His Majesty the King - v. -, 2023 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 46 Date: August 21, 2023 Ticket No.: 85360277 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - Marjaleena Repo Appearing: B.L. Rodgers and N.S. Wernikowski For the Crown Marjaleena Repo Self-Represented Accused JUDGMENT Q.D. AGNEW , J [ 1 ] The defendant is charged that on April 24, 2021, she attended a public gathering in Saskatoon where there were more than 10 persons present, contrary to the Public Health Order [PHO] in effect at that time. [ 2 ] Ms.

Repo acknowledges that: (1) she attended the gathering, which was held outdoors at the Vimy Memorial in Saskatoon on April 24, 2021; (2) there was in effect at the time a PHO which, inter alia , restricted outdoor public gatherings to no more than 10 persons; (3) there were at the gathering 100 people or more;

(4) she considered her participation to be

an act of civil disobedience, performed in the knowledge that it was contrary to the PHO. [ 3 ] As a result of her attendance at the gathering, she received the ticket which is the subject of this judgment. I gave my decision and reasons in this case verbally on July 7, 2023, and indicated that I would provide a written judgment of the same substance as those reasons in due course. This is that judgment. [ 4 ] Ms.

Repo had given notice of her intention to challenge the PHO ticket on the basis of violations of her rights pursuant to the Canadian Charter of Rights and Freedoms [ Charter ], the Canadian Bill of Rights , SC 1960, c 44 [ CBR ] and The Saskatchewan Bill of Rights [ SKBR ], the latter of which is found in sections 4 - 8 of The Saskatchewan Human Rights Code, 2018 , SS 2018, c S-24.2 [ HRC ].

She subsequently advised that she was not pursuing her allegations of violations of either the Charter or the CBR but was proceeding solely under the SKBR . [ 5 ] The defendant’s position is that the PHO violated her rights under sections 4 (freedom of conscience), 5 (freedom of expression) and 6 (peaceable assembly) of the SKBR .

For reference, those sections read as follows: 4 Every person and every class of persons has the right to freedom of conscience, opinion and belief and freedom of religious association, teaching, practice and worship. 5 Every person and every class of persons has the right to freedom of expression through all means of communication, including the arts, speech, the press or radio, television or any other broadcasting device. 6 Every person and every class of persons has the right to peaceable assembly with others and to form with others associations of any character under the law. [ 6 ] Ms.

Repo also argued that she was the victim of selective enforcement of the law by the Saskatoon Police Service when the ticket was issued to her. [ 7 ] I have previously ruled on the availability of remedies under the SKBR in the context of PHO tickets and concluded that they were not available: see R v Drebit et al , 2023 SKPC 8 at para 5 [ Drebit ]. That decision stated (para. 5): [5] However, the Code is, as its name indicates, a code: a complete set of laws for those matters which it governs.

A person who believes that their rights under the Code have been violated must bring the matter to the Saskatchewan Human Rights Commission, which has the power to investigate and bring a complaint before the Court of King’s Bench. That Court, if it concludes that a breach has occurred, has powers as set out in s. 39. [ 8 ] Drebit was subsequently adopted by my brother Judge Hinds in R v Knoll , 2023 SKPC 29 [ Knoll ] pursuant to the Supreme Court of Canada’s judgment in R v Sullivan , 2022 SCC 19 , 472 DLR (4th) 521 [ Sullivan ].

In Sullivan , the Supreme Court held (para. 75) that: [75] 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. [ 9 ] None of the three criteria set out by the Supreme Court are present in the matter before me. [ 10 ] In R v Wong et al , 2023 SKPC 7 at para 56 , I noted the possibility of new arguments being brought forward while still being in accordance with Sullivan . Ms. Repo did not bring forward any new arguments. Accordingly, I consider myself bound by Sullivan to follow my decision in Drebit and hold that her argument pursuant to the SKBR cannot succeed. [ 11 ] Mr.

Wernikowski, for the Crown, brought to my attention during the course of this matter case law which suggests that s. 52 of the HRC may afford a defendant the ability to use breaches of the SKBR as a defence, an argument not made by Ms. Repo. That

section reads as follows: 52 Every law of Saskatchewan is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act unless: (

a) that law falls within an exemption provided by this Act; or (

b) that law is expressly declared by

an Act to operate notwithstanding this Act. [ 12 ] The cases which suggest a possible remedy via s. 52 are: Forsberg v Saskatchewan , 2017 SKQB 326 ; R v Whatcott , 2002 SKQB 399 , [2003] 4 WWR 149; and Tranchemontagne v Ontario (Director, Disability Support Program) , 2006 SCC 14 , [2006] 1 SCR 513. It may be that there is a path via these cases, or others, which would overcome Drebit and Knoll on the basis that, for example, any court has the power to refuse to enforce laws which violate the HRC . If such an argument plausibly exists, it should be fully researched

and argued, and not by the trial judge. Alternately, it may be that the process set out in the HRC would be held to be appropriate in anyevent: someone in the defendant’s position should apply to the Saskatchewan Human Rights Commission, which could bring the matterbefore the Court of King’s Bench for relief such as, for example, an order in the nature of certiorari to quash the ticket or all suchtickets. It might be that this would be found to be more in keeping with the Legislature’s decision in the HRC to keep HRC issues beforethe Court of King’s Bench rather than in Provincial Court.

Again, this is a matter which, if it is to be put forward, should be fullyresearched and argued, and not by the trial judge. [13] Accordingly, while I acknowledge, without deciding, the possibility that the SKBR might offer a defence, I am nonethelessbound to follow precedent and hold that the SKBR does not afford Ms. Repo a defence in this matter. [14] In the event that I am incorrect in this, I will consider Ms. Repo’s substantive arguments. In essence, Ms.

Repo argues thatthe rights provided in the SKBR and which are quoted above are unrestricted; that is, they mean exactly what they say and, as there is norestriction stated in the SKBR, each specified right has no restrictions or qualifications on it. In this regard, the SKBR is different fromthe Charter, which states in its very first section, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms setout in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”(emphasis added).

The Charter, therefore, explicitly states that there are limitations to the rights specified in it. The SKBR, having nosuch language, has no such limitations, in Ms. Repo’s view. [15] In support of this proposition, she quoted excerpts from two Saskatchewan cases, which I have had some success in locating. The first is R v Naish, (SK KB), [1950] 1 WWR 987 [Naish], a decision of Police Magistrate Wakeling of theSaskatchewan Police Court. The accused was charged with distributing handbills contrary to a city bylaw. He was a Jehovah’s Witness,and the pamphlets he was distributing were clearly of a religious nature.

He argued that the bylaw infringed upon his freedom ofreligion as set out in s. 3 of The Saskatchewan Bill of Rights Act, 1947, SS 1947, c 35. That

section read: 3. Every person and every class of persons shall enjoy the right to freedom of conscience, opinion and belief, and freedom of religiousassociation, teaching, practice and worship. [16] Other than a minor and inconsequential difference, the wording is identical to the current s. 4 of the SKBR. [17] In the case before me, Ms.

Repo quoted the following extract from the decision in support of her proposition that the rightsunder the SKBR are unrestricted (para. 26): [26] . . . the defendant is consequently entitled to practise his religious beliefs as a member of Jehovah's Witnesses by distributingreligious handbills to people on the public streets of the City of Saskatoon, provided always that he does so in an orderly, quiet andpeaceful manner and the contents of such handbills do not contain any unlawful material. [18] Ms. Repo also quoted from R v Vogelgesang, a 1957 decision.

I have not been able to locate the full decision, but only asummary: 1957 CCS 374 [Vogelgesang]. It is a decision from the Saskatchewan Magistrate’s Court in Saskatoon. It was again asituation involving distribution of handbills, but this time involving freedom of expression in the context of a union/management dispute. At the time, s. 4 of The Saskatchewan Bill of Rights Act, RSS 1953, c 345 read: 4.

Every person and every class of persons shall, under the law enjoy the right to freedom of expression through all means ofcommunication, including speech, the press, radio and the arts. [19] Once again, the wording is very similar to the current freedom of expression clause, s. 5 of the SKBR, with one importantexception to which I will refer later. [20] The

summary reports that the charge was dismissed, on the basis that: The defendant's action of distributing handbills was not unlawful so long as he did so in an orderly and peaceful manner, providing thatthe contents of the handbills were not unlawful. [21] Once again, this is the portion quoted by Ms. Repo in support of her contention that rights under the SKBR are unrestricted. [22] Unfortunately, Vogelgesang is of no assistance to Ms. Repo’s position, as the freedom of expression clause at the timeexplicitly included the limitation “under the law”.

The right therefore, by its own wording, could be restricted by laws whichcontradicted it. It is therefore not relevant to the argument which Ms. Repo is making. [23] Leaving aside Vogelgesang, does her other case, Naish, assist her position?

The quoted portion (see para. 17, above)expressly states that the right in question is limited in a way not found in the wording of the right: the accused had the right, due to hisright to freedom of expression, to distribute handbills “provided always that he does so in an orderly, quiet and peaceful manner and thecontents of such handbills do not contain any unlawful material.” These words of restriction are found nowhere in the right itself, butthese are words quoted by Ms.

Repo in support of her assertion that freedom of religion was recognized in that case as being unrestricted. [24] In the course of argument, while discussing these cases, I asked Ms. Repo if she considered the rights in the SKBR to beabsolute and unrestricted. She stated that she did. This was hardly a surprise, as it was the power of restriction in s. 1 of the Charter thatwas her main objection to pursuing a remedy via the Charter, and her belief in the unrestricted nature of rights under the SKBR thatcaused her to proceed under that enactment instead.

I pointed out to her the words of limitation in the quotes she had cited, as notedabove, and asked if she agreed with those comments. She responded that she did, that the rights had to be restricted and that someoneoperating under them could not break the law – could not, for example, commit a crime.

[ 25 ] Her argument to that point had been that the restrictions placed on her by law - that is, by the Legislature and those operating under its authority - were not valid if they conflicted with the rights enumerated in the SKBR . The quotations supplied by her from Naish and (less relevantly) Vogelgesang say the opposite, and Ms. Repo agreed that the rights in the SKBR have to be exercised in accordance with the law. [ 26 ] Of course, Ms. Repo is in essence charged with exercising her rights under the SKBR in violation of the law. [ 27 ] Ms. Repo’s position is, therefore, logically incoherent.

On the one hand, she says that laws are subject to the SKBR ; on the other, that the SKBR is subject to the law. I am unable to give effect to Ms. Repo’s position, because her position is contradictory.

In making her way out of this contradiction, she acknowledges that her rights under the SKBR can only be exercised in accordance with the law, which she agrees she deliberately violated in attending this gathering - thus, in essence, conceding that her defence has no merit. [ 28 ] I make no comment as to which of her contradictory positions is correct, or if there is a more nuanced position that might be successful.

The onus is on her to show that her rights have been violated by the PHO, and she has failed to do so. [ 29 ] In addition to the Court’s statement in Naish , it is clear that restrictions exist and have always existed on these rights, regardless of lack of explicit wording. No rights are unrestricted. Perhaps the best-known illustration of this comes from the distinguished American jurist Oliver Wendell Holmes.

In 1919, while on the United States Supreme Court, he penned the decision in US v Schenck , 249 US 47 (1919) [ Schenck ], a decision involving the American right to freedom of speech contained in the First Amendment to the Constitution of the United States of America: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [ 30 ] On the face of it, “Congress shall make no law . . . abridging the freedom of speech. . .” is exactly the type of unrestricted right that Ms.

Repo refers to. Justice Holmes, however, famously stated in Schenck that, notwithstanding the wording of the First Amendment (p. 52): “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” [ 31 ] Another well-known phrase, again illustrating the point, is that “one person’s right to swing their arm ends where another person’s nose begins”. The earliest use I have found of this example is in the June, 1919 edition of the Harvard Law Review (Vol. 32, No. 8, p. 932 at 957) in an

article entitled, “Freedom of Speech in Wartime”, which again discussed the limitations on what appears to be an unrestricted right to free speech in the American First Amendment. [ 32 ] These are simply examples illustrating that there is a long-held understanding that rights which on their face are unrestricted are, in fact, restricted. [ 33 ] Clearly, rights are and must be limited. A person’s right to freedom of expression does not entitle them to press a megaphone to another’s ear and yell into it.

Someone’s freedom of religion does not entitle them to commit human sacrifice, regardless of how sincere their belief that their religion requires it. Even though the SKBR does not express restrictions on the rights specified in it, those restrictions exist and have always been recognized to exist. [ 34 ] What are those restrictions? It is not necessary for me to decide in this matter. The defendant’s argument is that any restriction whatsoever is a violation of her right, not that these specific restrictions fall outside the penumbra of permissible restrictions. Her argument has failed.

The defendant did not put before me any argument as to where or how to draw the line between permissible and impermissible restrictions. Given Sullivan , if I make a determination of that issue, other judges of this Court may be obliged to follow it. I do not think it appropriate to determine how to decide permissible versus impermissible restrictions on rights in the SKBR without full argument, which I have not had the benefit of. I do not need to decide where that line is; I accordingly decline to do so. [ 35 ] Separate from her argument under the SKBR, Ms.

Repo argues that she is the victim of unequal enforcement by the Saskatoon Police Service. She alleges that a number of public protests or gatherings occurred, presumably around the same time as the one at which she was ticketed, which did not attract the same police presence as did the one she was at, and that the persons at those gatherings were not ticketed. Unfortunately, there are several problems with her argument. [ 36 ] The first, and most obviously fatal, is that she has simply not provided admissible evidence on which I could conclude that her allegation of uneven enforcement was correct.

She said that there were various other rallies which involved hundreds and perhaps thousands of people, none of whom were ticketed. Unfortunately, her knowledge of such events is almost entirely hearsay. Although she apparently has some personal knowledge of some such events, she declined to give details. Rather, she sought to introduce news reports of those other gatherings and stated that she was “aware that they were taking place”, such gatherings were “reported on”, that “people [she] knew . . . went to other demonstrations” and were not ticketed, and that such facts were “just well-known”.

All of those statements are inadmissible - there is no way to check their accuracy, or the reliability of the persons who told those things to Ms. Repo. They may all be true, they may all be inaccurate, there may be a mixture: I have simply no way of knowing. [ 37 ] Furthermore, the vagueness of the details which Ms. Repo was herself willing or able to provide made that evidence of no assistance to her position. She stated that she had seen gatherings at which people were not ticketed.

She provided no information as to when those gatherings took place - a critical piece of information, given that the size restrictions for gatherings varied at different times during the pandemic. She did not give any evidence in support of her assertion that no tickets were issued at such gatherings: it would seem that, unless she was present throughout and was able to observe all of the participants, it would be difficult for her to know with certainty that no tickets were issued. The same difficulty exists with respect to her assertions of police presence, or lack thereof, at such gatherings.

Although I accept the sincerity of her belief in her allegations, she has not provided me with evidence on which I can join her in that belief. [ 38 ] In addition to both of the above difficulties, there are two more problems related to police discretion and the exercise of charging decisions.

[ 39 ] The police have, as a matter of law, a certain degree of discretion as to charging decisions and allocation of police resources: see, for example, Ochapowace First Nation (Indian Band No. 71) v. Canada (Attorney General) , 2007 FC 920 , the affirming decision of Ochapowace First Nation (Indian Band No. 71) v. Canada (Attorney General) , 2009 FCA 124 , 389 NR 87 , and the very helpful review of case law contained in those two decisions.

I have no evidence as to what charging decisions were made in the case before me, or how, and accordingly no evidence which would support overturning the deference which the law gives to the exercise of police discretion. To be clear, the power to do so exists in appropriate cases; but it requires evidence to show that a particular case is an appropriate one, and there is no such evidence before me. [ 40 ] Furthermore, there is no legal defence of, “I broke the law, but I should not be punished unless everyone who broke the law is punished”.

Should any authority for this proposition be needed, it can be found in R v Armstrong , 2012 BCCA 242 , 260 CRR (2d) 196 . [ 41 ] As a result, I find that the Crown’s case has been made out, the defendant’s defences are not valid, and she is therefore guilty of the ticket offence as charged. ______________________ Q.D. Agnew, J