His Majesty the King - v. -, 2022 SKPC 41

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 41 Date: November 22, 2022 Ticket No: 85478309 Location: Nipawin _____________________________________________________________________________ Between: His Majesty the King - and - Shorebird Investment Ltd. Ms. Jennifer Souter/Ms. Lori O’Connor For the Crown Mr. Theodore Litowski For the Attorney General (Saskatchewan) Mr. Luke Coupal For the Accused DECISION S.D. SCHIEFNER, J TABLE OF CONTENTS Paragraph A. INTRODUCTION…………………………………………………………………….. 1 B. THE PROCEEDINGS ..……………………………………………………………… 6

C. THE EVIDENCE .……………………………………………………………………. 9 1. Background – Restaurants, Public Health and Communicable Diseases ……… 9 2. Testimony of Public Officials ………………………………………………… 18 3. Defence Evidence …………………………………………………………….. 28 D. ANALYSIS ..…………………………………………………………………………. 33 1. Proof of the Offence …………………………………………………………. 33 2. The Defence of Due Diligence ……………….…………………………..…. 37 E. THE CHARTER ARGUMENTS ………………………………………………….. 41 1. Does Shorebird have standing to raise the Charter rights of its patrons? …... 43 2.

Is the failure of Shorebird to call evidence from its patrons fatal to its application? ………………………………………………………………….. 44 3. Did the requirement for restauranteurs to collect the names and contact information of their dine-in patrons result in an infringement of the right of those patrons to be secure against unreasonable search and seizure? …… 51 (

a) Do dine-in patrons have a reasonable expectation of privacy in the information that restaurants are required to collect? …………….……….. 55 (

b) Under the circumstances, was it reasonable to collect personal information from diners? …………………………………………………. 63 4. Did the requirement for restauranteurs to collect names and contact information of their dine-in patrons result in an infringement of the s. 2(b), (

c) or (

d) rights of those patrons? ……………………………………….…… 70 5. If any infringement of Charter -protected rights occurred as a result the

requirement for restauranteurs to collect the names and contact information of their dine-in patrons, was that requirement nonetheless justified under the circumstances? ………………………………………………….……………. 74 (

a) Was the requirement that diners provide their names and contact information rationally connected to the need of contact tracing? …..…… 80 (

b) Did the requirement in the restaurant PHO minimally impair the Charter rights they violated? …………………………………………….. 81 (

c) Did the requirement in the restaurant PHO minimally impair the Charter rights they violated? …………………………………………….. 82 (

d) Was there Proportionality between the deleterious and salutary effects of the restaurant PHO? …………………………………………… 85 F. CONCLUSION ………..………………………………………………………….. 87 INTRODUCTION [ 1 ] This case is about one of the mitigation strategies that was employed in Saskatchewan in March of 2021 in response to COVID-19 – the requirement that restauranteurs collect and maintain certain information from their dine-in patrons [commonly referred to as the “Dine-in List”].

The requirement for restaurant operators to maintain a Dine-in List was prescribed in a series of public health orders [“Restaurant PHO”] enacted by authority set forth in The Disease Control Regulations under The Public Health Act, 1994 . The purpose of the Dine-in List was to create a means to identify individuals who may have inadvertently come into contact with a person who tested positive for COVID-19.

The goal of this mitigation strategy was to reduce the spread of COVID-19 by allowing public health officials a means to contact these individuals so they could be advised of their potential exposure to COVID-19, and then these individuals could take steps to ensure that they did not inadvertently spread the virus to others. [ 2 ] Shorebird Investment Ltd. [Shorebird] operates a restaurant at Tobin Lake, Saskatchewan [Shorebird Inn] and, pursuant to the Restaurant PHO, were required to collect the prescribed information from their patrons, to maintain that information for a period of time, and to produce that information for inspection by a medical health officer when required for the purpose of contact tracing.

An incident occurred at Shorebird’s restaurant involving COVID-19. As a result, public health officials requested the Dine-in List for the Shorebird Inn.

After concluding that the information that was collected by Shorebird did not contain an accurate list of the first name and last name, and telephone number (or email address) for all dine-in patrons for the period of March 2, 2021 to March 9, 2021, Shorebird was charged with a violation of s. 61 of The Public Health Act, 1994 . [ 3 ] In a Notice of Constitutional Question dated December 9, 2021, Shorebird took the position that the requirement to maintain a Dine-in List was a violation of various Charter -protected rights, including freedom of expression, freedom of assembly and association, and that it constitutes an unconstitutional search and seizure.

Although the Charter Notice was drafted rather broadly, the gravamen of Shorebird’s argument was that the effect of the Restaurant PHO was an unreasonable invasion of the privacy of dine-in patrons at restaurants. Shorebird does not assert that their own rights were infringed by the Restaurant PHO. Rather, Shorebird takes the position that the Restaurant PHO represented an unreasonable and unjustifiable infringement of the Charter​ rights of their dine-in patrons. [ 4 ] Having considered the evidence, I find that Shorebird’s Charter argument must be dismissed.

A lthough the requirement that restaurateurs collect the names and contact information from their patrons infringed upon the privacy rights of those individuals, it was not a significant infringement of their right to privacy in light of the limitations in place respecting the retention and use of that information. Furthermore, when one considers the totality of the circumstances in March of 2021, it is abundantly clear that the individual rights of diners were required to give way to the state’s compelling interest in protecting the public from the health risks

presented by COVID-19 during the exigent circumstances being addressed by the government at that time. Simply put, I am satisfied that the requirement for restaurateurs to collect personal information from their patrons as set forth in the Restaurant PHO was both “reasonable” within the meaning of s. 8 of the Charter and “justified” within the meaning of s. 1. [ 5 ] My reasons for coming to these conclusions are set forth below. THE PROCEEDINGS [ 6 ] A trial was conducted on May 11, 2022 and May 12, 2022 in Nipawin, Saskatchewan.

All evidence was heard in a blended Charter voir dire because Shorebird challenged the constitutional validity of the public health orders that were the basis of the charge. The Crown called four witnesses: • Mr. Ryan Philipation, Senior Public Health Inspector, Saskatchewan Health Authority. • Mr. Michael Hayduk, Public Health Inspector, Saskatchewan Health Authority. • Ms. Patti Gantefoer-Draude, Public Health Nurse, Saskatchewan Health Authority. • Dr. Julie Kryzanowski, Deputy Chief Medical Health Officer, Ministry of Health. [ 7 ] The defence called Bryan Baraniski. Mr.

Baraniski is the majority shareholder of Shorebird and the manager of its operations at Tobin Lake, including the Shorebird Inn. [ 8 ] Argument on all issues was heard by this Court on October 12, 2022 in Melfort, Saskatchewan. The parties filed detailed written briefs for which the Court is thankful. THE EVIDENCE Background - Restaurants, Public Health, and Communicable Diseases: [ 9 ] I have relied upon the documentary evidence presented to the Court, including the following materials: • The affidavit of Helen Bangura affirmed April 14, 2022. At all relevant times, Ms.

Bangura was a Communicable Disease Epidemiologist with the Saskatchewan Ministry of Health. Among her other duties with the Ministry of Health, Ms. Bangura was responsible for maintaining records of outbreaks of COVID-19 in Saskatchewan and for performing statistical analysis for public health purposes. • The affidavit of Jeff Armstead affirmed April 8, 2022. At all relevant times, Mr. Armstead was the Director of Digital Strategy with the Saskatchewan Ministry of Health. Among his other duties with the Ministry of Health, Mr.

Armstead was responsible for supervising the staff within the Ministry of Health who maintained detailed records related to COVID-19 in Saskatchewan, including the total number of infections, the number of active cases of COVID-19 at any given time, the daily counts of persons hospitalized with COVID-19, the total number of deaths related to COVID-19, and the numbers of persons who had received doses of COVID-19 vaccine.

This information was organized regionally and demographically, shared with various governmental agencies, and then made available to the general public through an Internet portal maintained by the Government of Saskatchewan. • Portions of The Communicable Disease Control Manual , CDCM 002 (Point-in-Time Version – May 12, 2022), Saskatchewan Ministry of Health. [ 10 ] The Public Health Act, 1994, SS 1994, c P-37.1 [ The Public Health Act, 1994 ] is the statutory vehicle through which the Province of Saskatchewan and its officials address public health matters, ranging from food safety to communicable diseases, pandemics, epidemic diseases, and bioterrorism.

Various regulations have been enacted under this statute to address different aspects of public health. For example, through authority set forth in The Disease Control Regulations , RRS c P 37.1 Reg 11 [ The Disease Control Regulations ], public health officials monitor communicable diseases within the province and have done so for decades – long before the appearance of COVID-19 in Saskatchewan. Similarly, food services, including restaurants, are closely regulated for a variety of reasons, including foods safety. See: The Food Safety Regulations , RRS c P-37.1 Reg 12 [ The Food Safety Regulations ].

The goal of this entire

regulatory scheme is to protect the health and well-being of the people of Saskatchewan. This regulatory scheme is administered by public health officials located throughout the province. [ 11 ] With the emergence of COVID-19, public health officials began monitoring data related to the pandemic, including the number of cases, hospitalizations and deaths due to the virus. COVID-19 was identified as a serious public health threat in Saskatchewan by early 2020. As a result, public health officials began maintaining a list of all confirmed, probable, and suspected outbreaks of COVID- 19 in the community.

Outbreaks of COVID-19 were investigated by public health officials and categorized by epidemiologists. Of particular interest to public health officials was whether an outbreak was confined to the staff of an affected workplace or if the outbreak included one or more members of the public (such as patrons at a restaurant). From March 26, 2020 to April 9, 2022, public health officials recorded a total of 2,574 confirmed outbreaks of COVID-19. Of these confirmed outbreaks, 137 occurred in bars, restaurants, and other public eating establishments.

Public health records indicate that on March 10, 2021, a community outbreak of COVID-19 was confirmed to have occurred at the Shorebird Inn – a restaurant operated by Shorebird at Tobin Lake, Saskatchewan. This outbreak was not limited to staff working at the restaurant but also involved patrons. Mr. Bryan Baraniski was among those affected by this outbreak. [ 12 ] Records maintained by the Saskatchewan Ministry of Health indicate that, in 2020 and 2021, COVID-19 infected 85,188 Saskatchewanians, killing 955. In March of 2021, there were 5,000 confirmed cases of COVID-19 and 51 deaths occurred.

At this time, only 154,436 Saskatchewanians were fully vaccinated. Even including those individuals who were partially vaccinated, as well as those who had acquired immunity through prior infection, the overwhelming majority of the population was vulnerable to acquiring and transmitting COVID-19. [ 13 ] In addition to monitoring communicable diseases in the community, public health officials also have authority pursuant to The Public Health Act, 1994 (and concomitant regulations) to take actions considered necessary to decrease or eliminate the risks to health presented by a communicable disease.

The authority for public health officials to take such actions also predates the emergence of COVID-19. For example, pursuant to s. 33 of The Public Health Act, 1994 , persons infected with a category II communicable disease have long been required to disclose to public health officials test results and the names of all recent contacts. [ 14 ] By way of further contextual background, the Ministry of Health maintains a document entitled the Communicable Disease Control Manual .

This document provides guidance for public health officials and other affected parties, including school personnel, managers of eating establishments and laboratories when dealing with communicable diseases. It has been around for decades, and it has been used by public health officials to respond to numerous communicable diseases and outbreaks over the years, including Severe Acute Respiratory Syndrome (SARS) in 2002 and H1NI in 2009/2010. The requirement for affected persons to disclose certain personal information in certain circumstances is a part of the response to certain communicable diseases.

See: ss.6(3) of The Disease Control Regulations . This requirement predates COVID-19 and has been part of the regulatory scheme for decades. [ 15 ] However, in specific response to COVID-19, The Disease Control Regulations were amended, and the Minister of Health delegated various new authorities to Dr. Shahab, the Chief Medical Health Officer for the Province of Saskatchewan. One of the authorities that was delegated to Dr. Shahab was the authority to make orders for the purpose of preventing, reducing and controlling the transmission of COVID-19.

For example, when COVID-19 was first identified in Saskatchewan, various methods were utilized to control the disease and prevent its transmission, including the suspension of classes at all primary, secondary and post-secondary educational institutions, the requirement for people to socially distance and to wear face coverings (masks) in certain settings, limitations on the size of indoor and outdoor gatherings, restrictions on visitors to long-term care facilities, hospitals and group homes, and the closure of bars, lounges, night clubs, restaurants, food courts, cafeterias, and other dine-in eating establishments.

See: Public Health Order: Control of Transmission of 2019 Novel Coronavirus, dated March 26, 2020. [ 16 ] Although a number of public health orders were enacted by the Chief Medical Health Officer in response to COVID-19, of significance to these proceedings, a series of public health orders dealing with food, beverage and liquor serving premises were enacted. These public health orders contained a number of restrictions affecting bars, restaurants and public eating establishments.

For example, beginning in November of 2020, the Chief Medical Health Officer imposed a requirement for the operators of restaurants to maintain a Dine-in List. The public health orders relevant to these proceedings were enacted on February 18, 2021 and March 9, 2021 (the Restaurant PHO). As mentioned previously, the Restaurant PHO required the owners and operators of restaurants to collect the first and last names of all dine-in patrons, together with either the phone number or an email address for these individuals (this was commonly referred to as the “Dine-in List”).

The Restaurant PHO also required restauranteurs to maintain their Dine-in List for a period of 30 days and to produce this information for inspection by public health officials when required for purposes of contact tracing. [ 17 ] It should be noted that the requirement for restauranteurs to maintain a Dine-in List was part of the province’s “Re-open Saskatchewan” plan and followed a period of time where restaurants and other public eating establishments were closed due to COVID- 19.

Finally, the requirement that restaurant operators maintain a Dine-in List was removed on July 11, 2021 with the repeal of the relevant public health orders.

Testimony of Public Health Officials: [ 18 ] Dr. Julie Kryzanowski is the Deputy Chief Medical Health Officer for the Province of Saskatchewan. She works with the Saskatchewan Ministry of Health and has extensive experience with public health management in Saskatchewan. In her testimony, she described the management of communicable diseases in the province, in general, as well as the actions taken by public health officials in Saskatchewan in specific response to COVID-19. Dr.

Kryzanowski explained that the early identification of “contacts” (the persons with whom an infected person came into contact) was an important part of the management of COVID-19 for public health officials. Dr. Kryzanowski also explained that certain settings, such as restaurants, represented an increased risk for the spread of COVID-19 because of the proximity of diners to each other and to staff, the nature of restaurant interactions, the use of shared facilities, such as washrooms and foyers, and the mixing of households in dining parties. See: p. 035 of the Communicable Disease Control Manual . [ 19 ] Dr.

Kryzanowski testified that contact tracing was particularly important in the case of COVID-19 for a number of reasons. First and most importantly, contact tracing helps reduce the probability of secondary transmission by enabling persons to be rapidly notified that they were in close contact with someone with COVID-19. Such persons could then self-isolate and seek testing, reducing the chance of onward transmission of the virus to their social circle. Second, contact tracing allows public health officials to give reliable information on how to get tested and how to manage their symptoms.

Third, it helps public health officials better understand the epidemiology of COVID-19, along with the transmission dynamics of a particular outbreak. [ 20 ] Dr. Kryzanowski noted that restaurants attract a number of people from different households and, without the information contained in the Dine-in List, contact tracing could be frustrated or delayed. [ 21 ] Mr. Ryan Philipation is the Senior Public Health Inspector for the area of the province where the Shorebird Inn is located.

He explained that public health officials routinely worked with hotels and public eating establishments, such as the Shorebird Inn, to educate owners/operators and encourage compliance with applicable public health regulations, such as The Food Safety Regulations . Inspector Philipation explained that public health officials use a progressive enforcement model in enforcing public health regulation - beginning with education, then moving to warning and cautions in the event of non-compliance, and then progressing to prosecution where voluntary compliance cannot be obtained.

Inspector Philipation testified that, in response to COVID-19, he and his staff began working with all hotels and public eating establishments, including the Shorebird Inn, to educate owners/operators and encourage voluntary compliance with the public health orders enacted by the province. Inspector Philipation testified that public health officials spoke with both Bryan and Brady Baraniski to provide education on each of the public health measures instituted by the province in response to COVID-19 beginning as early as October of 2020. [ 22 ] Mr.

Michael Hayduk is a Public Health Inspector for the area of the province where the Shorebird Inn is located. Inspector Hayduk works as part of a team with Inspector Philipation and others. Inspector Hayduk testified that he attended to the Shorebird Inn on January 7, 2021 on other matters. While there, Inspector Hayduk observed that the staff of the Shorebird Inn did not appear to be collecting contact information of their dine-in patrons. A “sign-in” sheet was observed on a table near the front entrance of the restaurant in the lobby of the hotel. Mr.

Hayduk observed that completion of the “sign-in” sheet appear to be voluntary for patrons, and was incomplete. As a result, Inspector Hayduk met with Mr. Bryan Baraniski, reviewed the applicable Restaurant PHO in force at that time, and explained that the Shorebird Inn was required to collect the first and last names of all dine-in patrons, as well as their phone numbers or email addresses. [ 23 ] On January 15, 2021, Inspector Philipation attended to the Shorebird Inn. Shorebird appeared to be continuing to use a voluntary “sign-in” sheet and Inspector Philipation observed that it appeared to be incomplete.

As a result, Inspector Philipation met with Bryan Baraniski and told him that the customer information being collected for the Shorebird Inn was incomplete and needed to improve. As had Inspector Hayduk, Inspector Philipation reviewed the applicable Restaurant PHO in force at that time with Mr.

Baraniski, and explained that Shorebird was required to collect the first and last names of all dine-in patrons, as well as their phone numbers or email addresses. [ 24 ] On March 2, 2021, Inspector Hayduk attended to the Shorebird Inn and observed that Shorebird was continuing to use a voluntary “sign-in” sheet that was unattended and located in the lobby of the hotel near the entrance to the restaurant. The sign-in sheet was in the same location that Inspector Hayduk had observed on January 7, 2021.

As in January, information on the voluntary sign-in sheet was incomplete; it was missing dates, names and contact information for patrons. As a result, Inspector Hayduk again met with Bryan Baraniski and advised that Shorebird’s approach to the requirement to maintain a Dine-in List was inadequate. While at the Shorebird Inn, Inspector Hayduk observed a person he knew to be Bob Taylor, come into the restaurant, sit near the bar, order a drink and be served. The name Bob Taylor was not recorded on the Shorebird Inn’s Dine-in List, nor was his contact information. [ 25 ] Ms.

Patti Gantefoer-Draude testified that she is a public health nurse for the area of the province where the Shorebird Inn is located. On March 8, 2021, public health officials initiated a health investigation related to the Shorebird Inn. There had been a

confirmed positive case of COVID-19 associated with the Shorebird Inn. As a result, Nurse Gantefoer-Draude called Bryan. Baraniski for the purpose of acquiring the Shorebird Inn’s Dine-in List for the period of time since March 1, 2021 so that public health officials could begin contact tracing. However, Mr. Baraniski was in the hospital at the time, and he told her to contact his son, Brady Baraniski. Nurse Gantefoer-Draude then called Brady Baraniski, who agreed to send patron information by email.

When Nurse Gantefoer-Draude did not receive any patron information by the next morning, public health officials agreed that someone should attend to the Shorebird Inn to obtain the required information. [ 26 ] On March 9, 2021, Inspector Philipation attended to the Shorebird Inn. Upon entry, Inspector Philipation noted a “guest book” at the front entry of the restaurant. This document was sitting on a small table and was essentially the same as the voluntary “sign in” sheet he had observed on January 15, 2021.

He approached Brady Baraniski and requested a list of all patrons who had dined at the Shorebird Inn since March 1, 2021. Brady Baraniski directed Inspector Philipation to the guest book.

Inspector Philipation took pictures of the pages but noted that they were incomplete, undated and there were no entries for March 9, 2021, notwithstanding the fact that he could see customers dining at the Shorebird Inn at that time. [ 27 ] Nurse Gantefoer-Draude testified that public health officials concluded that the information provided by Shorebird was incomplete and they could not fully trace all of the people who were at risk – the people who had dined at the Shorebird Inn since March 1, 2021.

Of particular concern was the fact that Shorebird had provided no information with respect to people who had dined on March 4, 5, 6, 7, 8 and 9, 2021. On March 10, 2021, public health officials issued a public health announcement indicating there had been a COVID-19 outbreak at the Shorebird Inn. Defence Evidence - Bryan Baraniski : [ 28 ] At all times relevant to these proceedings, Bryan Baraniski was one of the owners of Shorebird.

Bryan Baraniski testified that he was the managing partner of the Shorebird Inn and that this was his responsibility to ensure compliance with the Restaurant PHO and any other applicable public health order. [ 29 ] Bryan Baraniski testified that to comply with Shorebird’s obligations under the Restaurant PHO, Shorebird decided to put up a notice at the entrance to the restaurant at the Shorebird Inn, together with a sign-in sheet, and then to have their staff remind dine-in patrons to sign the sheet.

The notice that was posted on the wall above the sign-in sheet read as follows: CAUTION YOU ARE ENTERING A BAR/RESTARUANT OUR STAFF IS DOING THEIR BEST TO CLEAN AND SANITIZE AROUND YOU SOCIAL DISTANCING SHOULD BE CONSIDERED, BUT SOMETIMES IMPOSSIBLE TO MAINTAIN PLEASE SIGN THE REGISTER WITH YOUR NAME & PHONE NUMBER ENTER AT YOUR OWN RISK -Management [ 30 ] Mr. Baraniski said that each night he brought the sign-in sheet back to his office and then put it out the next morning on a table at the entrance to the restaurant.

Bryan Baraniski estimated that the Shorebird Inn would normally have approximately 100 customers per day, although the number of customers varied throughout the year. The number of customers per day was negatively

impacted by COVID-19. Mr. Baraniski acknowledged that March is a busy month at the Shorebird Inn with only June, July and August being busier. Apparently, there is an annual fishing derby at Tobin Lake and, in 2021, this event attracted a number of customers to the Shorebird Inn on March 5/6 . [ 31 ] Bryan Baraniski testified that he worked March 2, 3, 4, 5 and 6, 2021 at the Shorebird Inn. He also worked the morning of March 7, 2021. However, Mr. Baraniski said he had symptoms that day (he felt sick), so he went home at lunch.

That evening, his son, Brady, stopped by his house and decided that his father needed to go to the hospital. Upon arrival at the hospital, Bryan Baraniski was admitted. He had COVID-19. He spent one night in hospital at Nipawin, Saskatchewan and was transferred the next day to Saskatoon, where he remained for the next 29 days - much of that time he was in an intensive care unit. As Mr. Baraniski put it, he was “fighting for his life” when Nurse Gantefoer-Draude contacted him on March 8 and 9, 2021. Mr.

Baraniski told the nurse that he had no way of getting the information that the public health officials wanted and that they should contact his son, Brady Baraniski. [ 32 ] During his testimony, Bryan Baraniski confirmed that Brady Baraniski was “running the show” at the Shorebird Inn when he was in hospital and for some time after he got home because he was on oxygen. Bryan Baraniski testified that the information that Nurse Gantefoer-Draude was looking for was on the sign-in sheets in his office.

However, Bryan Baraniski acknowledged that his son, Brady, had access to this office and should have been able to retrieve the information. ANALYSIS Proof of the Offence : [ 33 ] The facts in this case are largely not in dispute. For example, there is no dispute that all events occurred in Saskatchewan, that Shorebird is a corporate entity, and that it owns the Shorebird Inn. There is also no dispute that in March of 2021, COVID-19 was a dangerous communicable disease that posed a serious and significant public health risk.

There is also no dispute that the Restaurant PHO were a valid exercise of delegated authority and were in force and effect at all times relevant to these proceedings. [ 34 ] Furthermore, there is no dispute that a COVID-19 outbreak occurred at the Shorebird Inn on or about March 7, 2021.

There is also no dispute that there was a request by a medical health officer for Shorebird to provide its Dine-in List for the period of March 2, 2021 to March 9, 2021 and that the purpose of that request was for contact tracing. [ 35 ] Shorebird argued that the Crown has failed to prove that the information provided by Shorebird did not contain the names of all patrons who dined at the Shorebird Inn between March 2, 2021 and March 9, 2021. With all due respect, this argument must fail.

Having considered the evidence, I am satisfied beyond any doubt that the information provided by Shorebird failed to comply with the obligations as set forth in para. 12 of the Restaurant PHO. Although the evidence is circumstantial, it is overwhelming. First, the system established by Shorebird to collect the names of dine-in patrons was voluntary. It was intended to provide those patrons who wanted to leave their names (and contact information) with a place to do so. It was not intended to capture the names and contact information for any patrons who did not want to give out such information.

The compelling inference is that Shorebird did not deny service to any customer that did not provide his/her name and contact information. Second, although the names were redacted, the sign in sheet only capturing the names of 11 customers for March 1, 2021; 16 customers on March 2, 2021; and 25 customers on March 3, 2021. However, the compelling inference from Bryan Baraniski’s testimony is that the Shorebird Inn was serving more customers at this time than were recorded on the sign-in sheet.

Third, no information was provided by Shorebird to the medical health officer respecting diners at the Shorebird Inn for March 4, 5, 6, 7, 8, or 9, 2021. However, there was evidence that the Shorebird Inn was busy because of the fishing derby which occurred at that time. Fourth, both Inspectors Philipation and Hayduk observed patrons at the Shorebird Inn who had not entered their information in the sign-in sheet. Fifth, on more than one occasion, patrons left inappropriate comments on Shorebird’s sign- in sheet.

There is a compelling inference that any diner that left an inappropriate comment did not also leave his/her name or contact information. [ 36 ] Simply put, the preponderance of evidence leads me to the singular and overwhelming conclusion that Shorebird did not comply with its obligations to keep a list of the names and contact information for all patrons who dined at the Shorebird Inn between March 2, 2021 and March 9, 2021 and thus were unable to provide such a list when requested to do so by a medical health officer as required by s. 12 of the Restaurant PHO. The Defence of Due Diligence :

[37] Having considered the regulatory scheme established pursuant to The Public Health Act, 1994 and The Disease ControlRegulations, I am satisfied that the failure of an owner of a restaurant to comply with the obligations set forth in s.12 of the RestaurantPHO is a strict liability offence.

This includes the failure of an owner to collect the names and contact information for dine-in patronsand the failure of an owner to maintain this information for the prescribed period of time, as well as the failure of an owner toimmediately provide this information to a medical health officer upon request. [38] As the Supreme Court of Canada noted in R v Sault Ste. Marie, (SCC), [1978] 2 SCR 1299, there is nonecessity for the Crown to prove the existence of mens rea for a strict liability offence. Proof that an accused did the prohibited act issufficient.

However, it is open to an accused to avoid liability for the offence by proving that he/she took all reasonable care to avoidcommitting the offence. [39] While I appreciate that the requirement for restaurateurs to maintain a Dine-in List was a new regulatory initiative in March of2021 (having only been introduced a few months earlier), I am satisfied that both Inspectors Philipation and Hayduk provided clearexplanations of the regulatory requirement to Shorebird’s operating mind, as well as cautions about non-compliance on January 7, 2021,January 15, 2021 and March 2, 2021, together with encouragement and advice on how Shorebird could comply with its regulatoryobligations.

The scheme established by Shorebird to collect and record the required information was patently defective and remainedunchanged notwithstanding repeated cautions by public health officials. No reasonable restaurateur would have believed that a voluntarysign-in sheet, even with the cautionary information set forth in the adjacent poster, would have resulted in the collection of the names andcontact information for all dine-in patrons. Simply put, Shorebird’s non-compliance did not occur because Bryan Baraniski was inhospital.

Shorebird was unable to provide the prescribed information because its system for collecting that information was patentlydefective and it refused to do it right. [40] In light of the evidence in these proceedings, the defense of due diligence is not available to Shorebird. THE CHARTER ARGUMENTS: [41] As I have noted, Shorebird takes the position that the requirement for it to maintain a Dine-in List was in a violation ofvarious Charter-protected rights, including freedom of expression, freedom of assembly and association, and that it constituted anunconstitutional search and seizure.

Although Shorebird’s Charter Notice was drafted rather broadly, the gravamen of Shorebird’sargument is that the effect of the Restaurant PHO was a breach of s. 8 of the Charter – being an unreasonable seizure and collection ofthe private information of the dine-in patrons at their restaurant. Shorebird does not assert that their own rights were infringed by theRestaurant PHO. Rather, Shorebird takes the position that these orders represent an unreasonable and unjustifiable infringement of theCharter​ rights of their dine-in patrons. Shorebird seeks a remedy under s. 52(1) of the Constitution Act, 1982.

Specifically, Shorebirdasks this Court not to apply the provisions of the Restaurant PHO. [42] During oral argument, counsel for Shorebird acknowledged that the real Constitutional question raised by his client’s CharterNotice was whether or not the effect of the Restaurant PHO resulted in a violation of the privacy rights of persons wishing to dine in arestaurant.

While his client’s Charter Notice also asserted that the effect of the Restaurant PHO was concomitant breaches involving s.2(b) – Freedom of Expression; s. 2(c) – Freedom of Peaceful Assembly; and s. 2(d) – Freedom of Association, each of these assertionswere derivative of Shorebird’s privacy argument. I concur. This is a privacy case. Does Shorebird have standing to raise the Charter rights of its patrons?

YES. [43] In R v Big M Drug Mart Ltd., (SCC), [1985] 1 SCR 295, the Supreme Court of Canada found thatcorporations can raise the Charter rights of others as a defense to a charge even though that corporation may lack standing to act onbehalf of those individuals in ordinary litigation. This is based on the principle that no one, including a corporation, should be convictedof an offence if the law pursuant to which they have been charged is unconstitutional. Shorebird’s standing was acknowledged by theCrown. Is the failure of Shorebird to call evidence from its patrons fatal to its application?

NO. [44] While acknowledging that Shorebird has standing to raise the Charter rights of its patrons, the Crown argued that the failureof Shorebird to lead evidence from its patrons is fatal to its application. The Crown relied on the decision of the Supreme Court ofCanada in MacKay v Manitoba, (SCC), [1989] 2 SCR 357 [MacKay] wherein the Court noted the need for applicants to

establish the factual basis in Charter cases. In Danson v Ontario (Attorney General), (SCC), [1990] 2 SCR 1086 at p.1101 [Danson], the Court said the following respecting the need for evidence in Charter cases where the “effect” of a measure is allegedto be unconstitutional: [32] …In general, any Charter challenge based upon allegations of the unconstitutional effects of impugned legislation must beaccompanied by admissible evidence of the alleged effects.

In the absence of such evidence, the courts are left to proceed in a vacuum,which, in constitutional cases as in nature, has always been abhorred. [45] The Crown also relies on two Saskatchewan cases, namely 604598 Saskatchewan Ltd. (cob Great Canadian Superbar) vSaskatchewan (Liquor and Gaming Authority), , 163 Sask R 104 (Sask CA) [Superbar] and 605715 SaskatchewanLtd (cob Showgirls) v Saskatchewan (Liquor and Gaming Licensing Commission), 2000 SKCA 97, 199 Sask R 144 [Showgirls].

InSuperbar, the applicant failed to lead any evidence from the dancers whose rights were alleged to have been affected by the restrictionsimposed by the Liquor and Gaming Authority. In that case, the Court found that, without evidence from the dancers, it was not possibleto determine if dancing was “expressive” and thus protected by s.2(

b) of the Charter. In Showgirls, several dancers testified before theLiquor and Gaming Licensing Commission. Although the impugned regulations were ultimately upheld by the Court, the “expressive”nature of dancing was accepted because there was evidence to that effect before the Court. [46] In the present case, while Mr. Baraniski testified about the operation of the Shorebird Inn, no evidence was led by any personwhose Charter rights Shorebird asserts were infringed.

The Crown cautioned this Court about the perils of making any findings orgranting any remedy in the face of this evidentiary vacuum. [47] While the Crown’s caution is well taken, I find that I have both adjudicative facts (such as who did what and when) andlegislative facts (such as context) even without direct evidence from Shorebird’s patrons.

For example, various facts were proven bydocumentary evidence and testimony and other facts may be reasonable inferred on the balance of probabilities from that evidence,including: • During the relevant period of time, COVID-19 was a dangerous communicable disease that posed a serious and significant publichealth risk. • Contact tracing was an important tool utilized by public health officials to reduce the risk to health presented by that virus. • Restaurants and other public eating establishments presented an increased risk of exposure to COVID-19 for dine-in patrons. • Contact tracing was difficult in a restaurant setting because of the volume of customers, the mixing of households, and the lack ofavailable contact information. • The requirement for restaurateurs to maintain a Dine-in List was for the purpose of contact tracing in the event of an outbreak ofCOVID-19. • During the relevant period of time, persons wishing to dine in a restaurant were required to divulge their first and last name,together with their contact information, [the Dine-in List] to the restaurant. • Restaurateurs were required to maintain the Dine-in List for a period of thirty days. • Restaurateurs were required to provide their Dine-in List to medical health officers but only in the event there was a need forcontact tracing. • Restaurateurs would have been required to refuse entry to any person refusing to provide their name and contact information at therisk of being charged with an offence under The Public Health Act, 1994. • A number of patrons to Shorebird Inn failed or refused to voluntarily provide their names or contact information when asked to doso by Shorebird. • Certain patrons to the Shorebird Inn, when asked to provide their names and contact information, made inappropriate commentson Shorebird’s sign-in sheet. [48] I also take judicial notice of the fact that, absent the requirement for restaurants to maintain a Dine-in List, a person wishing todine in a restaurant or other public eating establishment could have done so anonymously or at least with sufficient anonymity thathis/her presence in a particular restaurant at a particular time would have been functionally obscure. [49] For the narrow purpose of deciding whether or not a violation has occurred of the s. 8 rights of dine-in patrons at the

Shorebird Inn, I find that I am not in the kind of factual vacuum described by the Supreme Court of Canada in Danson or found by theSaskatchewan Court of Appeal in Superbar. As a result, it would not be appropriate to dismiss Shorebird’s Charter application based ona lack of evidence. Did the requirement for restaurateurs to collect the names and contact information of their dine-in patrons result in an infringementof the right of those patrons to be secure against unreasonable search and seizure? NO. [50]

Section 8 of the Canadian Charter of Rights and Freedoms provides as follows: 8. Everyone has the right to be secure against unreasonable search and seizure. [51] During argument, Shorebird took the position that the Restaurant PHO required restaurateurs to take personal and confidentialinformation from their dine-in patrons. Shorebird noted that collecting a person’s name and contact information also collects informationabout the establishment that the person entered and when. As a result, the government is able to collect more than just a person’s nameand contact information.

The government is also able to gather information about a person’s movements, habits and associations. Shorebird argued that it is through the collection of seemingly mundane information – like names, contact information, movements andassociations – that corporations like Facebook, and even foreign marketing and intelligence agencies, can create detailed profiles ofpotential targets.

Shorebird expressed the concern that, while individuals might consent to social media companies collecting theirinformation, they are unlikely to be aware of that third parties and even foreign agents might be getting access to the information that hasbeen collected. [52] Simply put, Shorebird took the position that collecting the names and contact information of dine-in patrons gave thegovernment access to more than just mundane information – it gave the government access to the kind of information that the Charterseeks to protect through s. 8.

Shorebird argued that this information, when taken as a whole, was the kind of information that a person ina free and democratic society might not want to have disseminated to the state.

Shorebird took the position that forcing restaurateurs tocollect this information and then forcing them to disseminate that information to the state resulted in violation of s. 8 of the Charter.Shorebird argued that it should not be prosecuted by a law that offends the Charter. [53] Assessing whether an individual’s s. 8 rights have been violated involves two fundamental determinations: whether a searchor seizure has taken place and, if so, whether the search or seizure was reasonable. See: R v Arnault, 2019 SKCA 109 at para 35, [2020]5 WWR 620 [Arnault].

Not all government inspections constitute a “search” within the meaning of s. 8 of the Charter. Determiningwhether a search within the meaning of s. 8 has occurred, depends on whether the individual had a reasonable expectation of privacy inthe subject matter of the search. As noted by the Supreme Court of Canada in Hunter v Southam Inc., (SCC), [1984] 2SCR 145, the guarantee of security from unreasonable search protected by s. 8 of the Charter only protects the reasonable privacyexpectations of an individual. In other words, “reasonableness” is a limitation on the guarantees provided by s. 8.

This limitation requiresan assessment as to whether in a particular situation the individual’s interest in being left alone by the government must give way to thegovernment’s interest in intruding on that individual’s privacy in order to advance its goals. [54] While I am satisfied that dine-in patrons at restaurants and other public eating establishments have a reasonable expectation ofprivacy respecting their names and contact information, the overwhelming preponderance of evidence is that the collection of thisinformation by restaurateurs was a necessary public health measure, that no more information than was necessary was collected, and thatappropriate limitations were in place as to when the government could have access to this information and by whom.

When one stops andconsiders the totality of the circumstances, it becomes abundantly clear that the individual privacy rights of diners were required to giveway to the state’s compelling interest in protecting the public from the health risks presented by COVID-19 during the exigentcircumstances being addressed by the government during the term of the Restaurant PHO. My reasons for these conclusions are setforth below. Do dine-in patrons have a reasonable expectation of privacy in the information that restaurants are required to collect?

YES. [55] In numerous cases, the Supreme Court of Canada has directed that courts must consider the totality of circumstances and mustutilize a contextual approach when analyzing alleged breaches of s. 8 of the Charter given the broad range of circumstances wherein thestate may seek to collect information from an individual, the bewildering range of techniques available for the state to do so, and the vastrange of information that the state may seek to collect. To further aid in the examination of alleged violations, the Supreme Court ofCanada has provided guidance in the form of a four-part test.

I find the clearest articulation of this test is found in R v Cole, 2012 SCC53 at para 40, [2012] 3 SCR 34 [Cole]:

[40] The “totality of the circumstances” test is one of substance, not of form.

Four lines of inquiry guide the application of the test: (1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances ( Tessling , at para. 32; …). [ 56 ] Examination of the subject matter of the search : The subject matter of the seizure in this case is seemingly mundane information; namely, the names and contact information of dine-in patrons at restaurants and public eating establishments.

However, I agree with counsel for Shorebird that the collection of this information also results in the collection of temporal information (when) and geographic information (where) about that same individual. Furthermore, I accept that prior to the introduction of the Restaurant PHO, persons wishing to dine in a restaurant could have done so anonymously or at least with sufficient anonymity that his/her presence in a particular restaurant at a particular time would generally not been observable by the state.

I also note that following the introduction of the Restaurant PHO, restaurateurs were required to refuse entry to any person refusing to provide their name and contact information at the risk of being charged with an offence under The Public Health Act, 1994 .

For these reasons, I am satisfied that the Restaurant PHO required restaurateurs to collect personal information – information that an individual may not wish to disseminate to the state. [ 57 ] Determination of Shorebird’s direct interest : While the privacy right being discussed belongs to the patron and not the restaurant, I am satisfied that Shorebird has a direct interest in the subject matter of the search because Shorebird’s failure to provide the subject matter of the search to the state is the basis upon which it has been charged with a violation of The Public Health Act, 1994 . [ 58 ] Whether the dine-in patrons of the Shorebird Inn had a subjective expectation of privacy regarding the information that Shorebird was required to collect : The Crown cautioned that, absent direct evidence from diners, it is not possible to conclude that any of the diners had a subjective expectation of privacy in their names or their contact information.

I disagree. As the Supreme Court of Canada noted in R v Patrick , 2009 SCC 17 at para 37 , [2009] 1 SCR 579, it is not always necessary for a Court to have direct evidence of a person’s subjective expectation of privacy for the court to infer that a subjective expectation exists. In the present case, there is a reasonable inference from the evidence that some of the individuals who dined at the Shorebird Inn did not want to leave their name and/or their contact information when asked to do so.

This evidence includes the fact that some patrons did not leave their names and contact information and others left inappropriate comments. As noted by the Court in Patrick , the subjective expectation test is not a high hurdle. [ 59 ] Whether the expectation of privacy on the part of dine-in patrons was objectively reasonable : Each person has a biographical core of personal information which individuals in a free and democratic society would wish to maintain control over and may not wish to disseminate to the government.

This core of personal information is the kind of information that would tend to reveal intimate details of a person’s lifestyle and personal choices. The closer the subject matter is to this biographical core of personal information, the more objectively reasonable is the person’s expectation of privacy. See: Cole at paras 45 and 46 . [ 60 ] The Restaurant PHO required diners to disclose their first and last name, together with a means of contact (their phone number or email address).

The collection of this information out of necessity also resulted in the collection of information about when that person was at a particular location. The Crown argued that this information was collected in a public place and involved the kind of information that could have been gained by a casual observer who happened to be at the restaurant at the same time. However, the fact that the information was gathered in public does not render it immune from Charter protection. See: R v Jarvis , 2019 SCC 10 , [2019] 1 SCR 488.

The Crown also argued that those persons who gave their names did so with full knowledge of the purpose for which the information was gathered and did so voluntarily. While I acknowledge that some diners voluntarily provided their names (and contact information) and may have done so precisely because they wanted to be contacted if an outbreak of the virus occurred, the same thing cannot be said for everyone.

Some people did not voluntarily provide their name, or their contact information - leading to the reasonable inference that they did not want to provide this information. [ 61 ] A component of informational privacy is the concept of anonymity. Anonymity permits an individual to act in public while at the same time preserving their right to be free from identification and surveillance by the state. In a variety of public contexts, we may expect to be casually observed but not expect to be personally identified and the subject to surveillance by the state.

See: R v Spencer , 2014 SCC 43 at paras 41 to 44 , [2014] 2 SCR 212. In Spencer , the Court was dealing with the issue of informational privacy in the context of Internet use. However, I find the situation faced by diners in restaurants under the Restaurant PHO to be similar. Eating in a restaurant is an inherently public act and diners would expect that they may be casually observed by those who happened to be present. However, diners would not reasonably expect that someone is collecting and recording their names (and contact information) for potential disclosure of that information to a government official.

Faced with that kind of surveillance, some diners might decide not to eat in a restaurant. [ 62 ] In my opinion, the people dining at the Shorebird Inn in March of 2021 had a reasonable expectation of privacy in the kind of

information that Shorebird was required to collect to comply with the Restaurant PHO and the collection of this information met thedefinition of a “search” within the meaning of s. 8 of the Charter. Under the circumstances, was it reasonable to collect personal information from diners? YES. [63] Once the applicant has established that a “search” has occurred, the onus shifts to the Crown to establish that, in the totality ofthe circumstances, that search was reasonable. See: R v Collins, (SCC), [1987] 1 SCR 265 at para 22. See also: Arnaultat para. 38.

A three-part test is utilized to determine if a search was reasonable: First, the search must be authorized by law. Second, thelaw itself must be reasonable. Third, the manner in which the search was carried out must be reasonable. See: Collins at para. 23. [64] Authorized by Law: Shorebird did not dispute, and I find that the Restaurant PHO were a valid exercise of delegatedregulatory authority. The Restaurant PHO were in full force and effect at all times relevant to these proceedings and these public healthorders required the collection of the information contained in the Dine-in List.

In my opinion, the search was authorized by a law. [65] Reasonableness of the Law: The evidence in these proceedings demonstrated that contact tracing is a method commonly usedby public health officials in reducing the public health risks associated with an outbreak of any number of communicable diseases in thecommunity. I am satisfied that, in March of 2021, contact tracing was a necessary and effective means for identifying individuals whomay have been exposed to COVID-19 and for reducing the public health risks associated with that potential exposure.

I am also satisfiedthat the collection of the information contained in the Dine-in List by restaurateurs was necessary to provide a practical and efficientmeans for contact tracing in the event of a COVID-19 outbreak in a restaurant setting.

Finally, I am satisfied that, without the collectionof this information, the ability of public health officials to locate individuals at risk because of a potential exposure would be frustrated. [66] Bryan Baraniski’s own personal experience and the outbreak that occurred at the Shorebird Inn graphically illustrates theserious public health risk presented by COVID-19 and the need for public health officials to have timely access to reliable contactinformation in the event of an outbreak – particularly so in a restaurant setting where a high volume of people from different householdswere mixing in a confined space and in circumstances where the risk of transmission was increased.

Simply put, the Restaurant PHOwere enacted to address a pressing and substantial public health concern. As this case clearly demonstrates, without accurate andimmediately access to contact information by public health officials in the event of a viral outbreak at a restaurant, the health and well-being of many people can be put at risk – not just the lives of the diners potentially affected but also the members of their household andlocal community.

I am also satisfied that no more information than was necessary was collected for the Dine-in List and that appropriatelimitations were incorporated into the Restaurant PHO as to when the government could have access to this information and by whom. [67] Under the unique and exigent circumstances facing Saskatchewan in March of 2021, I have no difficulty in concluding thatthe Restaurant PHO were a reasonable exercise of regulatory authority. The requirement to collect diner’s personal information waslimited such that no more information was collected than was necessary to enable contact tracing.

The law was not only rationallyconnected to the need for contact tracing, but likely represented the only practicable means to do so in the event of a viral outbreak in arestaurant setting.

Simply put, the law infringed upon the diners’ right to privacy no more than was necessary to achieve thegovernment’s objective. [68] Reasonable in the Manner of the Search: In the present case, the public health officials only sought Shorebird’s Dine-in Listbecause there had been an outbreak of COVID-19 at the Shorebird Inn and the names and contact information for potentially affectedpatrons was needed so that these individuals could be contacted.

The uncontradicted evidence is that public health officials actedpromptly, appropriately, and out of a genuine concern for public health and safety. [69] Conclusion: In my opinion, the requirement that restaurants collect the names and contact information from their dine-inpatrons was not a violation of s. 8 of the Charter. Simply put, in March of 2021, the individual right of diners to privacy respecting theirnames and contact information was required to give way to the state’s compelling interest in protecting the public from the health riskpresented by COVID-19.

The law was rational, necessary and proportionate. The decision to enact the law was reasonable. Finally, themanner by which the law was utilized in the present case was predicated on compassion and a genuine concern for the well-being of thevery people that Shorebird’s noncompliance with the Restaurant PHO put at risk. Did the requirement for restaurateurs to collect the names and contact information of their dine-in patrons result in an infringementof the s. 2(b), (

c) or (

d) rights of those patrons? NO.

[ 70 ]

Section 2 of the Canadian Charter of Rights and Freedoms provides as follows: 2. Everyone has the following fundamental freedoms: (

a) freedom of conscience and religion; (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (

c) freedom of peaceful assembly; and (

d) freedom of association. [ 71 ] In addition to its privacy argument, Shorebird argued that the requirement for diners to provide the names and contact information in order to do something as routine as enter a restaurant was a breach of those persons’ freedom of expression as protected by s. 2(b), freedom of peaceful assembly as protected by s. 2(c), and freedom of association as protected by s. 2(d). [ 72 ] In my opinion, each of the arguments must fail for lack of evidence.

As the Crown correctly noted, I have no evidence from any of the diners whose freedoms of expression, assembly or association Shorebird argued were infringed. Unlike the inquiry respecting privacy rights, there is a clear evidentiary void respecting s. 2 rights. With respect to these rights, the caution of Justice Cory in Mackay , is well taken: [8] Charter cases will frequently be concerned with concepts and principles that are of fundamental importance to Canadian society.

For example, issues pertaining to freedom of religion, freedom of expression and the right to life, liberty and the security of the individual will have to be considered by the courts. Decisions on these issues must be carefully considered as they will profoundly affect the lives of Canadians and all residents of Canada. In light of the importance and the impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases.

The relevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great assistance to the courts. [9] Charter decisions should not and must not be made in a factual vacuum . To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions.

The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel. (Emphasis added) [ 73 ] Even if I am wrong to dismiss Shorebird’s s. 2 arguments based on a lack of evidence, I see little utility in conducting an analysis of these arguments.

Each of Shorebird’s s. 2 arguments are derivative of Shorebird’s challenge respecting the privacy of their patron’s personal information. However, I have found that the Restaurant PHO did not violate s. 8 of the Charter . In doing so, I have been satisfied that the requirement that restaurateurs collect the names and contact information of their dine-in patrons was “reasonable” under the circumstances and thus not an infringement of the affected individual’s privacy rights.

If any infringement of a Charter protected right occurred by the requirement for restaurateurs to collect the names and contact information of their dine-in patrons, was that requirement nonetheless justified under the circumstances? YES . [ 74 ]

Section 1 of the Charter reads as follows: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [ 75 ] In my opinion, no infringement of a Charter right resulted from the requirement for restaurateurs to collect the names and contact information of their dine-in patrons. However, even if the effect of the Restaurant PHO resulted in an infringement of either a s. 2 or s. 8 right, I find that infringement was justified under s. 1 of the Charter .

[76] In seeking to justify a law under s.1 of the Charter, two central criteria must be established. First, I must be satisfied that theobjective which the government sought to achieve through the enactment of the Restaurant PHO was important enough to warrantoverriding a constitutionally protected right or freedom. This criterion requires, at a minimum, that the government’s objective related tosomething that was a pressing and substantial concern in a free and democratic society at that time.

Second, the government must satisfyme that the means chosen through the enactment of the Restaurant PHO satisfies a “proportionality” test.

The proportionality test hasthree components: • The government must establish that the requirement to collect personal information from diners was rationally connected to thepublic health objectives that the government sought to achieve through enactment of the Restaurant PHO. • The government must also establish the Restaurant PHO impaired the Charter rights of diners as little as possible. • Finally, I must be satisfied that there was proportionality between the deleterious effects of requiring diners to provide personalinformation and the objectives the government sought to achieve by requiring diners to provide this information.

The more serious thedeleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justifiedin a free and democratic society. See: R v Oakes, (SCC), [1986] 1 SCR 103 [Oakes]. [77] Shorebird argued that the government’s objective in enacting the Restaurant PHO was unclear. For example, Shorebirdcautioned that, if COVID-19 is endemic, the virus may become something that is present in society forever. If the virus becomesendemic, then what pressing and substantial objective is the government seeking to advance and to what end?

Furthermore, Shorebirdargued that the government failed to establish that the objective of preventing, reducing and controlling the transmission of COVID-19would save lives. Simply put, Shorebird takes the position that the government has failed to prove that the enactment of the RestaurantPHO would advance a pressing and substantial concern. Shorebird also argued that the government did not need to prescriptively requirethe collection of names and contact information for diners to achieve the government’s goal of contact tracing.

Shorebird took theposition that a voluntary system, together with public announcements in the event of an outbreak, would have allowed for contact tracingwithout any infringement of the privacy rights of diners. Simply put, Shorebird took the position that the benefits the government soughtto obtain through the enactment of the Restaurant PHOs was not proportionate to the infringing effect of that law and another lessintrusive option was available. [78] I do not propose to conduct a detailed s.1 analysis in the present case for two reasons.

First, I have already determined that therestrictions on the privacy rights of diners imposed by the Restaurant PHO were reasonable and the “reasonableness” test utilized in a s. 8analysis covers essentially the same Constitutional ground occupied by the Oakes test in a s. 1 analysis. Second, I have the benefit of thedecision of Justice Konkin in Grandel v Saskatchewan, 2022 SKKB 209 [Grandel].

In my opinion, this decision provides compellingand persuasive answers to many of the concerns raised by Shorebird in its Charter challenge. [79] To begin with, Justice Konkin noted that deference is owed to the decisions made by public officials who are dealing with acomplex social problem, balancing the interests of competing groups, or seeking to protect a vulnerable segment of the population. I amsatisfied that public health officials were doing all three when they enacted the Restaurant PHO.

In Grandel, Justice Konkin found thatpublic health officials were charged with the task of protecting the public during a public health emergency involving serious illness anddeath, which was disproportionately impacting the most vulnerable. Justice Konkin noted that public health officials were required tobalance the need to curb the transmission of COVID-19 on the one hand with the need to minimize the negative impact of the pandemicon social and commercial activities.

Justice Konkin also noted that the exigency of the pandemic required public health officials to actnotwithstanding that the science around COVID-19 and its impact on the population was evolving, as was the virus. Simply put, JusticeKonkin found that more deference was owed to the decisions of public health officials in this context. I agree. If Justice Konkin’sconclusion respecting deference is not binding on me, it is very persuasive. It is also consistent with the approached adopted by theSupreme Court of Canada in Dore v Barreau du Quebec, 2012 SCC 12, [2012] 1 SCR 395.

In that case, the Court found that grantingdeference to the decisions of regulatory bodies is not inconsistent with the protection of Charter values. See: Dore at para 57. Was the requirement for diners to provide their names and contact information in furtherance of a pressing and substantial objective? [80] In March of 2021, COVID-19 was a dangerous communicable disease that posed a serious and significant public health risk.Based on the evidence, I am satisfied that contact tracing was an effective and reasonable public health measure to reduce the risksassociated with COVID-19 at that time.

Finally, I am satisfied that the requirement that restaurateurs collect the names and contactinformation of diners was to facilitate contact tracing in the event of a viral outbreak at a restaurant. On this basis, I find that therequirement that diners provide this information was in furtherance of a pressing and substantial public health concern – contact tracingduring a pandemic. In coming to this conclusion, I note that Justice Konkin found that “the protection of Saskatchewan residents from apotentially fatal and novel virus amidst a pandemic of said virus is pressing and substantial” in Grandel.

Was the requirement that diners provide their names and contact information rationally connected to the need for contact tracing ? [ 81 ] The evidence from these proceedings established that the collection of the information contained in the Dine-in List by restaurateurs was necessary to provide a practical and efficient means for contact tracing in the event of a COVID-19 outbreak at a restaurant. I am satisfied that the Restaurant PHO were carefully designed to achieve the objective in question.

There is no evidence that the requirement that diners provide their names and contact information was arbitrary or that public health officials based their decision to enact the Restaurant PHO on irrational considerations. Finally, I agree with the conclusion of Justice Konkin in Grandel wherein he found that public health officials were required to act in a situation where loss of life was at risk and did not need to – and could not - wait for scientific certainty before acting.

Did the requirement in the Restaurant PHO minimally impair the Charter rights they violated ? [ 82 ] Shorebird argued that an alternative system was available to public health officials seeking to contact patrons in the event of a COVID-19 outbreak at a restaurant - a system wherein patrons at restaurant could have been given the option of voluntarily providing their contact information, coupled with a public notice in event of an outbreak.

Shorebird argued that this alternative system would have achieved the objective of contact tracing without violating the privacy rights of diners. [ 83 ] In my opinion, Shorebird’s argument is flawed. First, the uncontradicted evidence in these proceedings demonstrated that the voluntary system employed by the Shorebird Inn in March of 2021 did not provide an effective means of identifying and contacting potentially affected diners. Second, the minimal impairment test is an example of where deference comes into play.

I am satisfied that requiring restaurateurs to collect contact tracing information from their patrons was a reasonable decision that fell within a range of reasonable policy alternatives. More importantly, I am satisfied that, without the collection of this information by restaurants, the ability of public health officials to identify and contact individuals at risk would have been frustrated. The requirement to collect diner’s personal information was limited such that no more information was collected than was necessary to enable contact tracing.

The law not only provided an efficient and practicable means to identify and contact persons potentially at risk, but it likely represented the only practicable means to do so in the event of a viral outbreak in a restaurant setting. [ 84 ] In my opinion, the Restaurant PHO minimally impaired the rights of diners. Was there Proportionality between the deleterious and salutary effects of the Restaurant PHO ? [ 85 ] In March of 2021, COVID-19 was a dangerous communicable disease that posed a serious and significant public health risk.

Our public health officials faced an immense task of responding to this novel virus that had rapidly became a pandemic. The virus was evolving, as was reliable information about the virus and its impact on the population. The Restaurant PHO were enacted to address a pressing and substantial public health concern posed by COVID-19.

As this case clearly demonstrates, without accurate and immediate access to contact information by public health officials in the event of a viral outbreak at a restaurant, the health and well-being of many people can be put at risk – not just the lives of the diners potentially affected but also the members of their household and local community. [ 86 ] Although the requirement that restaurateurs collect the names and contact information from their patrons infringed upon the privacy rights of those patrons, it was not a significant infringement of their privacy in light of the limitations in place respecting the retention and use of that information.

As I have already noted, when one considers the totality of the circumstances, it becomes abundantly clear that the individual rights of diners were required to give way to the state’s compelling interest in protecting the public from the health risks presented by COVID-19 during the exigent circumstances being addressed by the government during the term of the Restaurant PHO. CONCLUSION

[ 87 ] For the foregoing reasons, Shorebird’s Charter challenge to the Restaurant PHO is dismissed. I find Shorebird guilty of contravening s. 61 of The Public Health Act, 1994 by failing to collect the first and last names, and contact information, of all patrons who dined at their restaurant at Tobin Lake, Saskatchewan on or between March 2, 2021 and March 9, 2021, as required by s. 12 of the Public Health Order dated February 18, 2021, made pursuant to s. 25.2 of The Disease Control Regulations . Dated this 22 nd day of November, 2022, at the Community of Nipawin, in the Province of Saskatchewan. __________________________ S.D. Schiefner, J