Mark Friesen, Et Al (see Appendix A) (Accused/Applicants) - v. –, 2023 SKPC 18

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 18 Date: January 27, 2023 Information 991192828 (See Appendix

A) Location: Regina Between: Mark Friesen, Et Al (see Appendix A) (Accused/Applicants) - and – His Majesty the King In Right of Saskatchewan (Respondent) -and- The Attorney General of Saskatchewan (Respondent) Appearing: Elaine Anderson, Luke Coupal For the Accused/Applicants Dana Brûlé For the Crown Noah Wernikowski For The Attorney General for Saskatchewan DECISION REGARDING APPLICATION TO DISMISS CHARGES BASED ON ARGUMENTS THAT REGULATION IS ULTRA VIRES OF THE ACT , UNAUTHORIZED SUB DELEGATION AND SECTION 52(1) OF THE CONSTITUTION ACT, 1982

M. HINDS, J INTRODUCTION [ 1 ] The Applicants have been charged under

section 61 of The Public Health Act, 1994 , SS 1994, c P-37.1 [ PHA ] for failing to comply with a public health order [PHO] made pursuant to the now repealed

section 25.2 of The Disease Control Regulations , RRS c P- 37.1, Reg 11 [ Regulation ]. [ 2 ] In this case the Applicants objected to their charges on the following grounds: (

a) Subsection 25.2(2) of the Disease Control Regulations (the “ Regulation ”), upon which the Public Health Order (“PHO”) is ostensibly authorized, is ultra vires the Public Health Act, 1994 (“ Act ”); (

b) The Regulation and PHO are illegal for unauthorized sub delegating of statutory power; (

c) The Regulation and PHO are inconsistent with the provisions of the Constitution, and pursuant to subsection 52(1) of the Constitution Act, 1982 , no person may be convicted of an offence under a law which is itself inconsistent with the provisions of the Constitution. [ 3 ] This is not the first time accused individuals charged with offences under

section 61 of the PHA have made objections based on the three above noted issues. Ms. Anderson concedes that she has made identical challenges on behalf of some of the same and other accused in other separate proceedings before the Provincial Court of Saskatchewan. On November 17, 2022 in R v Mark Friesen, Jasmin Grandel, Richard Wintringham and Chey Craik and R v Hinderager Holdings Ltd ., 2022 SKPC 50 [collectively referred to as Hinderager Holdings ] my brother Judge Hendrickson dismissed two such challenges in their entirety.

On January 17, 2023 in R v Maylene Wong, Darrell Mills, Mark Friesen, Jonathon Wipf, Jasmin Grandel, Richard Wintringham and Tamara Lavoie 2023 SKPC 7 [ Wong ] my brother Judge Agnew also dismissed another identical challenge in its entirety. [ 4 ] The Attorney General for Saskatchewan (AG Sask) has invited this court to follow the Hinderager Holdings decision based on judicial comity (as was done in the decision in Wong ) and dismiss the application. The Applicants submit this application should succeed.

The Applicants request the court to recognize the invalidity of the Regulation and PHO and decline to apply such an invalid law. In addition, the Applicants request the court to grant an order and or declaration, pursuant to subsection 52(1) of the Constitution Act, 1982 dismissing the charges and or quashing the proceedings, or in the alternative for the Applicants to be acquitted of the charges against them. [ 5 ] For the reasons set out below I dismiss the application before me. ISSUES [ 6 ] The issues before the Court are as follows: (

a) Should this Court follow the decision in Hinderager Holdings and dismiss the application based on judicial comity? (

b) If this Court does not follow the decision in Hinderager Holdings and as a result the issues raised in this application need to be adjudicated afresh, should this application be dismissed? ANALYSIS

(

a) Should this Court follow the decision in Hinderager Holdings and dismiss the application based on judicial comity? [ 7 ] The doctrine of stare decisis (to stand by things decided) requires courts to follow precedents on the same or closely related issues. Vertical stare decisis requires lower courts to follow precedents from higher courts.

Horizontal stare decisis , which is also known as judicial comity requires that decisions of courts of coordinate jurisdiction must be followed, unless there are cogent reasons from departing therefrom. [ 8 ] In R v Comeau , 2018 SCC 15 at para 26 , [2018] 1 SCR 342 the Supreme Court of Canada noted the importance of stare decisis and the dangers of failing to adhere to authoritative precedent: [26] Common law courts are bound by authoritative precedent. This principle — stare decisis — is fundamental for guaranteeing certainty in the law.

Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This is called vertical stare decisis . Without this foundation, the law would be ever in flux — subject to shifting whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo. [ 9 ] In R v Sullivan , 2022 SCC 19 , 413 CCC (3d) 447 [ Sullivan ] the Supreme Court of Canada discussed the doctrines of vertical and horizontal stare decisis .

At para 65 the Supreme Court stated as follows: [65] Horizontal stare decisis applies to courts of coordinate jurisdiction within a province and applies to a ruling on the constitutionality of legislation as it does to any other legal issue decided by a court, if the ruling is binding. While not strictly binding in the same way as vertical stare decisis , decisions of the same court should be followed as a matter of judicial comity, as well as for the reasons supporting stare decisis generally (Parkes, at p. 158).

A constitutional ruling by any court will, of course, bind lower courts through vertical stare decisis . [ 10 ] Like vertical stare decisis , horizontal stare decisis (judicial comity) promotes legal certainty and predictability. It also prevents endless litigation on the same legal issues.

The principle of judicial comity was recently summarized in Sullivan as follows at paras 75 - 78 : [75] The principle of judicial comity — that judges treat fellow judges' decisions with courtesy and consideration — as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law.

Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances: 1. The rationale of an earlier decision has been undermined by subsequent appellate decisions; 2. The earlier decision was reached per incuriam ("through carelessness" or "by inadvertence"); or 3. The earlier decision was not fully considered, e.g. taken in exigent circumstances. [76] First, a judge need not follow a prior decision where the authority of the prior decision has been undermined by subsequent decisions.

This may arise in a situation where a decision has been overruled by, or is necessarily inconsistent with, a decision by a higher court (see Rowe and Katz, at p. 18, citing Kerwin, at p. 542). [77] Second, a judge can depart from a decision where it was reached without considering a relevant statute or binding authority. In other words, the decision was made per incuriam , or by inadvertence, a circumstance generally understood to be "rare" (see, e.g., The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd. , 2017 BCSC 1988 , 4 B.C.L.R. (6th) 370 , at para. 132 ).

The standard to find a decision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision.

It cannot merely be an instance in which an authority was not mentioned in the reasons; it must be shown that the missing authority affected the judgment (Rowe and Katz, at p. 19). [78] Third and finally, a judge may depart where the exigencies of the trial required an immediate decision without the opportunity to consult authority fully and thus the decision was not fully considered. An unconsidered judgment is not binding on other judges (Rowe and Katz, at p. 18, citing Spruce Mills , at p. 592).

[11] In Hinderager Holdings Judge Hendrickson considered each of the three issues set out in para 2 above and made the followingdeterminations: [38] In conclusion, the applicants have not established the Regulation is ultra vires The Public Health Act, 1994. Thus, the answer tothe question posed in issue one is ‘No’. The Regulation is not ultra vires its’ parent Act, The Public Health Act, 1994. [37] In my view, the Regulation does not effect an invalid sub delegation. I agree with the Crown’s argument on this issue. I find thesub delegation is valid. First, the use of the word “respecting” in

section 46 empowering the Lieutenant Governor in Council to enactregulations respecting the control of health hazards and respecting the prevention and control of communicable diseases, has import. Asstated in Peralta, supra, the use of the word ‘respecting’ in an enabling provision allows for the delegation of the administration of theregulations. Secondly, the powers conferred upon the Lieutenant Governor in Council in

section 46 of the Act are distinct from thepowers conferred upon the Minister by the Regulation. The language of the sub delegation does not simply repeat the language of thedelegation and the subdelegate is not empowered to do the exact same thing the delegate empowered to do.

Thirdly, it is not a situationwhere no standards exist; the Minister’s order making authority is restricted and the Minister is only able to make specifically listedorders and the Minister’s ability to make any order requires that such orders are in the public interest based on the opinion of the ChiefMedical Health Officer and with a view to preventing reducing and controlling the transmission of COVID-19.

Fourthly the concept ofadministrative necessities militates in favour of a finding that the sub delegation is valid. . . . . . . [47] In conclusion, I find the applicant has not demonstrated the Regulation is inconsistent with the Constitution Act, 1982. Thus, theanswer to the question posed in Issue II is ‘NO’, the impugned Regulation is not inconsistent with the constitution. [12] I am of the view that Hinderager Holdings decided the same legal issues raised in the application before this Court.

The court inWong came to the same conclusion. [13] The test set out in Sullivan at para 75 states that trial courts should only depart from binding decisions issued by a court ofcoordinate jurisdiction in three narrow circumstances: 1. The rationale of an earlier decision has been undermined by subsequent appellate decisions; 2. The earlier decision was reached per incuriam ("through carelessness" or "by inadvertence"); or 3. The earlier decision was not fully considered. [14] Counsel for the Applicants conceded during oral argument that circumstances 1 and 3 above, do not apply to this case.

Therationale of Hinderager Holdings decided on November 17, 2022 has not been undermined by subsequent appellate decisions. Nor isthere any suggestion that the decision in Hinderager Holdings was not fully considered. [15] The Applicants took the position during oral argument that the decision in Hinderager Holdings was reached per incuriam(“through carelessness” or “by inadvertence”).

However, Counsel for the Applicants made it clear that any carelessness or inadvertencewas not on the part of Judge Hendrickson, but rather on her part for not providing Judge Hendrickson with the following case law andstatutory authority: 1. R v Tenale, (BC CA) [Tenale]. 2. Reference re Manitoba Language Rights, (SCC). 3. Steve Dart Co. v Board of Arbitration, (FC), [1974] 2 FC 215 (FCTD). 4. Joseph Belanger v King, (SCC).

Section 2-35(4)(

a) of The Legislation Act, SS 2019, c L-10.2. [16] In Sullivan the Supreme Court at para 77 indicates that a decision made per incuriam or by inadvertence is a circumstance

generally considered to be “rare”. In addition, the standard to find a decision per incuriam is that the court failed to consider some authority such that had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision. [ 17 ] In this case, the case law and statutory provision referred to in para 15 of this decision may well have been relevant to arguments advanced by the Applicants before Judge Hendrickson.

I am reminded that the AG Sask in that case presented alternative arguments which were largely if not entirely accepted by Judge Hendrickson. In addition, the AG Sask points out that while Judge Hendrickson was considering the issue of sub delegation in Hinderager Holdings he specifically references the decision of Peralta v Ontario (1985), 49 OR 705 (Ont CA) [ Peralta ] in paragraphs 35 and 37 . A review of the decision in Peralta reveals it referred to and quotes from Tenale. Thus, it appears that Judge Hendrickson was aware of the Tenale decision.

Lastly, I am not persuaded had Judge Hendrickson been made aware of the other case law and the statutory provision now cited by the Applicants he would have come to a different decision, because the inadvertence struck at the essence of his decision. Accordingly, I find that the Applicants have not shown the decision in Hinderager Holdings was reached per incuriam. [ 18 ] In

summary, I find the objections (issues) on which this application is based have been previously considered and rejected in Hinderager Holdings a decision of my brother Judge Hendrickson. I find that the decision in Hinderager Holdings was fully considered, has not been undermined by subsequent appellant decisions and was not reached per incuriam . As a result of these findings I am following the decision in Hinderager Holdings and dismiss the application before me based on judicial comity. (

b) If this Court does not follow the decision in Hinderager Holdings and as a result the issues raised in this application need to be adjudicated afresh, should this application be dismissed? [ 19 ] As I am following the decision in Hinderager Holdings I am of the view there is no need to adjudicate the issues raised in this application afresh. [ 20 ] In the event I have erred in my decision to dismiss the application before me based on judicial comity, I note that I agree with Judge Hendrickson’s reasoning in Hinderager Holdings which addresses the same issues which are before me, and I would follow this decision even if I were not bound to do so.

CONCLUSION [ 21 ] The Application is dismissed. [ 22 ] I am grateful for the assistance of all counsel on this matter. ___________________________ M. Hinds, J

Appendix A Informations and Ticket Numbers Info 991192828 On or about January 30, 2021, fail to comply with a Public Health Order by attending a gathering exceeding 10 persons, contrary to

section 61 of The Public Health Act, 1994 . Accused Mark Friesen Ticket 85463187 Jasmin Grandel Ticket 85463188 Jonathon Wipf Ticket 85463189 Tamara Lavoie Ticket 85447852 Info 991192831 On or about February 20, 2021, fail to comply with a Public Health Order by attending a gathering exceeding 10 persons, contrary to

section 61 of The Public Health Act, 1994 . Accused Jasmin Grandel Ticket 85463838 Tamara Lavoie Ticket 85483836 Info 991192834 and Info 991213377 On or about March 27, 2021, fail to comply with a Public Health Order by attending a gathering exceeding 10 persons, contrary to

section 61 of The Public Health Act, 1994 . Accused Mark Friesen Ticket 85463753 Jasmin Grandel Ticket 85463750 Richard Brent Wintringham Ticket 85463752 Tamara Lavoie Ticket 85463754 Info 991192835 - On or about April 3, 2021, fail to comply with a Public Health Order by attending a gathering exceeding 10 persons, contrary to

section 61 of The Public Health Act, 1994 . Trial Jan 30/23 Accused Tamara Lavoie Ticket 854633434

Ticket 85342286 On April 11, 2021, fail to comply with Public Health Order by failing to wear a face covering when required to do so, contrary to

section 61 of The Public Health Act, 1994 . Accused David Gejdos Info 991192860 Count 1 On or about April 24, 2021, fail to comply with Public Health Order by failing to wear a face covering when required to do so, contrary to

section 61 of The Public Health Act, 1994 . Accused Erin De Jong Ticket 85492440 , Wayne Cowan Ticket 85464245 Victor Hagel Ticket 85492442 , John Slastukin Ticket 85492445 Chantel Temple Ticket 85492438 Tanya Apodaca Ticket 85492450 Erinn Knoll Ticket 85492458 Tamara Lavoie Ticket 85492439 Info 991192860 Count 2 - On or about April 24, 2021, fail to comply with a Public Health Order by attending a gathering exceeding 10 persons, contrary to

section 61 of The Public Health Act, 1994 . Accused Gerald Ferguson Ticket 85492444 Jasmin Grandel Ticket 85355138 Chris Saccocia Ticket 85423049 Tamara Lavoie Ticket 85492439 Ticket 85437645 - On May 1, 2021, did fail to comply with para 4(

d) of the Public Health Order dated April 20, 2021 by being involved in a public or private outdoor gathering exceeding 10 persons. Accused: John Slastukin

Info 991192864 and Info 991213623 On or about May 8, 2021, fail to comply with a Public Health Order by attending a gathering exceeding 10 persons, contrary to

section 61 of The Public Health Act, 1994 . Accused Maxime Bernier Ticket 85482573 Mark Friesen Ticket 85464347 Conrad Goodsir Ticket 85492829 Cindy Gall Ticket 85464353 , Nathan Lynchuck Ticket 85492293 Luke Tournier Ticket 85492830 Michelle Tournier Ticket 85482574 Richard Brent Wintringham Ticket 85462670 Tamara Lavoie Ticket 85462671 Info 991192882 - On or about May 15, 2021, fail to comply with a Public Health Order by attending a gathering exceeding 10 persons, contrary to

section 61 of The Public Health Act, 1994 . Trial Mar 20-24, 27/23 Accused Tanya Apodaca T icket 85482652 Gerald Ferguson Ticket 85492963 Cindy Gall Ticket 85492769 Gasmin Grandel Ticket 85482578 Brenda Kriese Ticket 85391201 Edward Palchinski Ticket 85391202 John Slastukin Ticket 85482579 Erinn Knoll Ticket 85492794 Tamara Lavoie Ticket 85492792 Info 991192834 - Info 991213377 On or about March 27, 2021, fail to comply with a Public Health Order by attending a gathering exceeding 10 persons, contrary to

section 61 of The Public Health Act, 1994 . Accused Mark Friesen Ticket 85463753 Jasmin Grandel Ticket 85463750 Richard Brent Wintringham Ticket 85463752 Tamara Lavoie Ticket 85463754