Mootness finding was important precedent for cases underway elsewhere in the country, says lawyer
A group of churches and individuals who challenged Manitoba’s COVID restrictions have lost their appeal. The court found that while the public health orders violated their religious freedom and freedom of peaceful assembly, those infringements were justified under s. 1, which subjects Charter rights to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
In Gateway Bible Baptist Church et al v. Manitoba et al, 2023 MBCA 56, the applicants contested the constitutionality of various measures restricting gatherings at private residences and places of worship and limiting public gatherings to five people, which the province had done after declaring a state of emergency under its Emergency Measures Act. The applicants included seven churches and three individuals.
“There was a lot of deference to the lower court's decision and to the government response and a focus on the harmful effects on society from the pandemic, which is understandable,” says Allison Pejovic, who acted for the appellant churches and individuals in the appeal. “However, we would have liked to have seen a greater recognition of the fact that the activities that were prohibited or severely limited are constitutionally protected, while activities that were not constitutionally protected were allowed.”
The applicants argued that ss. 13 and 67 of the Manitoba’s Public Health Act delegated too much power to the province’s chief public health officer (CPHO), Dr. Brent Roussin. They said that the orders violated ss. 2(a), 2(c), 7, and 15 of the Charter and were ultra vires because the imposed restrictions fell short of the “reasonably necessary” requirement under s. 3 of the Act. The application judge disagreed that the Act unconstitutionally consigned authority to Dr. Roussin. While Manitoba conceded that the orders infringed ss. 2(a) and 2(c), the judge found the restrictions were a constitutionally justifiable limit under s. 1. The application judge also ruled that the public health orders were not ultra vires and met the “reasonably necessary” requirements under s. 3 of the Act.
The applicants raised three grounds on appeal: that the judge had erred in finding ss. 13 and 67 of the Public Health Act constitutional, that the s. 2 breaches were justifiable under s. 1, and in finding that the public health orders complied with s. 3 of the Act.
Manitoba argued that the appeal was moot because the public health orders had expired. Justice Diana Cameron wrote the reasons for the Court of Appeal’s panel and agreed that the orders no longer impacted the applicants’ rights but that an “adversarial context” still existed. The case involved “special circumstances,” which made applying “scarce judicial resources” worthwhile. The court exercised its discretion to determine the appeal.
Pejovic is a lawyer at the Justice Centre for Constitutional Freedoms, which has brought similar constitutional challenges to COVID restrictions in other provinces. She says the court’s ruling on mootness is a win.
“In a lot of these COVID cases where government bring in really harsh COVID measures, and by the time the case gets to you heard in court or gets to the appeal stage, those measures have been lifted,” says Pejovic. The aggrieved parties who want courts to analyze the infringement on their rights are denied having their cases heard because the measures are no longer in effect. “In our view, those findings are unjust because, in the Canadian legal system, it's not possible to get these cases through the courts fast enough before the government lifts the measures,” she says.
“We're pleased to see that the Manitoba Court of Appeal agreed with us that if it wasn't to hear this appeal, these public health orders wouldn't be evasive of review.”
Section 67(1) of the Public Health Act allows the CPHO to take “special measures” if “a serious and immediate threat to public health exists because of an epidemic” and “… the threat to public health cannot be prevented, reduced, or eliminated without taking special measures.” The “special measures” include ordering a public place or premise closed and ordering people not to assemble in a specified area.
According to the applicants, an “unwritten constitutional principle” dictates that only the Legislative Assembly can “make laws of general application with such broad powers.” They called s. 67 an “unrestrained and prolonged transfer of legislative power,” which must be struck down pursuant to s. 52(1) of the Constitutional Act’s supremacy clause. The applicants also submitted that there is insufficient political oversight of these powers.
The application judge found that legislators made a “deliberate choice” to centralize authority over the province’s health system under a single official and that there were “a number of constraints specific to the delegation of power to the CPHO pursuant to section 67.” The judge added that the Legislature could expand, constrain, or eliminate the legislation, that it was “the result of the will of democratically elected representatives subject to democratic accountability,” and that delegated powers are “an essential and normalized part of the modern Canadian state.” As to the applicants’ concerns that the CPHO could act arbitrarily, violate Charter rights, or exceed the authority under the Act, the judge said they could address these issues with judicial review. The application judge also found that “unwritten constitutional principles” can function as interpretive tools but do not “provide an independent basis to strike down legislation.”
The Court of Appeal found that the judge had not erred in his finding that ss. 13 and 67 are constitutional.
To determine whether the admitted s. 2 Charter breaches were justifiable under s. 1, the application judge had applied the test under R. v. Oakes, [1986] 1 S.C.R. 103, under which Manitoba was required to demonstrate, on a balance of probabilities, that its objective was “pressing and substantial” and that its means were “proportionate to the objective.” The proportionality analysis examines whether “the limit is rationally connected to the purpose,” only minimally impairs the Charter right, and whether the law’s effect is proportionate.
The application judge found that in attempting to protect public health, save lives, prevent illness, and avoid overwhelming hospitals, the public health orders were pressing and substantial. Limiting gatherings, including in churches, was rationally connected to that objective. Looking at the “dire health conditions” in the province and the potential alternative policies submitted by the applicants, the judge found that the CPHO’s decisions “fell with a range of reasonable alternatives” and the public health orders minimally impaired the Charter rights at issue, said the judge.
On appeal, the applicants disputed whether Manitoba had adequately demonstrated that restrictions against outdoor gatherings were rationally connected to the objective of reducing COVID’s spread and minimally impairing to Charter-protected rights. Ultimately, the appeal court agreed with the application judge that the Charter violations caused by the public health measures cleared the Oakes test.
“We argued very strongly on appeal that our clients’ right to worship, express themselves, and peacefully assemble were not impaired as minimally as possible because they could have worn masks at church instead of shutting the churches down,” says Pejovic. “They could have had reduced capacity limits, instead of shutting the churches down.”
“One of the biggest, most important facts that was overlooked by the Manitoba Court of Appeal in their written decision was that movie sets were allowed to be open while churches had to be closed.”
In addition to movie sets, Pejovic adds that the province was permitting indoor gatherings at liquor stores and big-box stores. “The activity of going to Walmart is not constitutionally protected.”
