The Justice Centre for Constitutional Freedoms has appealed the anti-lockdown convictions of those who violated Saskatchewan's COVID lockdown measures, particularly the 10- and 30-person outdoor gathering limits in place in 2020 and 2021.
On March 3, Justice Centre lawyers wrote the Court of Appeal to challenge the constitutionality of Saskatchewan’s outdoor gathering limits.
The appellants seek to overturn an earlier decision in 2022 that found the restrictions on outdoor gatherings justified in breaching Charter rights because people could still express themselves online.
“During 2020 and 2021, Saskatchewan imposed strict numerical limits on outdoor gatherings that applied to outdoor protests,” reads a Justice Centre statement.
“At some periods, Saskatchewan imposed 10-person limits on outdoor gatherings, while simultaneously permitting hundreds of persons to gather indoors for shopping, dozens for dining, and at least 30 in many other indoor settings, where Saskatchewan’s Chief Medical Health Officer Dr. [Saqib] Shahab, noted there existed a greater risk of virus transmission.”
In June 2020, Black Lives Matter (BLM) groups protested outside amid hundreds of supporters while the public health measures remained active. However, local law enforcement did not pursue charges against them.
Regina Police Chief Evan Bray and other police officers attended the BLM rallies in solidarity with their cause. Premier Scott Moe and Shahab also gave their support.
According to the Justice Centre, law enforcement “aggressively” pursued prosecution against anti-lockdown protestors in late 2020 and 2021, which they did not reciprocate during protests of the flareup in the Israeli-Palestinian conflict and LGBTQ causes during the same period.
Police arrested dozens of anti-lockdown protestors whom the Justice Centre is providing legal representation.
“[The trials involve much] court time in Saskatoon and Regina, as well as hearings in Outlook and Moose Jaw. Unlike other jurisdictions, the Crown in Saskatchewan dropped a minimal number of COVID charges,” reads a statement from the firm.
Despite some acquittals, many received convictions in the Court of King’s Bench for contravening the outdoor gathering limits the Justice Centre surmised “were imposed without proper legal authority.”
The limits on outdoor protests stem from a series of public health orders by Shahab, according to Justice Centre lawyers, who said he relied on his authority from the Public Health Act and the Disease Control Regulations.
“Dr. Shahab’s orders further rely on a delegation of authority from the minister to Dr. Shahab, according to the Legislation Act. The appellants argue that delegating authority from the minister to Dr. Shahab was not permissible.”
“In the context of the provincial court convictions on some protestors, the Court of King’s Bench will be asked to determine whether the delegation of authority to Dr. Saqib Shahab was lawful,” said Andre Memauri, a Justice Centre-funded lawyer.
“Lawful delegation of authority is an important principle to be examined by our courts to protect the democratic function of government and to prevent the erosion of representative government.”
“This is a case primarily about the limitation of persons from assembling as protected by the Charter, and the appellants argue their ability to express themselves on the internet does not mitigate a breach of such right,” said Memauri.
“While COVID has presented significant considerations regarding the health of residents, it is also necessary to consider the health of democracy. The appellants in this challenge will be able to present their case to the highest court in Saskatchewan for consideration.”