cited outdoor gathering limits, which are set at "no more than your household ... without social distancing" as their justification for clamping down. The force also pointed out that there is no exemption for demonstrations on the provincial government website.

Zwibel said there should be room for the province to vary the court order to apply it more narrowly to specific groups and protests, as was done recently with a similar court injunction in Alberta. "We need to find a way to reconcile these things," she said. "We can't make Canada a protest-free zone because of COVID."

In an emailed statement, the provincial Department of Justice said restrictions on gatherings, including protests, are justified by the public health emergency.

"People have a right to protest, but there are times when reasonable limits on those rights are necessary. As reflected in the court’s decision on the injunction, this is one of those times," Heather Fairbairn, a department spokeswoman, said. She called the injunction "one more tool to help keep people safe" and said correspondence received by the department will be addressed.

This report by The Canadian Press was first published May 18, 2021.

Keith Doucette, The Canadian Press

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