His Majesty the King - v. -, 2023 SKPC 7

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 7 Date: January 17, 2023 Information: 991187714 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - Maylene Wong, Darrell Mills, Mark Friesen, Jonathon Wipf, Jasmin Grendel, Richard Wintringham, and Tamara Lavoie Appearing: B.L. Rodgers, K.M. Roy and N. S. Wernikowski For the Crown E.F. Anderson and C. Murphy For the Accused Tamara Lavoie Self-Represented JUDGMENT Q. D.

AGNEW , J [ 1 ] On December 19, 2020, a rally was held at the Vimy Memorial in Kiwanis Park, in Saskatoon. Advertising for the rally had billed it as a “Freedom Rally”. This rally occurred in the course of the COVID-19 pandemic, during which time various public health measures were put in place to attempt to contain the epidemic. One of those measures was contained in a Public Health Order [PHO] made December 14, 2020, by Dr. Saqib Shahab, the Chief Medical Officer for the Province of Saskatchewan. That PHO included a provision prohibiting outdoor gatherings of more than 10 people.

It is that PHO which the defendants are charged with violating. [ 2 ] Throughout the course of these reasons, I will refer to “the defendants” as meaning all named defendants except Tamara Lavoie. Ms. Lavoie discharged her lawyer several months ago and chose to represent herself. She also abandoned in writing any application on her behalf under the Canadian Charter of Rights and Freedoms [ Charter ]. She did not appear at the trial, nor did anyone appear on her behalf. The trial accordingly proceeded ex parte against her, and at the conclusion of the evidence I found her guilty and

sentenced her. This judgment is accordingly not a decision with respect to her guilt, that having been already decided. [3] The evidence against the defendants came from two primary sources. The first was Constable Mitchell, a police officer withthe Saskatoon Police Service [SPS]. She observed the rally via SPS video. The second was a video shot and narrated by Ms. Lavoie andstreamed live by her on Facebook. Cst. Mitchell confirmed that Ms. Lavoie’s video was consistent with the live SPS video Cst. Mitchellobserved during the rally. [4] The various defendants were identified by Cst. Mitchell from Ms.

Lavoie’s video. Cst. Mitchell also used driver’s licenceinformation from Saskatchewan Government Insurance [SGI] to identify them. That information consisted of each person’s name,photograph and address. The defendants have challenged the admissibility of this evidence under s. 8 of the Charter. It is clear that theSGI information was crucial to Cst. Mitchell’s identification of all of the defendants save for Mr. Friesen, who I find Cst.

Mitchell wouldhave been able to identify in any event from his previous public appearances, including his political activities. [5] I am satisfied that the video and the evidence of Cst. Mitchell clearly establish the presence of each of the defendants at therally, and the fact that there were substantially more than 10 persons present. One suggestion in the evidence was that there wereapproximately 200 persons present; while I do not find that number to be necessarily accurate, it is certainly plausible based on thevideo.

It would be inconceivable for any participant to suggest that they thought the number was 10 or less, and in fact the defendantsdid not attempt to make that argument. [6] The defendants raised Charter issues challenging, inter alia, the admissibility of evidence. Accordingly, the trial proceededas a blended trial/voir dire, with all of the Crown’s evidence going in on the voir dire, to be applied to the trial as I find it admissible.

Defence called no evidence on the voir dire or the trial, and argument proceeded on all voir dire and trial issues. [7] The issues in this matter are: (1) whether the use of the SGI database to identify the defendants constitutes an unreasonable search contrary to s. 8 of the Charter; (2) whether the provisions of the legislation and the PHO are unconstitutionally vague; (3) whether the regulations which allowed for the PHO are ultra vires; (4) whether or not the PHO was authorized by its governing legislation.

Defence also raised another issue in argument related to vagueness but separate from the constitutional argument; I dismissed thatargument summarily from the bench with oral reasons, and accordingly it is not addressed here.

Section 8 [8] The defendants have applied pursuant to s. 24(2) of the Charter for an order excluding evidence, on the basis that their rightsunder s. 8 of the Charter were violated by the police in the course of the investigation of the allegations before me. Specifically, certainof the defendants were identified by police by way of searches of an SGI database containing, among other information, their names andphotographs. The evidence on the combined trial and voir dire convinces me that for all defendants except Mr.

Friesen, the SGIinformation was crucial to their identification by police. [9] Certain defendants were mentioned by name in the video, when being introduced as speakers at the event. This is of coursehearsay, and no argument was made before me as to why it would be admissible. Furthermore, at least one defendant was introducedonly by their first name, which is obviously even less helpful. [10] The police also used public-access social media, specifically Facebook, to learn the identities of certain defendants. Thoseidentities were then confirmed via the SGI database.

I am not prepared to give any weight to the Facebook information. I am not certainof its admissibility, a question which was not argued before me, but in any event, I have no information as to the reliability of thatinformation. When a Facebook profile is viewed, what basis is there for believing that the profile does in fact belong to a person withthat name? If there is a photograph purporting to be of the person, what basis is there for believing that the photograph is in fact of thatperson?

I do not believe that these are subjects to which judicial notice would apply, and no evidence was provided to me on thesepoints. Accordingly, while the police certainly may use Facebook to further their investigations, the Facebook information referred tobefore me is of no evidentiary value. [11] With respect to Mr. Wintringham, he was present in the courtroom.

The trier of fact is entitled to draw its own conclusions asto identity by comparing video to the person before it: R v Nikolovski, (SCC), [1996] 3 SCR 1197; R v John, 2021SKCA 83 at paras 23 - 25, 405 CCC (3d) 184; R v Delorme, 2017 SKCA 3 at paras. 37 - 41. I am satisfied that the quality of the video,when showing Mr. Wintringham, was sufficient for me to compare him with the individual in the courtroom. Although the video wasoften unstable and cut out, there were many moments of significant picture clarity. In the courtroom, Mr.

Wintringham wasapproximately 20 feet, or about seven meters, from me, face on to me, for a very significant amount of time. There is no doubt in mymind but that he is the person identified by police. [12] However, the evidence is also clear that police used the SGI information to either find or confirm his identity prior to issuinghim a ticket.

I find on the evidence that the SGI information with respect to him was crucial to him being ticketed and thus appearing asa defendant before me. [13] All defendants were identified by Constable Mitchell and, subject to the Charter challenge, I am satisfied that the evidenceestablishes beyond a reasonable doubt that all were present at the event which is the subject of these charges. Indeed, defence neveractively contested this point, and there was no cross-examination of Constable Mitchell on it.

[14] Mr. Friesen’s identification was not only via SGI but also because of previous knowledge of him as something of a publicfigure, through news coverage, his election campaign, etc. I am satisfied that, even were I to exclude the SGI identification informationfrom the trial, Mr. Friesen’s identification is still established. Accordingly, the s. 8 application to exclude evidence is irrelevant to him. [15] The first question which must be addressed on a s. 8 challenge is whether or not the applicants had a reasonable expectation ofprivacy in the material searched. As noted in R v Reeves, 2018 SCC 56 at para 12, [2018] 3 SCR 531: [12]

Section 8 of the Charter is only engaged if the claimant has a reasonable expectation of privacy in the place or item that is inspectedor taken by the state (R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 34 and 36). To determine whether the claimant has areasonable expectation of privacy, courts examine "the totality of the circumstances" (R. v.

Edwards, (SCC), [1996] 1S.C.R. 128, at paras. 31 and 45(5)). [16] The Saskatchewan Court of Appeal recently specified the test for whether or not a reasonable expectation of privacy exists inR v Major, 2022 SKCA 80 at paras 38 and 39 [Major]: [38] The analysis of an alleged s. 8 breach starts with an examination of whether the accused had a reasonable expectation of privacy inthe subject matter of the search, assessed within the totality of the circumstances. A person's expectation of privacy in the subject matterof a search must be subjectively held and objectively reasonable.

If the claimant fails to establish that a reasonable expectation of privacyexisted at the time of the search, there was no search or seizure within the meaning of s. 8: see R v Spencer, 2014 SCC 43 at paras 16-17,[2014] 2 SCR 212 [Spencer], and R v Mills, 2019 SCC 22 at paras 12-13, [2019] 2 SCR 320. [39] The factors to consider when analyzing whether a reasonable expectation of privacy existed were described in Spencer as follows: [18] The wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can begrouped under four main headings for analytical convenience: (1) the subject matter of the alleged search; (2) the claimant's interest inthe subject matter; (3) the claimant's subjective expectation of privacy in the subject matter; and (4) whether this subjective expectationof privacy was objectively reasonable, having regard to the totality of the circumstances: Tessling [2004 SCC 67], at para. 32; R. v.Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 27; R. v.

Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 40. However, this is not apurely factual inquiry. The reasonable expectation of privacy standard is normative rather than simply descriptive: Tessling, at para. 42.Thus, while the analysis is sensitive to the factual context, it is inevitably "laden with value judgments which are made from theindependent perspective of the reasonable and informed person who is concerned about the long-term consequences of governmentaction for the protection of privacy": Patrick, at para. 14; see also R. v.

Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, andWard [2012 ONCA 660], at paras. 81-85. [17] In this instance, the evidence is clear that the police used the SGI database to connect the defendants’ video appearances withtheir photographs and names. The police also obtained from the SGI database the then-current addresses of at least some of thedefendants.

It is this information - name, address and photograph - for which I have to determine whether the defendants had areasonable expectation of privacy - that is, that SGI would not disclose it for police to use in any investigations. [18] As noted in the quoted portion of Major, the expectation of privacy must first be subjectively held. That is, if an accused didnot have that expectation, then no s. 8 breach can be established. The defendants’ application in the present matter immediately founderson that rock: I have no evidence from any of the accused that they expected that this information would be private.

The applicationcannot, therefore, succeed. [19] In the event that I am wrong, either on the evidence or the law, I will proceed as if that precondition had been met. I willtherefore consider whether or not such an expectation of privacy would be reasonable. “Reasonableness” is based on “the independentperspective of the reasonable and informed person who is concerned about the long-term consequences of government action for theprotection of privacy” (R v Patrick, 2009 SCC 17 para 14, [2009] 1 SCR 579 [Patrick]).

SGI’s Privacy Statement [20] Since October 25, 2017, SGI’s website has included a document entitled “Privacy statement”. It is and has always beenpublicly available at www.sgi.sk.ca/privacy. Under the large-font heading “Disclosing your information” is a bolded sub-heading:“Without your consent, we can share your information:”, followed by a list of bullet points outlining a variety of circumstances. Thethird of those bullet points reads, “With law enforcement for enforcing the laws or carrying out a lawful investigation.” The Traffic Safety Act [21]

Section 44 of The Traffic Safety Act, SS 2004, c T-18.1 [TSA] is found within Division 2 of the TSA, which is entitled“Applications for Driver’s Licence”.

Section 44 reads: 44 The administrator shall not provide access to or a copy of any photograph of a person taken for the purposes of this Part to anyperson other than:

(

a) the person shown in the photograph, for the purpose of issuing a replacement photo identification card or a replacement driver’s licence; (

b) a peace officer , judge or justice of the peace acting in the course of his or her duties ; or (

c) a prescribed person or class of persons in any prescribed circumstances. (emphasis added) [ 22 ]

Section 3 of the TSA designates SGI as the administrator. Constable Mitchell, the officer who used the SGI database to identify the defendants, testified that she is a member of the Saskatoon Police Service. She testified that she was assigned the duty of observing this rally and attempting to identify participants for the purpose of charging them. As such, I am satisfied that she was a peace officer, and that in accessing the SGI database she was acting in the course of her duties. Indeed, neither of these facts were argued or questioned by the defendants. The Freedom of Information and Protection of Privacy Act [ 23 ]

Section 29 of The Freedom of Information and Protection of Privacy Act , SS 1990-91, c F-22.01 [ FIPPA ] reads in part as follows: 29(1) No government institution shall disclose personal information in its possession or under its control without the consent, given in the prescribed manner, of the individual to whom the information relates except in accordance with this

section or

section 30.

(2) Subject to any other Act or regulation, personal information in the possession or under the control of a government institution may be disclosed: (

g) to a prescribed law enforcement agency or a prescribed investigative body: (

i) on the request of the law enforcement agency or investigative body; (ii) for the purpose of enforcing a law of Canada or a province or territory or carrying out a lawful investigation; and (iii) if any prescribed requirements are met. (emphasis added) [ 24 ] “Government institution” is defined in s. 2(1)(d)(ii) to mean, “any prescribed board, commission, Crown corporation or other body . . .”

Section 3(

a) of The Freedom of Information and Protection of Privacy Regulations , RRS F-22.01 Reg 1 [ FIPPA Regulation ], states: 3 For the purposes of subclause 2(1) (d)(ii) of the Act : (

a) the bodies set out in

Part I of the Appendix; and (

b) subsidiaries of government institutions that are Crown corporations; are prescribed as government institutions. The Appendix,

Part I, includes Saskatchewan Government Insurance. [ 25 ] Subsection 2(

g) of FIPPA reads, ““personal information” means personal information within the meaning of

section 24".

Section 24 reads in part: 24(1) Subject to subsections (1.1) and (2), “personal information” means personal information about an identifiable individual that is recorded in any form, and includes: (

e) the home or business address, home or business telephone number or

fingerprints of the individual; (

k) the name of the individual where: (

i) it appears with other personal information that relates to the individual While it is questionable whether or not the defendants’ photographs constitute personal information within the meaning of FIPPA, it isclear that their names and addresses are personal information for the purposes of that Act. [26]

Section 14 of the FIPPA Regulations reads in part: 14 For the purposes of clause 29(2)(

g) of the Act, the following law enforcement agencies and investigative bodies are prescribed as law enforcement agencies or investigative bodies to which personal information may be disclosed: (

b) a police service or regional police service within the meaning of The Police Act, 1990. I am satisfied that the Saskatoon Police Service is a police service within the meaning of The Police Act, 1990, SS 1990-91, c P-15.01.

Inote that there are no “prescribed requirements” as referred to in s. 29(2)(g)(iii). [27] Accordingly, under FIPPA, SGI is and was at all applicable times a government institution which was entitled to releasepersonal information to the Saskatoon Police Service, which is and was at all applicable times a police service as defined. [28] The defendants, as all persons, are presumed to know the law.

They are accordingly presumed to have known that TSAauthorized SGI to release their photographs to the police to learn their identities for the purpose of investigating them for breaching thePublic Health Order ostensibly in effect at the time.

They further are presumed to know that FIPPA authorized SGI to release theirnames and addresses to the police for the same purpose. [29] Given that the law specifically authorizes release of their names, photographs and addresses by SGI to the police for thepurpose of investigating apparent breaches of the law, it is difficult to see how the defendants could have had a reasonable expectationthat SGI would not do so. Such an expectation could perhaps arise if SGI had made a commitment to the defendants that,notwithstanding its power to do so, it would not release such information.

Not only is there no evidence that it made any suchcommitment, the evidence is exactly the opposite: SGI explicitly stated in its privacy policy that it might well do so. [30] I am unable to find that "the reasonable and informed person who is concerned about the long-term consequences ofgovernment action for the protection of privacy" (per Patrick) would find it reasonable for the defendants to believe that SGI would notprovide this information to police, precisely as SGI in fact did. [31] Although it is not necessary for me to address in making this decision, I also note that none of the defendants were forced toprovide this information to SGI.

Each of the defendants’ information is, according to the evidence, in SGI’s hands because they appliedfor and were granted a driver’s licence. That is a voluntary act. By doing so, they voluntarily gave this information to SGI on theconditions outlined above with respect to its disclosure by SGI. They can hardly now be heard to complain that SGI has dealt with itexactly in accordance with both the law and SGI’s disclosed privacy policy - which itself merely mirrors the law. [32] Accordingly, I find that there has been no breach of s. 8 of the Charter.

Unconstitutional vagueness [33] The defendants had originally raised this issue in the context of an application under s. 7 of the Charter.

However, duringargument defence counsel advised that the defendants were not proceeding with the s. 7 challenge but were still arguing that ss. 25.1 and25.2 of The Disease Control Regulations, RRS c P-37.1 Reg 11 [Regulation] and the Public Health Order [PHO] made pursuant to thosesections which they are charged with having breached are too vague, and hence unconstitutional, separate and apart from s. 7. [34] The Supreme Court of Canada set out the test for unconstitutional vagueness in Canadian Foundation for Children, Youth andthe Law v Canada (Attorney General), 2004 SCC 4 at paras 15 - 18, [2004] 1 SCR 76 [Canadian Foundation]: [15] A law is unconstitutionally vague if it "does not provide an adequate basis for legal debate" and "analysis"; "does not sufficientlydelineate any area of risk"; or "is not intelligible".

The law must offer a "grasp to the judiciary": R. v. Nova Scotia PharmaceuticalSociety, (SCC), [1992] 2 S.C.R. 606, at pp. 639-40. Certainty is not required. As Gonthier J. pointed out in Nova ScotiaPharmaceutical, supra, at pp. 638-39, …conduct is guided by approximation. The process of approximation sometimes results in quite a narrow set of options, sometimes in abroader one. Legal dispositions therefore delineate a risk zone, and cannot hope to do more, unless they are directed at individualinstances. [Emphasis added.]

[16] A law must set an intelligible standard both for the citizens it governs and the officials who must enforce it. The two are interconnected. A vague law prevents the citizen from realizing when he or she is entering an area of risk for criminal sanction. It similarly makes it difficult for law enforcement officers and judges to determine whether a crime has been committed. This invokes the further concern of putting too much discretion in the hands of law enforcement officials, and violates the precept that individuals should be governed by the rule of law, not the rule of persons.

The doctrine of vagueness is directed generally at the evil of leaving "basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application": Grayned v. City of Rockford , 408 U.S. 104 (1972), at p. 109. [17] Ad hoc discretionary decision making must be distinguished from appropriate judicial

interpretation. Judicial decisions may properly add precision to a statute. Legislators can never foresee all the situations that may arise, and if they did, could not practically set them all out. It is thus in the nature of our legal system that areas of uncertainty exist and that judges clarify and augment the law on a case-by-case basis. [18] It follows that s. 43 of the Criminal Code will satisfy the constitutional requirement for precision if it delineates a risk zone for criminal sanction.

This achieves the essential task of providing general guidance for citizens and law enforcement officers. [ 35 ] Accordingly, the Regulation and the PHO do not have to be absolutely precise. As the Supreme Court points out, that would be an impossible task for legislators to accomplish. Rather, the test to be applied to the is whether or not they “delineate a risk zone”. [ 36 ] Sections 25.1 and 25.2 (since repealed) of the Regulation read as follows: 25.1(1) In this

section and in

section 25.2 : (a) ‘business’ means a person or association that carries on an enterprise or provides a service with the expectation of profit; (b) ‘guidelines’ means the guidelines, as set out in the plan, as amended from time to time; (c) ‘person’ includes partnership; (d) ‘plan’ means Re-Open Saskatchewan: A plan to re-open the provincial economy, as published by the Government of Saskatchewan on April 23, 2020, as amended from time to time.

(2) For the purposes of these regulations, the plan and the guidelines are adopted.

(3) Every person, business, institution, association and other organization to whom or to which the plan and the guidelines apply must comply with the plan and the guidelines. 25.2(1) In this section: (a) ‘face covering’ means a medical or non-medical mask or other face covering that fully covers the nose, mouth and chin, but does not include a face shield or visor; (b) ‘SARS-CoV-2’ means severe acute respiratory syndrome coronavirus 2, the virus that causes COVIC-19.

(2) If, based on the opinion of the chief medical health officer that the increased rate of infection or the expectation of an increased risk of infection from SARS-CoV-2 is likely to cause a serious public health threat, the minister determines that it is in the public interest to do so, the minister may order that any or all of the measures set out in subsection (3) are to be taken for the purposes of preventing, reducing and controlling the transmission of SARS-CoV-2.

(3) An order made pursuant to subsection (2) may impose all or any of the following measures that are set out in the guidelines or that the minister considers necessary for the purposes of the order: (

a) a requirement that persons wear a face covering in the manner set out in the order;

(

b) a requirement to limit the size of gatherings in the manner set out in the order; (

c) a requirement that persons who own, operate or have control over indoor premises or areas: (

i) advise persons entering those premises or areas of the applicable measures aimed at preventing, reducing and controlling the transmission of SARS.CoV.2; and (ii) ensure that the persons mentioned in subclause (

i) take the measures mentioned in that subclause; (

d) a requirement to implement screening measures, except testing, for persons entering or leaving a workplace or other premises that are open to the public in the manner set out in the order; (

e) a requirement that businesses, corporations, institutions as defined in

section 31.1 of the Act , owners and operators of facilities, associations and other organizations have a SARS-CoV-2 mitigation plan that is satisfactory to the minister; (

f) a requirement that businesses, corporations, institutions as defined in

section 31.1 of the Act , owners and operators of facilities, associations and other organizations operate in a manner that prevents, reduces, or controls the spread of SARS-CoV.2; (

g) a requirement that a type of equipment be used, a process be implemented, equipment be removed or equipment or processes be altered to prevent, reduce, or control the transmission of SARS-CoV.2 in the manner set out in the order.

(4) The minister may, if the minister considers it necessary, make different orders pursuant to subsection (2) with respect to different areas of Saskatchewan.

(5) Every person, business, institution, association and other organization to whom or to which an order made pursuant to subsection (2) is directed must comply with that order.

(6) It is sufficient in an order pursuant to subsection (2) to direct the order to a person or class of persons described in the order and the order is not invalid by reason only of the fact that a person to whom the order is directed is not named in the order.

(7) If an order made pursuant to subsection (2) is directed to the public at large or to a number of persons that, in the opinion of the minister, is so large that it would be impractical to effect service in the manner required by

section 58 of the Act , the minister may effect service of the order in any manner the minister considers necessary by all or any of the following means: (

a) publishing the order in a newspaper having general circulation in Saskatchewan or in any area of Saskatchewan that is directly affected by the order; (

b) broadcasting the order on a television station or radio station the signal of which is received in Saskatchewan or in any area of Saskatchewan that is directly affected by the order; (

c) posting copies of the order in public places in the manner and to the extent considered necessary by the minister or the medical health officer; (

d) in the case of an order directed to a large number of persons in a particular place, premises or vehicle, by making a public announcement in the place, premises or vehicle; (

e) publishing the order on the Government of Saskatchewan’s website; (

f) publishing the order in The Saskatchewan Gazette.

(8) A copy of an order made pursuant to subsection (2) that is certified by the minister or a person authorized by the minister is admissible in evidence as a true copy of the order without proof of the office or signature of the minister, and has the same probative force as the original order. [ 37 ] The portion of the PHO which the defendants are charged with having violated reads as follows: 1. I hereby ORDER and DIRECT: (

c) Public and private outdoor gatherings are permitted up to 10 persons. Persons in attendance must ensure that physical distancing of at least 2 meters between households is 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 a case, the gathering size explicitly permitted or required shall not be exceeded, and specified physical distancing shall be maintained. [ 38 ] The defendants did not specify which portions of these enactments they were claiming were too vague. Their own vagueness in this regard is unhelpful.

It is not the Court’s role to hunt through the law to try to find a defence for an accused. Nonetheless, I will examine these various documents to determine whether or not there is any merit to the argument raised by the defendants. [ 39 ] The PHO seems very clear: gatherings outdoors, whether public or private, are permitted in groups of up to 10 persons, and by necessary implication, gatherings in excess of that number are not permitted.

I do not consider there to be any ambiguity arising from the fact that there is no express prohibition on a gathering in excess of 10 persons: in the absence of any other qualifiers, the only possible reading of an allowance of “10 or fewer” is a prohibition on “more than 10". The only vagueness is that amendment is allowed by changes explicitly made on the Government of Saskatchewan website, which apparently did not occur with respect to the present charges. [ 40 ] Applying the Canadian Foundation test, the wording clearly sets out the “risk zone”.

The conduct being governed is clear; the restriction is clear; the only ambiguity would be whether or not the restriction had changed in the five days between the PHO and the rally, and with respect to that, the PHO gives instructions on how to determine that. I find that the risk zone has been adequately delineated. Accordingly, the PHO is not unconstitutionally vague. [ 41 ] With respect to the Regulation , the defendants’ objection cannot be to s. 25.1 , since it does nothing that has any impact on the matter before me: they are not charged, for example, with failing to follow the Re-Open Saskatchewan plan.

Section 25.2(3)(

b) allows for the making of an order which includes “to limit the size of gatherings in the manner set out in the order”, which clearly applies, and subsection 25.2(5) reads, “

(5) Every person, business, institution, association and other organization to whom or to which an order made pursuant to subsection (2) [which provides for orders to be made in subsection (3)] is directed must comply with that order.” These are the only two provisions in the Regulation which seem applicable to the defendants’ situation. Are they too vague, or do they “delineate a risk zone” sufficient to satisfy Canadian Foundation ? [ 42 ] The first, s. 25.2(3)(b), allows for an order which may include a “limit [on] the size of gatherings”.

That seems very clear; there seems to be very little “risk zone” of uncertainty to it - the order can limit gathering sizes. The limit is to be “in the manner set out in the order.” That also seems clear - the order can set out specifics. Again, the “risk zone” is abundantly clear. In essence both provisions simply direct the reader to the order itself, without ambiguity. Accordingly, s. 25.2(3)(

b) likewise passes the Canadian Foundation test. [ 43 ] The second possible provision in the Regulation which is applicable to the defendants is s. 25.2(5) . I will repeat its wording for clarity:

(5) Every person, business, institution, association and other organization to whom or to which an order made pursuant to subsection (2) [which provides for orders to be made in subsection (3)] is directed must comply with that order. [ 44 ] Is the “risk zone” in s. 25.2(5) imprecise in some way? Is there some ambiguity or vagueness in which a person may be unwittingly caught? Is there a trap within it for the unwary? Clearly, the answer is “no”. [ 45 ] The wording of s. 25.2(5), like that of the other provisions examined here, is clear.

In the case of s. 25.2(5), it simply says that the defendants, and everyone else, must comply with orders made under subs. (3). As with the other provisions, the “risk zone” is abundantly clear. [ 46 ] As the defendants did not specify which provisions of the Regulation or PHO they thought were unconstitutionally vague, I have had to attempt to find them. The provisions which I have referred to above are the only provisions which apply to them; accordingly, even if there are other provisions which are unconstitutionally vague, they are irrelevant to the defendants’ current charges.

There is no vagueness, there is no ambiguity. The risk zone demanded by the Supreme Court is clearly delineated. There can be no doubt but that the language of the Regulation authorized the PHO, and that the PHO prohibited precisely the activity in which the defendants engaged, in clear terms.

[ 47 ] Accordingly, the defendants’ argument of unconstitutional vagueness is dismissed.

Provisions are ultra vires [ 48 ] The defendants have argued that s. 25.2(2) of the Regulation is ultra vires , that both the Regulation and the PHO made pursuant to it (which is the basis for the charges before the Court) constitute an unauthorized delegation of power, and that the Regulation and the PHO are unconstitutional. [ 49 ] The Crown disagrees in substantive terms with the defendants’ position, but further argues that these issues have all been addressed by my brother Judge Hendrickson in a decision delivered jointly in those two matters and now published as R v Friesen et al. and R v Hinderager Holdings Ltd. , 2022 SKPC 50 [ Hinderager ] .

The Crown brought a motion to dismiss the defendants’ application on the basis of judicial comity, or “horizontal stare decisis ” as it has been referred to. The principle has recently been discussed by the Supreme Court of Canada in R v Sullivan , 2022 SCC 19 , 472 DLR (4th) 521 [ Sullivan ] .

That decision laid out in very detailed form when a judge of a particular jurisdiction is obliged to follow another judge of the same court and jurisdiction (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). [ 50 ] The Supreme Court continued at para 86: 86 To summarize, a court is required by the principles of judicial comity and horizontal stare decisis to follow a binding prior decision of the same court in the province. A decision may not be binding if it is distinguishable on its facts or the court has no practical way of knowing it existed.

If it is binding, a trial court may only depart if one or more of the Spruce Mills exceptions apply. [ 51 ] Accordingly, the process to determine if judicial comity applies is: (1) determine if the prior decision is binding. It is not binding if the facts of the previous decision are different in a way that significantly affects the legal analysis; (2) if the decision is binding, it must be followed unless: (

i) higher courts’ decisions have undermined the rationale for the prior decision; (ii) the prior decision failed to consider binding authority which, had it been considered, would have resulted in a different conclusion; or (iii) the prior decision was not fully considered, typically due to time pressures such as the exigencies of trial. [ 52 ] Given step one, it will often not be possible to determine whether or not the prior decision is binding until after the evidence has been heard. This was the situation in the matter before me.

Having established the factual background, however, it is clear that the differences in facts between the defendants’ situation and that in Hinderager do not affect the legal analysis. Step one is accordingly satisfied - the decision is binding. [ 53 ] With respect to step 2(i), there have been no higher court decisions regarding this issue as of yet, and as regards step 2(iii), the

Hinderager decision was clearly not made in a hurried or rushed manner - to the contrary, it displays a thoughtful, considered and reasoned analysis. [ 54 ] The defendants argue, however, that step 2(ii) has not been met, and that therefore further argument remains available to them.

Their position is that there is a significant argument which is not addressed in Hinderager , and that therefore that argument can be made here. [ 55 ] The language used in Sullivan at paragraph 75 with respect to 2(ii) and 2(iii) seems to imply that those steps will be engaged only when errors have been made (“carelessness", "inadvertence", “not fully considered”). However, the subsequent paragraphs ameliorate that language somewhat. The burden otherwise, on both the trial judge and trial counsel in that first instance, is unmanageable.

Counsel would be presumed to have considered every possible argument that could be advanced, and the judge presumed to have disposed of any such arguments even without such disposition being overtly reflected in their decision. The Supreme Court cannot have had such an expectation.

It is the experience of virtually anyone who has worked within the court system that fresh arguments can arise from inventive legal minds, and that busy counsel may not always have the time or resources to research, consider and present every conceivable argument in a particular case. [ 56 ] I do not see Sullivan as eliminating the ability of future counsel and future courts to consider new arguments which were not presented or decided in the initial decision. In my view, the Supreme Court intended that a trial court have the ability, under step 2(ii), to hear counsel who wish to raise a new argument.

Some considerations might be: (

a) is there an authority which appears to be binding via judicial comity? (

b) are the steps in Sullivan ostensibly met, other than the new argument which counsel wishes to raise? If not, then Sullivan does not apply; (

c) is the new argument in fact new - that is, was it considered in some fashion in the prior decision? If so, then Sullivan applies and the application cannot succeed. This step will require that the Court hear a

summary of the new argument; (

d) does the new argument have a reasonable prospect of success? This would be a gatekeeping function - without deciding on the argument’s validity, after hearing briefly both sides’ position with respect to the new argument , does it seem to have sufficient validity that it cannot be dismissed summarily? If there is no reasonable prospect of success, then necessarily the application cannot succeed; (

e) if the new argument succeeds, will it change the outcome? If not, then the issue is moot and the argument should not be heard. [ 57 ] In the matter before me, defence argues that it has an argument which was not considered in the Hinderager decision. Steps (

a) and (

b) of the process outlined above have been met. The argument in

summary form is set out in the defendants’ Brief in the current matter dated December 7, 2022. Paragraph 2 sets out the following arguments: (

a) subs. 25.2(2) of the Regulation , by which the PHO is ostensibly authorized, is ultra vires the Act ; (

b) the Regulation and PHO are illegal for unauthorized sub-delegation of statutory power; (

c) the Regulation and PHO are inconsistent with the provisions of the Constitution, and pursuant to subs. 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. [ 58 ] Examining Hinderager to determine whether or not the argument in the above paragraph was in fact considered, I find the following: [5] In an amended Notice of Constitutional Question, the applicant says the grounds of inconsistency with the Constitution Act, 1982 include inter alia that the power conferred under

Section 25.2 exceeds the authority granted in The Public Health Act, 1994 , SS 1994, c P-37.1 [the Act ]; that

Section 25.2 of The Disease Control Regulations transforms a legislative power into an administrative power and is, thus, illegal.

Executive regulations and order amounting to the exercise of legislative power invalidly intrude on the exclusive authority of the legislature, and the Regulation and Public Health Order involve the exercise of a substantive legislative power properly the subject of direct legislative enactment. [15] The argument of the applicant essentially is that the PHO under which the applicants are charged are unenforceable because the Regulation which purports to authorize the orders are legally defective. In her written brief Ms.

Anderson says the following: “In the context of the proceeding, the question for this Honourable Court is whether the executive exceeded its’ authority when it enacted the Regulation and the Public Health Order.” Ms. Anderson says subsection 25.2 of the Regulation upon which the PHO is ostensibly authorized is ultra vires the Act . The Regulation and PHO are illegal for unauthorized sub-delegation of statutory power, and the Regulation and PHO are inconsistent with Section 52(1) of the Constitution Act, 1982 . [17] In my view, the issues I must consider are: 1.

Is the impugned Regulation ultra vires its parent Act , the Public Health Act , 1994 ? 2. Is the impugned Regulation inconsistent with the constitution? 3. If I find the Regulation ultra vires or inconsistent, what remedy if any, flows from that determination?

[38] In conclusion, the applicants have not established the Regulation is ultra vires The Public Health Act , 1994 . Thus, the answer to the question posed in issue one is: ‘NO’. The Regulation is not ultra vires its’ parent Act , The Public Health Act , 1994 . [47] In conclusion, I find the applicant has not demonstrated the Regulation is inconsistent with the Constitution Act, 1982 . Thus, the answer to the question posed in Issue II is: ‘NO’; the impugned Regulation is not inconsistent with the constitution. [ 59 ] It is instructive to juxtapose the issues from paragraph 2 of the Brief filed in the present matter with the corresponding portions of Hinderager : Brief: “

a) subs. 25.2(2) of the Disease Control Regulations [ Regulation ], by which the PHO is ostensibly authorized, is ultra vires the Act ”; Hinderager (para 15 ): “Ms. Anderson says subsection 25.2 of the Disease Control Regulations upon which the PHO is ostensibly authorized, is ultra vires the Act . “ Brief: “(

b) the Regulation and PHO are illegal for unauthorized sub-delegation of statutory power”; Hinderager (para 15 ): “Ms. Anderson says . . . The Regulation and PHO are illegal for unauthorized sub-delegation of statutory power” Brief: “(

c) the Regulation and PHO are inconsistent with the provisions of the Constitution, and pursuant to subs. 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.” Hinderager (para 15 ) “Ms. Anderson says . . . the Regulation and PHO are inconsistent with Section 52(1) of the Constitution Act , 1982 .” [ 60 ] On the face of it, Hinderager appears to have dealt with precisely the issues the defendants seek to raise before me - even the wording is identical.

The defendants are aware of the comity problem - their Brief notes (para 6) that the defendants must show that “the court of first instance failed to consider some binding authority or relevant statute and, had the court considered the authority or statute it would have come to a different decision.” Having said that, however, the defendants do not make clear what their new authority or statute is. For example, the first case cited in the Brief after the note that something new is required is Katz Group Canada Inc v Ontario (Health and Long-Term Care) , 2013 SCC 64 , [2013] 3 SCR 810 .

Judge Hendrickson quoted extensively from that same decision in Hinderager (para 19 ), which suggests rather strongly to me that he did not fail to consider it. [ 61 ] As best I can follow their Brief and oral argument, the defendants seek to raise three arguments as new. I will examine each in turn.

New Argument – ultra vires [ 62 ] This argument (Brief, paras 22 and 23) is that s. 25.2(2) of the Regulation granted the minister the power to make orders based on “the opinion of the chief medical health officer that the increased rate of infection or the expectation of an increased risk of infection from SARS-CoV-2 is likely to cause a serious public health threat”, while the minister’s power under The Public Health Act, 1994 [ Act ] ( s. 45 ) is to make orders if “the minister believes, on reasonable grounds, that a serious public health threat exists in Saskatchewan.” The argument (Brief, para. 23) is that there is “a significant divergence from the evidentiary standard set out in the Act and [the Regulation ] conflicts with the provisions therein.” [ 63 ] The defendants are apparently arguing that the Act requires the minister’s reasonable belief to justify action, but the Regulation requires only the opinion of the chief medical health officer, reasonable or otherwise.

In other words, the minister’s belief must be reasonable, but there is no requirement that the chief medical health officer’s opinion be reasonable. The argument is that the Regulation , by accepting a lower standard of proof, conflicts with the Act and is therefore ultra vires . [ 64 ] I cannot find anywhere in Hinderager where this argument was addressed. Accordingly, I have to consider whether or not it has a reasonable chance of success. [ 65 ] In my view, it does not.

Section 45(1) allows the minister to take actions specified in subs. (2); but as noted elsewhere in this decision, there is nothing in subs. (2) that is relevant to the charge which the defendants are facing. To repeat: the charge is attending a

gathering of more than 10 persons; nothing in s. 45(2) can be used to justify such an order (again: S45(2)(

c) allows the minister toprohibit public gatherings; the order in question does not do so).

Section 45 is irrelevant to the Regulation. Whether or not they havedifferent standards for their different operations does not matter to the case before me. The defendants’ argument is moot. [66] The argument therefore, although not raised in Hinderager and therefore entitled to be brought forward now, fails the“reasonable prospect of success” test. New Argument – unauthorized sub-delegation [67] The argument here is that the power to impose, for example, the crowd-size restriction in the Regulation is a legislative powerrather than an administrative one, and as such is illegal.

They make reference to this as a “re-delegation” (Brief, para. 29). Other thancalling this a “re-delegation” rather than a “sub-delegation”, it is not clear to me how this argument differs significantly from that dealtwith by Judge Hendrickson in Hinderager. It is possible that there are minor differences, but I do not see this as a new argument.

It is atbest the same argument dressed up in slightly different clothing. [68] Under this same heading, the defendants also argue that a power to impose “restrictions on established rights and freedoms”can only be explicitly granted by the Legislature: it cannot be sub-delegated by the Lieutenant Governor in Council unless such sub-delegation is expressly authorized by the Legislature, in the governing Act. Again, this argument seems to have been comprehensivelydealt with by Judge Hendrickson in Hinderager.

It appears that the only aspect of the argument that might be new is a citation from anAlberta Court of Queen’s Bench decision from 2022. I do not know whether or not that decision was before Judge Hendrickson, but itdoes not matter: Sullivan is not authority for the proposition that a decision from another province, of whatever level, overcomes judicialcomity. Sullivan accordingly applies to this argument, and I am bound to follow Hinderager. New Argument – inconsistent with the provisions of the Constitution [69] This argument can best be summed up by quoting from para. 42 of the defendants’ Brief: 42.

In the case at bar, the rules and restrictions enacted under the ostensible authority of the executive, through the operation of theRegulation and PHO, not only restrained and trammeled civil liberties but imposed exorbitant penalties for non-compliance, withoutstatutory authorization. [70] It is obvious that this same issue was before Judge Hendrickson.

He quoted the argument made before him, which is virtuallyword for word the same as that made before me (para 39): They argue “the rules and restrictions enacted under the ostensible authority of the executive, through the operation of the Regulationand the PHOs, not only restrained, and trammeled civil liberties but imposed exorbitant penalties for non-compliance.” [71] So far as I can determine from the defendants’ Brief, the only novel aspect of their argument compared to that made beforeJudge Hendrickson is paragraph 43: 43 The reasoning outlined in Dunsmuir v New Brunswick, 2008 SCC 9 at para. 28 and 29 confirms that the unauthorizedexercise of public power trangresses the rule of law and the principle of constitutionalism.

The Regulation and PHO are thereforeinvalid, and the charges herein are null and void. [72] The first sentence is not a new argument, but merely a trite statement of the law. It also presupposes that the Regulation andPHO are unauthorized, which has not been found to be the case. I would accordingly not allow this argument to proceed further, firstlyon the basis that it is not a new argument, and secondly on the basis that it has no reasonable prospect of success, since it presumes afinding in law that has not been found.

I would also note that if this precondition had been found to exist, namely that the Regulation andPHO were not authorized, then it would seem that this argument would be irrelevant: the Regulation and PHO would presumably bestruck down for not having been authorized, rendering this argument moot. [73] I therefore find that the arguments presented by the defendants regarding the ultra vires issue either have been considered andrejected in Hinderager, or do not pass the Sullivan test to allow them to be argued. [74] Accordingly, judicial comity requires that I follow Hinderager.

In the event that I am incorrect in that conclusion, I will statethat I agree with my brother Judge Hendrickson’s reasoning, and to the extent that it applies to the issues before me, would follow it evenwere I not bound to do so. [75] Accordingly, the defendants’ application to have the various provisions and the PHO declared ultra vires or the product of aninvalid delegation of power is dismissed. PHO not authorized by statute [76] The defendants argue that the PHO is invalid because it was not authorized by its governing legislation.

The Crown assertsthat the PHO was authorized by either or both of ss. 38 and 45 of the Act; the defendants dispute this. It is not necessary that the specificprovision which the defendants are charged with violating be authorized by both sections, of course; it is sufficient if it is authorized byone or the other. The PHO states that it is made pursuant to ss. 38 and 45(2) of the Act and s. 25.2(2) of the Regulations, and contains alarge number of provisions; each provision must be authorized, but so long as each is authorized by one

section or another, this argument

will fail.

Section 38 [ 77 ] Section 38(1) reads:

(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. [ 78 ] Section 2(1)(t.1) defines a medical health officer as including the chief medical health officer. The PHO was signed by Dr. Saqib Shahab in his capacity as Saskatchewan’s Chief Medical Health Officer. He therefore has the power to make orders under s. 38(1). [ 79 ] Section 38(2) lists the powers available to, inter alia , Dr. Shahab under s. 38(1).

Those include, in s. 38(2)(g), to “require a person to conduct himself or herself in a manner that will not expose another person to infection”. [ 80 ] I consider the following facts to be beyond dispute, and take judicial notice of them: (

a) COVID-19 is a communicable disease within the meaning of s. 2(1) (

h) of the Act ; (

b) a communicable disease is more likely to be spread where individuals are in closer contact than where they are not. [ 81 ] The

preamble to the PHO makes specific reference to COVID-19 as a communicable disease and as a serious public health threat, as defined in the Act . It further makes specific mention of the risk of increased transmission and infection from gatherings of people in close contact. Finally, it states that the measures contained within it are considered necessary by Dr. Shahab to decrease or eliminate the risk to health posed by COVID-19. [ 82 ] A limitation on public gatherings therefore appears to be within the ambit of s. 38(2)(g). [ 83 ] The defendant argues that the PHO must be directed to specific individuals “because orders made under the authority of

section 38 are subject to appeal to the Court of King’s Bench”. Section 40(1) of the Act provides: A person who is the subject of an order pursuant to

section 38 may appeal from the order to the Court of Queen’s Bench [ sic ] by filing a notice of appeal with a local registrar of the court within 60 days after the day on which the order is served on the person. [ 84 ] The defendants’ argument is that they would be unable to appeal the PHO under s. 40 because they are not specifically named in it. With respect, that is not a correct reading of the legislation. There is nothing in s. 40 requiring a person to be named in the PHO in order to appeal it: s. 40 simply requires that they be “the subject of” the order.

There is nothing that I am aware of, in the Act , in interpretive statutes or in case law, that says that “the subject of an order” cannot be a member of a class of persons rather than named persons. I note as well that The Legislation Act , SS 2019 c L-10.2, s. 2 - 24 reads: “ In an enactment, words in the singular include the plural and words in the plural include the singular.” I am not aware of any reason why any of the defendants would not be able to appeal the PHO. [ 85 ] Accordingly, this argument fails.

I find that the provision of the PHO which they are charged with violated was authorized under s. 38 of the Act . That provision is therefore valid since, as noted above, it need only be authorized under one of the provisions named.

Section 45 and Regulation 25.2(2) [ 86 ] In the event that I am wrong with respect to s. 38 , I will examine the defendants’ arguments with respect to the power under s. 45 to issue the PHO. [ 87 ] The defendants argue that s. 45(2) of the Act does not authorize either the Minister of Health or a medical health officer to issue an order banning outdoor public and private gatherings of over 10 people.

Alternatively, they argue that: if such power is granted to a medical health officer, then it operates under s. 45(2.2); an order made under that subsection expires after 48 hours unless confirmed by the Minister of Health; no such confirmation was ever made; accordingly, the PHO had expired by the time of the “offence” with which they are charged. [ 88 ] The Crown agrees that no such confirmation was ever made, but says this is because the power was not exercised under s. 45(2.2), nor indeed under s. 45(2) ; rather, the Crown argues, the power exercised by Dr.

Shahab in making the order was power under s. 45(1) delegated to him by the Minister, making all of Mr. Friesen’s arguments in this respect moot. Although it was not addressed in argument, I note that the Crown’s position on delegation seems to have been definitively adopted by the Court of King’s Bench in R v Grandel and Mills , 2022 SKKB 209 ] at para. 44 [ Grandel and Mills ]: [44] The size of gatherings was contemplated in ss. 25.2(3)(

b) of the Regulations . Pursuant to s. 2 - 34 of The Legislation Act , SS 2019, c L-10.2 , the Minister’s order-making power was conferred on Dr. Shahab to make orders under s. 45 of the Act and s. 25.2(3) of the Regulations on behalf of the Minister. [ 89 ] I recognize that paragraph 44 appears in Grandel and Mills in the

section entitled “Background”, which is largely factual and therefore not binding on me. However, in paragraph 30 of Grandel and Mills the learned Justice makes clear which portions of what follows are from evidence led before him: “I rely on the materials presented to the Court to illustrate the characteristics of the COVID-

19 virus and the effects of the COVID-19 pandemic ” (emphasis added). Accordingly, paragraph 44 is not the product of evidence. Rather, although the learned Justice does not specify as much, it is simply an analysis of the legal authority granted by statute and matters of which judicial notice can be taken. The defendants’ arguments with respect to delegation of powers and s. 45(2.2) accordingly become irrelevant in these proceedings, the point having already been decided in a manner binding on me.

The argument with respect to s. 45 therefore fails. [ 90 ] Having said that, the defendants’ argument with respect to s. 45(2.2) is in any event moot, as can be noted in a closer reading of s. 45. The crucial portions of s. 45 are 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. [ 91 ] It is common ground that s. 45(2) (

c) is the only provision in s. 45 applicable to the PHO. The defendants’ argument is that Dr. Shahab’s order prohibiting gatherings over 10 people was made pursuant to s. 45(2) (c), that the power to do so was found in s. 45(2.2), and that the order expired pursuant to s. 45(2.3) prior to the defendants’ actions. However, s. 45(2)(

c) does not in fact apply. It allows an order “prohibit[ing] public gatherings”. [ 92 ] The Crown has argued that the power to prohibit public gatherings must necessarily include the power to limit public gatherings. With respect, I disagree. The power to limit is inherently different from the power to prohibit. [ 93 ] Nothing in the PHO prohibits public gatherings; in fact, the PHO is exactly to the contrary - it allows public gatherings, albeit with a size restriction. No reading of s. 45(2)(c), however strained, can give it the appearance of authorizing the PHO restriction.

Section 45 is simply irrelevant to the charge which the defendants are facing. [ 94 ] For all of the above reasons, this argument of the defendants must fail. Incorporation [ 95 ] This decision is being released contemporaneously with R v Drebit et al. , 2023 SKPC 8 and R v Friesen , 2023 SKPC 9 . To the extent that any of the defendants’ arguments are not addressed here but are in either of the other two decisions, I adopt the reasons in those decisions. Conclusion [ 96 ] The defendants’ application to exclude evidence pursuant to s. 24(2) of the Charter is dismissed.

There having been no violations of the Charter , it is not necessary for me to perform an analysis pursuant to R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 . The

evidence from the voir dire is accordingly admitted. That evidence clearly establishes that the defendants committed the offence with which they are charged. None of their other arguments have been made out. I therefore find the defendants guilty as charged. ___________________ Q.D. Agnew, J