Mark Friesen - v. –, 2023 SKPC 20

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 20 Date: February 3, 2023 Ticket No: 85447890 Location: Regina Between: Mark Friesen - and – His Majesty the King - and – The Attorney General of Saskatchewan Appearing: Elaine Anderson For the Accused/Applicant Dana Brûlé For the Crown Noah Wernikowski For the Attorney General for Saskatchewan DECISION ON THE VALIDITY OF THE PUBLIC HEALTH ORDER DATED NOVEMBER 26, 2020. M. HINDS, J

INTRODUCTION [ 1 ] Mark Friesen is charged that on December 12, 2020 at Regina, Saskatchewan he did fail to comply with a Public Health Order, dated November 26, 2020 (“impugned PHO”), by participating in an outdoor public/private gathering of more than 30 people, contrary to

section 61 of The Public Health Act, 1994 , SS 1994, c P-37.1 [the Act ] [ 2 ] On December 14, 2022, the applicant, Mark Friesen filed a Notice of Application to Quash Proceedings with this Court alleging that the impugned PHO purportedly made by the Chief Medical Health Officer under the authority of

section 38 and subsection 45(2) of the Act and authorized by the Minister of Health, is invalid because: Neither

section 38 nor 45(2) of the Act authorizes a minister or a medical health officer to issue orders such that “Outdoor private/public gatherings over 30 people are prohibited.” [ 3 ] In the alternative, the applicant takes the position that if

section 38 of the Act authorizes the minister to make such orders, then the Order must be directed to a specific person because such orders made under the authority of

section 38 are subject to appeal pursuant to subsection 40(1) of the Act . [ 4 ] Further, in the alternative, the applicant takes the position that if subsection 45(2) of the Act authorizes the minister to make such orders, then the minister’s power may only be delegated to a medical health officer pursuant to subsection 45(2.2) of the Act and pursuant to subsection 45(2.3)(

b) of the Act an order made by a medical health officer pursuant to subsection 45(2.2) terminates 48 hours after it is made unless the minister makes an order extending its effect.

In this case it is common ground that the Minister of Health did not make an order extending its effect. [ 5 ] Relying on the deficiencies underlying the PHO as set out above, the applicant submits there was no valid Public Health Order in effect on December 12, 2020, and the charge set out in the ticket before the Court is a nullity. [ 6 ] The Attorney General for Saskatchewan (the “AG Sask”) takes the position that the Court should not accept any of the applicant’s arguments.

The AG Sask submits that (1) the presumption of regularity applies to the delegation from the Minister of Health to the Chief Medical Health Officer and it has not been rebutted; (2) in the alternative, the evidence before the Court shows the Minister of Health properly delegated his order-making powers to the Chief Medical Health Officer;

(3) The PHO was authorized by its governing legislation – sections 38 and 45 of the Act ; (4) Subsections 45(2.2) and 45(2.3) of the Act do not apply in this case. [ 7 ] For the reasons which follow, this Court finds that the then Minister of Health properly delegated his order-making powers under the Act , to the Chief Medical Health Officer on March 13, 2020. The Court also finds that the PHO signed by Dr. Shahab, Chief Medical Health Officer dated November 26, 2020, was valid on December 12, 2020. ISSUES [ 8 ] The issues before the Court are as follows:

i) Does the Presumption of Regularity apply to this case? If so, has the Applicant rebutted the Presumption of Regularity? ii) Did the then Minister of Health, James Reiter, delegate his powers to make Public Health Orders under the Act to the Chief Medical Health Officer on March 13, 2020? If so, was this delegation effective on November 26, 2020? iii) Is the impugned PHO authorized by sections 38 and/or 45 of the Act ? iv) What is the effect, if any, of subsection 45(2.2) of the Act ?

i) Does the Presumption of Regularity apply to this case? If so, has the Applicant rebutted the Presumption of Regularity? [ 9 ] In this case the Applicant takes the position that the PHO was not valid and as a result the charge set out in the ticket before the Court is a nullity. Part of this submission is directed at whether there was a valid delegation from the Minister of Health (MH) to the Chief Medical Health Officer (CMHO) particularly under

section 45 of the Act . [ 10 ] The Applicant submits there is no explicit or implicit authority for the Minister to delegate his/her order-making powers under

section 45 and as a result the PHO in place on December 12, 2020 was of no force and effect. [ 11 ] The Attorney General for Saskatchewan initially takes the position that the presumption of regularity applies to this case. In addition, the AG Sask takes the position that the express statutory authority for a Minister to delegate decision-making authority to a person within the Ministry is set out in

section 2 - 34(2) of The Legislation Act , SS 2019, c L-10.2 [ Legislation Act ] which will be discussed later. [ 12 ] In R v Keough , 2022 SKPC 23 at para 34 my sister Judge Marquette sets out a helpful

summary of presumption of regularity which I adopt. [34] The presumption of regularity is discussed in the Law of Evidence as follows: 4.64 The common law presumption of regularity is sometimes referred to by its Latin label omnia praesumuntur rite esse acta . In its narrower application, the presumption serves to regularize the appointment and acts of persons acting in an official capacity. Where a person is shown to have acted in an official capacity, it is supposed that the person would not intrude herself or himself into a public situation without authorization.

Furthermore, the person's acts are presumed to be regular. [35] The Saskatchewan Court of Appeal in R v Armbruster addressed the presumption of regularity in the context of proof required to prove that a peace officer was a qualified breath technician. The Court referenced its decision in R v Adams where it stated that as an alternative to calling the Attorney General or their deputy at trial, or filing a copy of the official Gazette or copy or certified copy of the appointment pursuant to the provisions of the Canada Evidence Act , the Crown could rely on the presumption of regularity, stating: [3] ...

Third, the Crown may proceed by relying on certain presumptions of law and rules of evidence developed by the common law. It may, for example, rely upon the application of the maxim omnia praesumuntur rite esse acta . In effect that is what happened in the present case. When this presumption is relied upon to prove that a public officer was duly appointed, the rules respecting the burden and the shifting of it are important to bear in mind.

These rules are aptly stated in Cross on Evidence (4th ed. 1974), p. 112 in these terms: If it becomes necessary to prove that a public officer was duly appointed, one way of achieving this result, in the absence of a statutory provision limiting the mode of proof, would be to show that the man in question had acted in the requisite capacity.

If, however, the party denying due appointment were to adduce evidence fit to be left to a jury tending to negative the appointment, the party bearing the evidential burden on the issue would lose unless the tribunal of fact was satisfied to the requisite degree of persuasion that the man was duly appointed. [36] Chief Justice Richards in Armbruster stated the principle enunciated by former Chief Justice Bayda in the Adams was that "in the absence of evidence to the contrary, persons acting in public capacities are presumed to have been regularly and properly appointed." and concluded that this approach was consistent with a well-recognized maxim of omnia praesumuntur rite et solemnitr acta . [ 13 ] In this case, the

preamble of the PHO dated November 26, 2020 (see para 29 of this decision) refers to an authorization by the Minister of Health for Dr. Shaqib Shahab, an official with the Ministry of Health and the Chief Medical Health Officer for Saskatchewan, to act under

section 45 of the Act . Applying the doctrine of regularity there is a prima facie presumption that Dr. Shahab has the necessary authority to act under

section 45 of the Act and impose any or all the measures set out in section 45(2) of the Act , including to (

c) prohibit public gatherings in a specified area of Saskatchewan. I am of the view that this presumption has not been rebutted in this case. [ 14 ] In the event I have erred in this determination, I will next turn to an analysis of the evidence before me and the applicable legislation. ii) Did the then Minister of Health, James Reiter, delegate his powers to make Public Health Orders under the Act to the Chief Medical Health Officer on March 13, 2020? If so, was this delegation effective on November 26, 2020?

[ 15 ] James Reiter testified that on March 13, 2020 he was the Minister of Health (MH) for the Province of Saskatchewan and that he had a phone conversation with then Deputy Minister of Health (DMH) Max Hendricks. During this conversation MH Reiter was advised by DMH Hendricks that there was a statutory requirement that a delegation of his powers to issue Public Health Orders to the Chief Medical Health Officer had to be in writing. To that end, DMH Hendricks send the following email to MH Reiter on March 13, 2020, at 1:36 p.m.: Subject: Delegation Delegation of Authority to Chief Medical Health Officer Pursuant to sections 23 and 23.1 of The

Interpretation Act, 1995, where an Act directs or empowers a Minister to do

an act or thing, the Deputy Minister or a person appointed to serve in the Ministry over which the Minister presides whom the Minister has authorized to carry out that act or thing may carry out that act or thing.

Section 45 of The Public Health Act, 1994 provides me with the authority to issue orders to address serious public health treats. [sic] In order to act in a timely manner to address the 2019-Novel Coronavirus in Saskatchewan, I hereby authorize the Chief Medical Health Officer to issue orders outlined in

section 45 that address 2019-Novel Coronavirus in Saskatchewan. Jim Reiter, Minister of Health (see Exhibit P-10) [ 16 ] I accept James Reiter’s testimony that he received and read the email he received from then DMH Max Hendricks and that he agreed with the delegation. To signify his agreement with the delegation, Mr. Reiter replied to Mr. Hendricks’ email at 1:41 p.m. Mr. Reiter forwarded the text of Mr. Hendricks’ 1:36 p.m. email back to Mr. Hendricks and in doing so double spaces the text regarding delegation and changes the font on his name and title.

I accept James Reiter’s testimony that he understood that by sending this email he was delegating authority to issue Public Health Orders to the Chief Medical Health Officer. He had no concerns with the procedure he used, other than noting the spelling error “treats” which should have been “threats”. He recalled that later that same day the CMHO put Public Health Orders in place which formed part of a press release. [ 17 ] James Reiter testified on cross-examination that he ceased to be the Minister of Health on November 20, 2020, when a cabinet shuffle occurred within the Government of Saskatchewan.

He also agreed on cross-examination that he could only delegate the powers he had to the CMHO. [ 18 ] The AG Sask submits that the above noted email exchange between then MH James Reiter and then DMH Max Hendricks constitutes a valid delegation within the meaning of

section 2 - 34(2) of the Legislation Act . [ 19 ] This submission requires a consideration of several acts . [ 20 ]

Section 2 - 34 of the Legislation Act reads as follows: Persons who may act for minister 2-34(1) If an enactment directs or empowers a minister of the Crown to do

an act or thing, or otherwise applies to the minister by the minister’s name of office, a reference in that enactment to the minister includes: (

a) another minister acting for the minister; (

b) if the office of the minister is vacant, a minister designated to act in the office; (

c) the successor in the office of the minister; and (

d) the minister’s deputy minister or a person acting as deputy minister.

(2) If an enactment directs or empowers a minister of the Crown to do

an act or thing, that act or thing may be done on the minister’s behalf by any person appointed to serve in the ministry over which the minister presides if: (

a) the minister has, in writing, authorized that person, by name or by office, to do the act or thing; or (

b) that person is appointed to serve in a capacity appropriate to the doing of the act or thing whether or not the person, or any other person, was authorized by the minister to do the act or thing.

(3) In this section, “ministry” means a ministry as defined in The Executive Government Administration Act 2-34(2) If an enactment directs or empowers a minister of the Crown to do

an act or thing, that act or thing may be done on the minister’s behalf by any person appointed to serve in the ministry over which the minister preside if: (

a) the minister, has in writing authorized that person, by name or by office, to do the act or thing; or (

b) that person is appointed to serve in a capacity appropriate to the doing of the act or thing whether or not the person, or any other person, was authorized by the minister to do the act or thing. [ 21 ]

Section 2 - 35 of the Legislation Act is also relevant: Application of

section 2-34 2-35(1) Unless an enactment expressly provides otherwise,

section 2- 34 applies to every act or thing that a minister may do pursuant to an enactment, whether it is administrative, legislative, judicial or otherwise and whether or not it involves the holding of an opinion or the reaching a conclusion by the minister.

(2) For the purpose of subsection (1), if the act or thing to be done involves the holding of an opinion or the reaching of a conclusion by the minister, that act or thing may be done by a person mentioned in 2-34 on the basis of that person’s opinion or conclusion.

(3) A minister may, in writing, restrict the authority of a person, by name or by office, to do the act or thing on behalf of the minister pursuant to subsection 2-34(2).

(4) Section 2-34 does not: (

a) authorize any person mentioned in clause 2-34(1)(

d) or subsection 2-34(2) to exercise any authority conferred on a minister to enact a regulation; or (

b) restricts a minister’s authority to do any act or thing that may be done by any person pursuant to

section 2-34.

(5) Section 2-34 applies whether or not the office of a minister is vacant. [ 22 ] The Electronic Information and Documents Act, 2000, SS 2000, c E-7.22 [ EIDA ] defines the phrase “in writing” as it appears in

section 2 - 34(2) (

a) of the Legislation Act : 9 A requirement pursuant to any law for a person to provide any information or document in writing to another person is satisfied if the person provides the information or document in an electronic form and the information or document: (

a) is accessible by the other person; and (

b) is capable of being retained by the other person so as to be usable for subsequent reference. [ 23 ] I am of the view that the testimony of James Reiter coupled with the email exchange between him as the then MH and then DMH Hendricks (Exhibit P-10) shows a clear intention on the part of the then Minister of Health to subdelegate his section 45(1) of the Act order-making authority to the Chief Medical Health Officer, Dr. Saqib Shahab on March 13, 2020.

[24] I am satisfied that this amounted to a delegation “in writing” within the meaning of

section 9 of the EIDA. I find that thedelegation by email was accessible to then ADM Hendricks and was capable of being retained so as to be usable for subsequentreference. The email exchange met the only formal requirement set in place by

section 2-34(2) of the Legislation Act, that must be inwriting, and authorized the Chief Medical Health Officer to make orders under

section 45 of the Act. [25] While the delegation by email of March 13, 2020 is not as formal as one might expect, it is perhaps understandable given itstiming. On March 11, 2020, the World Health Organization declared the COVID-19 outbreak a global pandemic. On March 18, 2020,the Saskatchewan Governor in Council declared a state of emergency throughout the Province of Saskatchewan to address the Covid-19Public Health Emergency (Order in Council 102/2020). [26] I am also of the view that the delegation by the then Minister of Health does not contravene s. 2-35 of the Legislation Act.

Section 2-35(1) expressly allows for the delegation of both “administrative” and “legislative” powers. In addition, the delegation of thepower to make PHO’s to the CMHO does not contravene

section 2-35(4)(a). This provision only precludes delegating the power tomake regulations, a term defined in s. 4-1 of the Legislation Act in a manner that is narrow and does not encompass an order, in particularthe PHO dated November 26, 2020. [27] Lastly, I am of the view that the March 13, 2020 email exchange between then DMH Max Hendricks and then MH James Reiterconstitutes a valid delegation within the meaning of

section 2-34 (2) of the Legislation Act. While James Reiter ceased to be the MH onNovember 20, 20202, I am of the view that this delegation remained in place after he ceased to be the MH. It continued in place with hissuccessor in the office of the MH (see 2-34(1)(

c) of the Legislation Act). As a result, I find that the Chief Medical Health Officer, Dr.Saqib Shahab had the authority to issue the PHO dated November 26, 2020 pursuant to section 45(1) of the Act. iii) Is the impugned PHO authorized by sections 38 and/or 45 of the Act? [28] Prior to examining the impugned PHO and sections 38 and 45 of Act, it is necessary to set out the general methodology this Courtshall be using when interpreting the PHA. I am of the view that a broad interpretive approach is necessary. I take this approach basedupon

section 2-10(2) of the Legislation Act which sets out that every Act and regulation is to be construed as remedial and is “to be giventhe fair, large and liberal

interpretation that best ensures the attainment of its objects.” I find this holds true for legislation, such as thePHA whose purpose has been determined to be “the protection of health and well-being of the people of Saskatchewan (see R vHinderager Holdings Ltd., 2022 SKPC 50). I find that the PHA should be interpreted generously rather than being subject to narrow ortechnical

interpretations that would frustrate the purposes and objects of the PHA (see Ontario (Ministry of Labour) v Hamilton (City)(2002), (ON CA), 58 OR (3d) 37 (Ont CA)). The Impugned PHO [29] On November 26, 2020, Dr, Saqib Shahab, Chief Medical Health Officer for the Province of Saskatchewan, signed the impugnedPHO. The PHO is comprised of a total of 7 pages. Page 1 and 2 of the PHO reads in part as follows: PUBLIC HEALTH ORDER PROVINCIAL ORDER November 26, 2020 (Under

Section 38 and Subsection 45(2) of The Public Health Act, 1994) WHEREAS: A. I, Dr. Saqib Shahab, an official with the Ministry of Health and the Chief Medical Health Officer for the Province of Saskatchewan, have been authorized by the Minister of Health to act under

section 45 of The PublicHealth Act, 1994;

B. The transmission of the infectious agent SARS-CoV-2, which has caused cases and outbreaks of a serious communicable disease known as COVID-19 among the population of the Province of Saskatchewan, is a serious health threat, as defined in The Public Health Act, 1994 ; C. A person infected with SARS-CoV-2 can infect other people with whom the infected person is in contact; D. The gathering of people in close contact with one another can promote the transmission of SARS-CoV-2 and increase the number of people who develop COVID-19; E. COVID-19 is a category 1 communicable disease; F. It is necessary to (

a) reduce the probability for transmission of SARS-CoV-2; and (

b) reduce the exposure to SARS-CoV-2, to decrease or eliminate the risk to health presented by COVID-19; G. I consider the following measures necessary to decrease or eliminate the risk to health presented by COVID-19; H. Effective 12:01 am on November 27, 2020, I rescind my November 18, 2020 Provincial Order and by virtue of the foregoing and under

section 38 and subsection 45(2) of The Public Health Act, 1994 ; This Order applies to all Individuals and businesses within the Province of Saskatchewan and City of Lloydminster 1. I hereby ORDER and DIRECT effective 12:01 a.m. on November 27, 2020: . . . (

c) Outdoor private and public gatherings over 30 people are prohibited. This

section does not apply to critical public services, allowable business services, events and activities to the extent that the guidelines applicable to those critical public services, allowable business services, events or activities found in the Re-Open Saskatchewan Plan as amended from time to time, on the Government of Saskatchewan website (Saskatchewan.ca) explicitly permits or requires an alternative gathering size. In such case, the gathering size explicitly permitted or required shall not be exceeded and specified physical distancing shall be maintained. This

section does not apply to events and activities to the extent that the guidelines applicable in the Re-Open Saskatchewan Plan, as amended from time to time, on the Government of Saskatchewan website (Saskatchewan.ca) explicitly permits or requires an alternative gathering size. In such case, the gathering size explicitly permitted or required shall not be exceeded, and specified physical distancing shall be maintained. . . . Page 7 of Dr. Shahab’s Public Health Order reads in part as follows: This order remains in effect until 12:01 a.m. on December 18 th , 2020 or until, in the opinion of the Chief Medical Health Officer, there is no longer a public threat, whichever shall first occur.

[ 30 ] The Applicant takes the position that the impugned PHO is invalid because it is not authorized by

section 38 and 45 of the Act . The AG Sask submits that the impugned PHO is authorized by either or both sections of the Act . I am of the view that it is sufficient if the impugned PHO is authorized by either section. Authorization by both sections is not required.

Section 38 PHA [ 31 ]

Section 38 of the Act reads in part as follows: Orders 38(1) A medical health officer may order a person to take or refrain from taking any action specified in the order that the medical health officer considers necessary to decrease or eliminate a risk to health presented by a communicable disease. [ 32 ]

Section 2 of the Act defines certain terms used in the Act including: (f.1) “chief medical health officer” means the person designated as the chief medical health officer pursuant to subsection 11(4); … (t.1) “medical health officer” means a public health officer who is designated as a medical health officer pursuant to subsection 11(1), and includes the chief medical health officer; [ 33 ] I am in agreement with the position advanced by the AG Sask that

section 38 creates a distinct order-making power which is conferred upon medical health officers. The impugned PHO was signed by Dr. Saqib Shahab in his capacity as Saskatchewan’s Chief Medical Health Officer. As the CMHO is by definition a medical health officer, he has the power to make orders under section 38(1) of the PHA. [ 34 ] I agree with the AG Sask’s analysis as set out in paragraphs 19 and 20 of its brief of law as follows:

Section 38 creates an order-making power distinct from that created by section 45(1). It is an order-making power that vests directly with medical health officers, of which Dr. Shahab is one.

Section 38 grants medical health officers a very broad order-making power: 38(1) A medical health officer may order a person to take or refrain from taking any action specified in the order that the medical health officer considers necessary to decrease or eliminate a risk to health presented by a communicable disease. (emphasis added) 20. The impugned PHO requires all persons in Saskatchewan to refrain from gathering outdoors in groups larger than 30. The impugned PHO explicitly states that Dr.

Shahab believed such a measure is “necessary to . . . decrease or eliminate the risk to health presented by COVID -19”, a noted communicable disease. For this these reasons, the Attorney General respectfully submits that the impugned PHO is intra vires s. 38 PHA. [ 35 ] The Applicant also argues under

section 38 that the impugned PHO is ultra vires because it is to be directed to a specific person rather than all persons in Saskatchewan. Such an argument is based on the use of singular language in

section 38 and related provisions such as section 40(1) which grants the right of appeal to “a person” who is the subject of an order pursuant to

section 38 to the Court of Queen’s Bench (now King’s Bench). [ 36 ] The use of singular language of “person” in sections 38 and 40 is not fatal.

Section 2 - 24 of The Legislation Act reads as follows: In an enactment, words in the singular include the plural and words in the plurals include the singular. [ 37 ] I cannot conclude that a

section 38 order “must be directed to a specific person” simply because it uses singular language. Such an interpretive approach is narrow and technical. I am of the view that

section 38 of PHA should be interpreted generously, such that it empowers medical health officers to create orders that apply to more than one person, as is the case in the impugned PHO.

[ 38 ]

Section 38 of the PHA empowers medical health officers such as CHMO Dr. Shahab to order a person or persons to refrain from doing anything that would increase a health risk presented by a communicable disease. I am of the view that the impugned PHO which required all persons in Saskatchewan to refrain from gathering outdoors in groups larger than 30 is intra vires under

section 38 of the Act .

Section 45 of the PHA [ 39 ]

Section 45 of the PHA reads in part as follows: 45(1) The minister may make an order described in subsection (2) if the minister believes, on reasonable grounds, that: (

a) a serious public health threat exists in Saskatchewan; and (

b) the requirements set out in the order are necessary to decrease or eliminate the serious public health threat.

(2) An order pursuant to this

section may: . . . (

c) prohibit public gatherings in a specified area of Saskatchewan; . . .

(2.2) Subject to subsection (2.3), with the approval of the chief medical health officer, a medical health officer may make any order described in subsection (2) if: (

a) the medical health officer believes, on reasonable grounds, that: (

i) a serious public health threat exists in Saskatchewan; and (ii) the requirements set out in the order are necessary to decrease or eliminate the serious public health threat; and (

b) in the opinion of the medical health officer, there will be insufficient time for the minister to make an order pursuant to this

section because of the nature of the serious public health threat.

(2.3) An order made by a medical health officer pursuant to subsection (2.2): (

a) must specify the time at which it is made; and (

b) terminates 48 hours after it is made unless the minister makes an order extending its effect. [ 40 ] I am in agreement with the following positions advanced by the AG Sask: (i) section 45(1) creates a distinct order-making power which is conferred on the Minister of Health. (ii) section 45(2.2) creates another distinct order-making power which is conferred on medical health officers. [ 41 ] I have previously found that the Minister of Health delegated his order-making power under

section 45 to the CMHO, Dr. Shahab. [ 42 ] Section 45(2) sets out the various measures that may be taken pursuant to an order under section 45(1). Of importance to this case is subsection 45(2) (c): 45(2) An order pursuant to this

section may: … (

c) prohibit public gatherings in a specified area in Saskatchewan;

[ 43 ] I am in agreement with the position taken by the AG Sask that the power to “prohibit public gatherings in a specified area in Saskatchewan” includes the ability to prohibit “public outdoor gatherings over 30 people” when applying a generous purpose advancing method of

interpretation to the PHA. [ 44 ] First of all, I am of the view that the power to “prohibit public gatherings” reasonably implies the power to prohibit public gatherings of different sizes. [ 45 ] Secondly, I am of the view that the power to prohibit public gatherings in “a specified area of Saskatchewan” reasonably implies the power to specify that public gatherings are prohibited throughout the entire province. [ 46 ] Lastly, while the impugned PHO refers to prohibiting both “public” and “private” gatherings and section 45(2) (

c) only mentions prohibiting “public” gatherings I am of view that PHO is vires in this case as the Court is clearly dealing with a public gathering (near the Legislature building) which section 45(2) (

c) contemplates. I will leave it to another Court on another day to consider the vires of “private” gatherings. iv) What is the effect, if any, of subsection 45(2.2) of the Act ? [ 47 ] The Applicant also urges the Court to find the impugned PHO dated November 26, 2020, was not valid on December 12, 2020 because according to section 45(2.3) of the Act it terminates 48 hours after it is made unless the minister makes an order extending its effect. It is a fact that in this case the minister did not make an order extending the impugned PHO.

However, this argument assumes that the impugned PHO was issued under section 45(2.2) of the PHA. I am of the view that the impugned PHO was issued pursuant to sections 38 and 45(1) , not pursuant to section 45 (2.2) of the Act . The expiration clause set out in subsection 45(2.3) does not apply to the impugned PHO. I find that the impugned PHO was valid and effective from 12:01 a.m., November 27, 2020, until 12:01 a.m., December 18, 2020. In this case, I find the impugned PHO was valid and in effect on December 12, 2020. [ 48 ] For the reasons set out above I find that the impugned PHO is intra vires under both

section 38 and 45 of the Act . CONCLUSION [ 49 ] I have determined: (

i) The presumption of regularity applies to the sub delegation from the then Minister of Health to the Chief Medical Health Officer on March 13, 2020, of his order-making authority, it has not been rebutted; (ii) In the alternative, the then Minister of Health, James Reiter made a valid sub delegation of his order-making authority to the Chief Medical Health Officer, Dr. Saqib Shahab on March 13, 2020, pursuant to section 45(1) of the Act . When James Reiter ceased to be the Minister of Health on November 20, 2020 his valid sub delegation of order-making authority to Dr.

Shahab continued in place with his successor; (ii) Chief Medical Health Officer, Dr. Saqib Shahab issued a valid PHO on November 26, 2020, pursuant to sections 38 and 45(1) of the PHA. The PHO was effective from 12:01 a.m., November 27, 2020, until 12:01 a.m., December 18, 2020. Hence the PHO was valid and effective on December 12, 2020, being the date of the offence before the Court; (iii) The PHO dated November 26, 2020, was not made pursuant to section 45(2.2) of the Act . The expiration clause set out in section 45(2.3) does not apply to the PHO.

[ 50 ] The Application before this Court as a whole is dismissed. [ 51 ] I am grateful for the assistance of all counsel on this matter. ___________________________ M. Hinds, J