Erinn Knoll v. Christina Hagel, 2023 SKPC 29

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 29 Date: April 20, 2023 Information: 991192882 SOPA Ticket No(s): 85492794, 85492833 Location: Regina Between: Erinn Knoll and Christina Hagel Applicants - and – His Majesty the King and The Attorney General of Saskatchewan Respondents Appearing: Erinn Knoll and Christina Hagel Applicants Noah Wernikowski For the Respondents DECISION ON APPLICATION S M. HINDS , J INTRODUCTION

[ 1 ] Tanya Apodaca, Gerald Ferguson, Cindy Gall, Christina Hagel, Jasmine Grandel, Erinn Knoll, Brenda Kriese, Tamara Lavoie, Edward Palchinski, and John Slastukin are charged that on or about May 15, 2021 at Regina, Saskatchewan they did fail to comply with a Public Health Order by attending a gathering exceeding 10 people , contrary to

section 61 of The Public Health Act, 1994 , SS 1994, c P- 37.1 [ The Public Health Act, 1994 ]. [ 2 ] Each of the accused are also separately charged by way of The

Summary Offences Procedure Act , 1990 , SS 1990-91, c S-63.1 tickets arising from May 15, 2021 at Regina, Saskatchewan that they each did fail to comply with a Public Health Order (PHO) by attending a gathering exceeding 10 people, contrary to

section 61 of The Public Health Act, 1994 . The Crown combined all of the accused in a single Information 99119882 as set out in paragraph one. [ 3 ] On April 7, 2022, trial dates were set for March 20-23 and 27, 2023. At that time, the accused Erinn Knoll was represented by legal counsel, Luke Coupal and the accused Christina Hagel was represented by legal counsel, Elaine Anderson. The trial took place on March 20 and 21, 2023.

This decision concerns an application made by two accused Erinn Knoll, and Christina Hagel, within the trial. [ 4 ] On or about October 11, 2022 Erinn Knoll filed two documents with the Court which contains the following: Charter Challenge Withdrawal & Change in Representation Court File/Ticket Number s: 85492458 & 85492794 Location: Regina, Sk Defendant: Erinn Knoll Please note, I, Erinn Knoll, effective October 7 th , 2022 will no longer be proceeding with a Charter Challenge under the legal representation of Luke Coupal in the case pertaining to ticket number 85492458 & 85492794 I have withdrawn the Charter Challenge with both the Attorney General of Canada and The Attorney General of Saskatchewan, as I will now be proceeding as a self represented woman, whose rights were violated, of which those rights are protected under the both the Canadian Bill of Rights and the Saskatchewan Bill of Rights via the Human Rights Code. [ 5 ] On or about October 11, 2022 another accused, George Seitz filed a document with the Court which contains the following: Charter Challenge Withdrawal Court File/Ticket Numbers : 85462044 & 84592295 Location: Regina, Sk Defendant: George Seitz Please note, I, George Seitz, effective October 3 rd , 2022 will no longer be proceeding with a Charter Challenge under the legal representation of the Justice Centre for Constitutional Freedoms in the case pertaining to ticket number: 85462044 & 84592295 I wish to withdraw the Charter Challenge, as I will now be proceeding as a self represented man, whose rights were violated, of which those rights are protected under the both the Canadian Bill of Rights, the Saskatchewan Bill of Rights and the Human Rights Code. [ 6 ] On October 18, 2022, Elaine Anderson sought and obtained leave to withdraw as George Seitz’s legal counsel.

Mr. Seitz was present in court via telephone on this date. [ 7 ] On November 1, 2022, Mr. Coupal sought and was granted leave to withdraw as Erinn Knoll’s legal counsel. Erinn Knoll was present in court on this date. [ 8 ] On December 2, 2022, Erinn Knoll appeared in court on her two matters, a failing to wear a face covering offence dated April

24, 2021 set out in Information 991192860, Count 1 (Ticket 85492458) and on a gathering exceeding 10 people offence dated May 15, 2021 set out in Information 991192882 ( Ticket 85492794 ). George Seitz also appeared in court on December 2, 2022 on his two matters, a gathering exceeding 10 people offence dated April 24, 2021 set out in Information 991192860, Count 2 (Ticket 8542044) and a gathering exceeding 10 people offence dated May 8, 2021 set out in Informations 991192864 and 991213623 (Ticket 85492295).

The Court advised Erinn Knoll and George Seitz that any arguments they wished to make before the Court involving violations of their rights, including those under the Canadian Bill of Rights , SC 1960, c 44 [ Canadian Bill of Rights ], The Saskatchewan Bill of Rights Act, RSS 1978, c S-9 [ Saskatchewan Bill of Rights ] and The Saskatchewan Human Rights Code , 2018 , SS 2018, c S-24.2 [ Saskatchewan Human Rights Code, 2018 ] were to take place on January 18, 2023, 9:30 a.m. in courtroom #10.

I note that the Saskatchewan Bill of Rights was repealed in 1979 and incorporated into The Saskatchewan Human Rights Code , SS 1979, c S-24, which has been amended since that time. [ 9 ] On December 30, 2022 George Seitz filed the following documents with the Court:

i) Application dated December 29, 2022. ii) Affidavit of George Seitz dated December 30, 2022. iii) Statement of Legal Argument, undated. [ 10 ] Prior to or on January 18, 2023 Erinn Knoll filed the following documents with the Court:

i) Two Affidavits of Erinn Knoll, both dated December 15, 2022. ii) Two Applications both dated January 17, 2023. iii) Statement of Legal Argument, undated. iv) Statement of Legal Argument, undated. [ 11 ] On December 30, 2022, Christina Hagel filed three documents with the Court which read in part: Charter Challenge Withdrawal & Change in Representation Court File/Ticket Numbers: 85391480, 85463749 & 85492833 Location: Regina, Sk Defendant: Christina Hagel Please note, I, Christina Hagel, effective December 30, 2022 will no longer be proceeding with a Charter Challenge under the legal representation of the Justice Centre for Constitutional Freedoms in the case pertaining to ticket numbers 85391480, 85463749 & 85492833.

I have withdrawn the Charter Challenge with both the Attorney General of Canada and The Attorney General of Saskatchewan, as I will now be proceeding as a self represented woman, whose rights were violated, of which those rights are protected under the both the Canadian Bill of Rights and the Saskatchewan Bill of Rights via the Human Rights Code. [ 12 ] On January 4, 2023, Elaine Anderson sought and obtained leave to withdraw as Christina Hagel’s legal counsel. Christina Hagel was present in court via telephone when this occurred.

The Court advised Christina Hagel that any arguments she wished to make before the Court involving violations of her rights, including those under the Canadian Bill of Rights and the Saskatchewan Bill of Rights via the Saskatchewan Human Rights Code , 2018 , were to take place on January 18, 2023, 9:30 a.m. in courtroom #10. In addition, the Court advised her that if she wished to file any written materials to the Court on this matter the materials were to be provided to the Court on or before January 16, 2023. Legal counsel for the Attorney General of Saskatchewan (AG Sask) was advised of the same. Ms.

Hagel did not file any written materials with the Court. [ 13 ] On January 16, 2023, legal counsel for the AG Sask provided Erinn Knoll, George Seitz and Christina Hagel with a document entitled Respondent’s Brief of Law Re “Bill of Rights” Challenges. This document was also filed with the Court on January 16, 2023. [ 14 ] On January 18, 2023, the Court heard oral submissions by Erinn Knoll, George Seitz and Christina Hagel to have the Court dismiss all charges against them based on violations of their rights under the Canadian Bill of Rights , the Saskatchewan Bill of Rights and

the Saskatchewan Human Rights Code, 2018 . The AG Sask was represented by Noah Wernikowski, who made oral submissions in opposition to the application. [ 15 ] At no time prior to or on January 18, 2023, did Erinn Knoll, George Seitz or Christina Hagel request an adjournment of the proceedings set for that day. [ 16 ] On January 18, 2023, this Court provided an oral decision.

The application to dismiss the offences before the Court based on violations of the Canadian Bill of Rights , the Saskatchewan Bill of Rights and the Saskatchewan Human Rights Code, 2018 was dismissed. [ 17 ] In the first place, the Court determined that while the Canadian Bill of Rights is still in force today, it only applies to federal legislation . The matters before the Court do not pertain to any federal legislation or statute. As a result, the Canadian Bill of Rights is not applicable in these matters.

More specifically the Court determined that The Public Health Act, 1994 is not subject to be repealed, abolished or altered by the Federal Government, nor is The Public Health Act, 1994 a matter within the legislative authority of the Federal Government. The Canadian Bill of Rights , accordingly, does not apply to The Public Health Act, 1994 or the enactments made thereunder including the Public Health Orders.

The impugned Public Health Orders, therefore, can not be invalidated based on a conflict with the Canadian Bill of Rights . [ 18 ] Secondly, the Court determined it was bound by the decision of Judge Agnew dated January 17, 2023, in R v Drebit, 2023 SKPC 8 where, at paragraph 5, he considered the claim of Ms. Chipesia and stated as follows: [5] … To the extent that she offered a legal argument, it was based on The Saskatchewan Human Rights Code, 2018 , SS 2018, c S-24.2 [ Code ]. 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. However, as Ms. Chipesia has not followed that process, and as this Court is not the Court of King’s Bench, the Code does not give me any power to address her issues even if there was evidence to support them; which there is not. In this case, Ms. Knoll and Ms.

Hagel also did not bring their matters to the Saskatchewan Human Rights Commission. [ 19 ] On or about February 28, 2023 Erinn Knoll and Christina Hagel filed the following documents with the Court:

i) Notice of Application and Quasi-Constitutional Issue. The application is dated February 27, 2023 and concerns the offence of a gathering exceeding 10 people dated May 15, 2021 set out in Information 991192882 (see also Ms. Knoll’s Ticket 85492794 and Ms. Hagel’s Ticket 85492833). ii) Affidavit of Erinn Knoll dated February 28, 2023. iii) Affidavit of Christina Hagel dated February 28, 2023. [ 20 ] The relief sought in the application was an Order striking sections 1(

d) and 4(

c) of the impugned Public Health Order of May 6, 2021 as inoperative per

section 52 of the Saskatchewan Human Rights Code, 2018 due to an irreconcilable conflict of law. The applicants relied upon (1) the Charter , in particular, sections 2(

b) and (c), (2) the Canadian Bill of Rights and (3) the Saskatchewan Human Rights Code, 2018 , in particular sections 3 , 4 , 5 , 6 and 52 . [ 21 ] On March 16, 2023 Senior Crown Counsel, Theodore Litowski, served and filed a letter dated March 16, 2023 with the Court. Part of this letter addressed the Notice of Application and related materials filed by Erinn Knoll and Christina Hagel. [ 22 ] On or about March 17, 2023 Erinn Knoll and Christina Hagel filed the following documents with the Court:

i) Notice of Application and Constitutional Issue dated March 17, 2023. The application concerns the offence of a gathering

exceeding 10 people dated May 15, 2021 set out in Information 991192882 (see also Ms. Knoll’s Ticket 85492794 and Ms. Hagel’sTicket 85492833). The applicants sought a stay of proceedings pursuant to section 24(1) of the Charter on the basis that their section11(

d) of the Charter right to make full answer and defence was violated. ii) Supplementary Affidavit of Erinn Knoll dated March 17, 2023. iii) Supplementary Affidavit of Christina Hagel dated March 17, 2023. [23] On or about March 20, 2023 Erinn Knoll and Christina Hagel filed the following document with the Court:

i) Reply Factum dated March 20, 2023. [24] The evidentiary portion of this trial of this offence took place on March 20 and 21, 2023. The argument respecting theseapplications took place on March 30, 2023. The applicant, Erinn Knoll made an opening statement to the Court. Ms. Hagel appeared bytelephone. She did not make any statements. Counsel for the AG Sask, Noah Wernikowski made oral submissions to the Court.

TheCourt granted the request of Erinn Knoll and Christina Hagel permitting them to file a written response to Crown Counsel’s oralsubmissions by April 6, 2023. [25] On April 6, 2023, the applicants Erinn Knoll and Christina Hagel filed document entitled “Brief of Law, Reply to AttorneyGeneral of Saskatchewan”. [26] On April 6, 2023, legal counsel for the AG Sask, Noah Wernikowski sent an e-mail to the Court’s case manager, Amy Miller. Mr.

Wernikowski requested that the following information be provided to the Court: During the March 30th proceeding, I advised the Court that R v DeSousa [1992]) (SCC), 2 SCR 944)] demonstrates thatcourts have jurisdiction to reconsider previous rulings in rare instances if they are not functus. This was an error that I seek to correct. The source for that proposition is R v Adams ([1995] 4 SCR 7070 at para 29), not Desousa. ISSUES [27] The issues before the Court are as follows: 1.

Should the Court revisit its decision of January 18, 2023 where it dismissed the application before it based on violations of theCanadian Bill of Rights, the Saskatchewan Bill of Rights and the Saskatchewan Human Rights Code, 2018? 2. Have the applicants established there has been a breach of their right to make full answer and defence as set out in

section 11(

d) of theCharter? Analysis 1. Should the Court revisit its decision of January 18, 2023 where it dismissed the application before it based on violations of theCanadian Bill of Rights, the Saskatchewan Bill of Rights and the Saskatchewan Human Rights Code, 2018? [28] In R v Adams, (SCC), [1995] 4 SCR 707 [Adams] the Supreme Court of Canada determined that courts have thejurisdiction to reconsider previous rulings in rare instances if they are not functus.

In Adams, the Court stated as follows at paragraph 30: [30] As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at thetime the order was made have materially changed.

In order to be material, the change must relate to a matter that justified the making ofthe order in the first place. [29] In Canadian Broadcasting Corp. v Manitoba, 2021 SCR 33 the Supreme Court had occasion to discuss Adams as follows atparagraphs 54 -56: [54] … On my understanding, Adams dealt simply with the question as to when a judge could reconsider a previous order made in thecourse of trial. The impugned order, which purported to lift a publication ban previously made, was decided as the trial judge dismissed

the charges against the accused (Adams, at para. 5). This Court concluded that the trial judge did not have the power to revoke the orderbecause the circumstance that made the order mandatory had not changed (para. 31). Subsequent appellate jurisprudence has interpretedthe judgment to provide a general rule about varying such orders, rather than a rule about functus officio (see, e.g., BCTF, at para. 22; R.v. B. (H.), 2016 ONCA 953, 345 C.C.C. (3d) 206, at para. 51; R. v. Le, 2011 MBCA 83, 270 Man. R. (2d) 82, at para. 123).

Theprinciples in Adams balance finality and flexibility even when the court is not functus officio, by permitting the reconsideration of suchorders where there has been a material change of circumstances. [55] In deciding whether this rule from Adams applies, I do agree that a first question for the court will be whether there has been amaterial change in circumstances since the making of the initial order (para. 30). The burden of establishing this change falls to the partyseeking a variation in the order (see, by analogy, L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 31).

That party mustestablish both that a change of circumstances has occurred and that the change, if known at the time of the initial order, would likelyhave resulted in an order on different terms (L.M.P., at para. 32; Droit de la famille — 132380, 2013 QCCA 1504, 37 R.F.L. (7th) 1, atparas. 75-76; R. v. Baltovitch (2000), (ON CA), 47 O.R. (3d) 761 (C.A.), at para. 6).

The correctness of the initialorder is presumed and is not relevant to the existence of a material change of circumstances (L.M.P., at para. 33; Droit de la famille —132380, at para. 78). [56] Instances in which a court may reconsider a decision respecting its court record are distinct from an appeal or application forcertiorari made to a higher court from such decisions (see, generally, Dagenais, at pp. 870-72).

In a motion to reconsider on bothgrounds described above, the original court is not being asked to reconsider its decision because it is wrongly decided, but rather becauseit was made without relevant submissions from an affected party or on the basis of a material change in the circumstances that justifiedthe initial decision. [30] I am of the view that the applicants have not established that a material change of circumstances has occurred since the Court’sdecision of January 18, 2023 respecting arguments based on the Canadian Bill of Rights, the Saskatchewan Bill of Rights and theSaskatchewan Human Rights Code, 2018.

Simply put, no underlying facts have changed since January 18, 2023. The applicants hadnotice that their arguments would be considered well in advance of January 18, 2023. To that end, Erinn Knoll prepared and filedmaterials in support of her claim, as did George Seitz. Erinn Knoll, George Seitz and Christina Hagel fully participated in the hearing ofJanuary 18, 2023. They each made oral submissions in support of their arguments. It is apparent that Erinn Knoll and Christina Hagelare dissatisfied with the Court’s decision of January 18, 2023. They may wish to appeal this decision to a higher court.

However, theymay not relitigate the issue a second time in this Court. [31] As noted in paragraph 20 of this decision, the applicants also now rely upon ss. 2(

b) and (

c) of the Charter. This is a newargument not raised by the applicants on January 18, 2023. Indeed, prior to January 18, 2023 the applicants each specifically advised theCourt in writing that they would be no longer be proceeding with a Charter challenge previously made by their former legalrepresentatives. [32] In The Attorney General for Saskatchewan v Grandel, 2022 SKPC 48 [Grandel] the accused alleged that certain Public HealthOrders which imposed outdoor gathering limits (including the PHO set out in the present charges) were contrary to ss. 2(b), 2(

c) and 2(d)of the Charter. In Grandel, the AG Sask provided a Notice of Intention asking the Court to summarily dismiss portions of Notice ofConstitutional Questions (NCQ) relating to outdoor gathering restrictions based on ss. 2(b), (c), and (

d) of the Charter. In Grandel, Idetermined that I was bound by the doctrine of vertical stare decisis. As a result, I followed the decision of Mr. Justice Konkin inGrandel and Mills v Saskatchewan and Dr. Saqib Shahab, 2022 SKKB 209, wherein he concluded at paragraph 117 as follows: Did the PHOs violate s. 2(

b) of the Charter? Yes. Did the PHOs violate ss. 2(

c) and 2(

d) of the Charter? Sections 2(

c) and 2(

d) are subsumed into the analysis of

section 2(b). Has Sask provided sufficient evidence to demonstrably justify the PHOs under s. 1 of the Charter? Yes. [33] In Grandel, I determined that the narrow exceptions to the rule of stare decisis set forth in Canada (Attorney General) vBedford, 2013 SCC 72, [2013] 3 SCR 1101 and R v Comeau, 2018 SCC 15 at para 26, [2018] 1 SCR 342 were not made out. I wassatisfied that the Charter applications filed by the accused persons had “no reasonable prospect of success”. As a result, I granted theAG Sask’s application for

summary dismissal of any NCQ’s (or portions of NCQ) before the Court related to ss. 2(b), (c), or (

d) of theCharter. [34] I remain of the same view. I adopt the written reasons I provided in Grandel. The Charter challenge before the Court in this

case is based upon ss. 2(

b) and (

c) of the Charter. Such a Charter Challenge was previously summarily dismissed in Grandel. I am ofthe view that as the Charter challenged based on ss. 2(

b) and (

c) has been previously decided by this Court and it cannot now berelitigated by Ms. Knoll or by Ms. Hagel. 2. Have the applicants established there has been a breach of their right to make full answer and defence as set out in

section 11(

d) of theCharter? [35] In R v J.J., 2022 SCC 28, 415 CCC (3d) 285 [J.J.] the Supreme Court set out the key principles of

section 11(

d) of the Charter asfollows: [123]

Section 11(

d) states that any person charged with an offence has the right "to be presumed innocent until proven guilty accordingto law in a fair and public hearing by an independent and impartial tribunal". The principles of trial fairness and the accused's right tomake a full answer and defence are expressions of procedural principles of fundamental justice under s. 7, and are also embodied in s.11(d) (R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at para. 15; Mills, at para. 69). [124] The key principles of s. 11(

d) that apply in the present case are as follows: (1) an individual must be proven guilty beyond areasonable doubt; (2) the state must bear the burden of proof; and (3) criminal prosecutions must be carried out in accordance with dueprocess (R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, at p. 121). [125]

Section 11(

d) does not guarantee "the most favourable procedures imaginable" for the accused, nor is it automatically breachedwhenever relevant evidence is excluded (Goldfinch, at para. 30; Quesnelle, at para. 64). As this Court affirmed in Darrach, an accused isnot "entitled to have procedures crafted that take only [their] interests into account. Still less [are they] entitled to procedures that woulddistort the truth-seeking function of a trial by permitting irrelevant and prejudicial material at trial" (para. 24). Nor is the broad principleof trial fairness assessed solely from the accused's perspective.

Crucially, as this Court stated in Mills, fairness is also assessed from thepoint of view of the complainant and community (para. 72, citing R. v. E. (A.W.), (SCC), [1993] 3 S.C.R. 155, at p. 198).We now turn to consider the constitutionality of each of the impugned provisions. [36] The applicants allege their right to make full answer and defence has been breached because they were unable to “fully read,comprehend, evaluate, properly consider and respond to” the AG Sask’s Brief of Law Re “Bill of Rights Challenges” which wasprovided to them on January 16, 2023.

The applicants take the position that as a result they were unprepared for the hearing of January18, 2023. The applicants also take the position that they were unclear as to the purpose of the hearing of January 18, 2023. [37] On December 2, 2022, the Court set aside the entire day of January 18, 2023 for any arguments the applicants Erinn Knoll andGeorge Seitz wished to make before the Court involving violations of their rights, including those under the Canadian Bill of Rights, theSaskatchewan Bill of Rights and the Saskatchewan Human Rights Code, 2018. Ms. Knoll and Mr.

Seitz filed written materials with theCourt in support of their application. On December 30, 2022, Christina Hagel also gave written notice to the Court that her rights underthe Canadian Bill of Rights, the Saskatchewan Bill of Rights and the Saskatchewan Human Rights Code, 2018 were violated. OnJanuary 4, 2023 the Court advised Ms. Hagel that any arguments she wished to make before the Court involving violations of her rights,including those under the Canadian Bill of Rights and the Saskatchewan Bill of Rights via the Saskatchewan Human Rights Code, 2018were to take place on January 18, 2023.

All parties were required to submit written materials in support of their arguments by January16, 2023. [38] In keeping with the direction of the Court on January 16, 2023 legal counsel for the AG Sask served and filed a 15 page writtendocument entitled Respondent’s Brief of Law Re “Bill of Rights” Challenges. [39] On January 18, 2023, Ms. Knoll, Mr. Seitz, Ms. Hagel and legal counsel for the AG Sask, Mr. Wernikowski appeared in court. The applicants did not indicate that they did not understand the purpose of the hearing. Nor did they indicate that they were unpreparedfor the hearing.

None of the applicants requested an adjournment of the hearing. As a result, the hearing proceeded. All of theapplicants made oral submissions. Legal counsel for the AG Sask also made oral submissions. The Court provided an oral decision. [40] Given the circumstances as set out above, it is difficult to understand how the procedure determined by the Court for the January18, 2023 hearing was unfair to the applicants or affected their ability to make full answer and defence. The applicants wanted the Courtto consider their applications. A day was set aside for the same.

Written materials received from the applicants and the AG Sask werereviewed by the Court. The Court was not advised by the applicants that they were unprepared for the hearing. At no time did the

applicants indicate they were unable to “fully read, comprehend, evaluate, properly consider and respond to” the AG Sask’s Brief of Law. Nor did the applicants request an adjournment of the hearing. The applications were heard and considered by the Court. [ 41 ] As the Supreme Court stated in J.J. : “

Section 11(

d) does not guarantee "the most favourable procedures imaginable" for the accused.” Nor, I might add can a Court read the mind of applicants. [ 42 ] I find that the applicants have not established that there has been a breach of their rights under ss. 11(

d) of the Charter. [ 43 ] In conclusion, the application before the Court is dismissed. _________________________ M. Hinds, J