His Majesty the King - v. –, 2023 SKPC 32

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 32 Date: May 3, 2023 Informations: 991213623, 991192864 and 991192882 Tickets: 85437645 and 85463943 Location: Regina Between: His Majesty the King - and – John Slastukin -and- Maxime Bernier, Mark L. Friesen, Cindy Gall, Conrad Goodsir, Tamara Lavoie, Nathan Peter Lynchuk, George Seitz, Luke D. Tournier, Michele R. Tournier, R. Brent Wintringham and Gerald Ferguson -and- Tanya Apodaca, Gerald S. Ferguson, Cindy Gall, Christina Hagel, Jasmin Rayann Grandel, Erinn Knoll, Brenda L.

Kriese, Tamara Lavoie, Edward Palmer Palchinski and John Slastukin Appearing: Bryan Carter For the Crown Theodore Litowski For the Attorney General of Saskatchewan

Luke Coupal For the Accused, Slastukin, Gall, and Lynchuk Elaine Anderson For the Accused, Bernier, Ferguson, Friesen, Wintringham and Slastukin DECISION RESPECTING SS. 2(

c) AND S. 7 CHARTER CHALLENGES, VAGUENESS AND OVERBREADTH M. HINDS, J Introduction [ 1 ] John Slastukin is charged that on May 1, 2021 at Regina, Saskatchewan he did fail to comply with a Public Health Order (PHO) by being involved in a public or private outdoor gathering of people exceeding 10 persons, contrary to

section 61 of The Public Health Act, 1994 , SS 1994, c P-37.1 [ The Public Health Act, 1994 ]. This charge is set out in Ticket 85437645. The evidentiary portion of this trial was heard on February 17, 2023. [ 2 ] Maxime Bernier, Mark L. Friesen, Cindy Gall, Conrad Goodsir, Tamara Lavoie, Nathan Peter Lynchuk, George Seitz, Luke D. Tournier, Michelle R. Tournier, R. Brent Wintringham and Gerald S. Ferguson are charged that on or about May 8, 2021 at Regina, Saskatchewan they did fail to comply with a PHO by attending a gathering exceeding 10 people, contrary to

section 61 of The Public Health Act, 1994 . This charge is set out in Information 991213623 and 991192864 and Ticket 85463943. The evidentiary portion of this trial took place before me on March 6, 2023. [ 3 ] Tanya Apodaca, Gerald S. Ferguson, Cindy Gall, Christina Hagel, Jasmin Rayann Grandel, Erinn Knoll, Brenda L. Kriese, Tamara Lavoie, Edward Palmer Palchinski and John Slastukin are charged that on or about May 15, 2021 at Regina, Saskatchewan they did fail to comply with a PHO by attending a gathering exceeding 10 people, contrary to

section 61 of The Public Health Act, 1994 . This charge is set out in Information 991192882. The evidentiary portion of this trial took place before me on March 20 and 21, 2023. [ 4 ] On January 5, 2023 Mr. Coupal filed a Notice of Constitutional Question (NCQ) with respect to John Slastukin - Ticket 85437645. Mr. Slastukin challenged the validity of section 4(1) of the material PHO or any similarly worded material order on the basis it breaches his Charter rights, namely: a.

Section 2(

c) freedom of peaceful assembly; and b.

Section 7 liberty. The NCQ also indicated it would be necessary to consider vagueness and overbreadth as principles of fundamental justice. [ 5 ] On February 28, 2023, Mr. Coupal filed nearly identical NCQs with respect to: (

a) Cindy Gall and Nathan Lynchuk – Informations 991213623 and 991192864. (

b) Cindy Gall and Edward Palmer Palchinksi – Information 991192882. It is noted, however, that the Crown stayed the charge against Mr. Palchinski on March 21, 2023.

[ 6 ] The following accused represented by Ms. Anderson also joined in the NCQ: (

c) Maxime Bernier, Mark L. Friesen, R. Brent Wintringham – Information 991213623 and Gerald Ferguson – Ticket 85463943. (

d) John Slastukin – Information 991192882. [ 7 ] Collectively the accused referred to in paragraphs 4, 5, and 6, as set out above, challenge the validity of the material PHOs giving rise to the charges before the Court on the basis that they breach their freedom of peaceful assembly under ss. 2(

c) and their right of liberty under

section 7 of the Charter. The accused also argue the PHOs are vague and overly broad.

Section 2(

c) Charter Challenge [ 8 ] This is not the first time individuals charged with failing to comply with a PHO by attending a gathering exceeding 10 people, contrary to

section 61 of The Public Health Act, 1994 have alleged that the PHOs violate their Charter freedom of peaceful assembly under

section 2(

c) and have taken the position that such a breach of

section 2(

c) of the Charter is not saved under

section 1 of the Charter. [ 9 ] In Grandel and Mills v Saskatchewan and Dr. Saqib Shahab , 2022 SKKB 209 [ Grandel and Mills ] the applicants alleged that the 10 person gathering limit then in force pursuant to PHOs issued pursuant to The Public Health Act , 1994 was contrary to ss. 2(b), (

c) and (

d) of the Charter. In addition, they argued that any limits on those Charter rights could not be justified under s. 1 of the Charter . That application was argued before Justice Konkin of the Court of King’s Bench on June 29, 2022. On September 20, 2022, Justice Konkin provided his decision in Grandel and Mills . He dismissed the application. He concluded at para 117 as follows: 1. Did the PHOs violate s. 2(

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

c) and 2(

d) of the Charter ? Subsections 2(

c) and 2(

d) are subsumed into the analysis of

section 2(b). 3. Has Sask provided sufficient evidence to demonstrably justify the PHOs under s. 1 of the Charte r? Yes. [ 10 ] In R v Grandel, 2022 SKPC 48 [ Grandel I ] a NCQ was filed with this Court on behalf of several individuals including some of the applicants in this proceeding (Ms. Gall, Mr. Slastukin, Mr. Friesen, Mr. Bernier, Mr. Wintringham and Mr. Ferguson) alleging that certain outdoor gathering limits were contrary to ss. 2(b), (

c) and (

d) of the Charter and that any limits were not justified by s.1 of the Charter. The Attorney General of Saskatchewan (AG Sask) brought an application to this Court to summarily dismiss the portions of the NCQ’s relating to outdoor gathering restrictions based on ss. 2(b), (

c) and (

d) of the Charter. I determined that the decision in Grandel and Mills is a constitutional ruling from a higher court on the same issues before me at that time. Hence, I was bound by the doctrine of vertical stare decisis , and as a result I followed the decision in Grandel and Mills . In addition, I found that the narrow exceptions to the rule of stare decisis set forth in Canada (Attorney General) v Bedford , 2013 SCC 72 , [2013] 3 SCR 1101 [ Bedford ] and R v Comeau , 2018 SCC 15 at para 26 , [2018] 1 SCR 342 were not made out.

In particular, I concluded that a new legal issue had not been raised and the law had not undergone “significant developments” since the decision in Grandel and Mills . In addition, I found that there had not been a change in circumstances or evidence that fundamentally shifted the parameters of the debate. I was satisfied that the Charter applications filed by the accused persons had “no reasonable prospect of success”. As a result, I granted the AG 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 the Charter. [ 11 ] I adopt the written reasons that I provided in Grandel I . In this case I also find that the narrow exceptions to the rule of stare decisis have not been made out. The Charter challenge based on ss. 2(b), (

c) and (

d) was previously summarily dismissed in Grandel I . The Charter challenge before the Court in this case is based upon ss. 2(

c) of the Charter. I am of the view that the Charter challenge based on ss. 2(

c) has no merit. It has been previously decided by this Court following vertical stare decisis and it cannot now be re- litigated.

Section 7 Charter Challenge & Vagueness [12] This is also not the first time individuals charged with failing to comply with a PHO by attending a gathering exceeding 10people, contrary to

section 61 of The Public Health Act, 1994 have alleged that PHOs violate their Charter right to liberty under section7 and are vague. [13] In R v Grandel, Friesen, Wipf and Lavoie, 2023 SKPC 12 [Grandel II]. Ms. Anderson acting as legal counsel for those accusedfiled a NCQ with the Court alleging that ss. 25.2(2) of The Disease Control Regulations, RRS c P-37.1 Reg 11 [repealed] [Regulation]and related public health orders violate

section 7 of the Charter and are therefore invalid and inoperable. The particulars of the Charterchallenge in Grandel II were as follows: (1) the impugned provisions deprive them of the right to move freely (see R v Heywood, (SCC), [1994] 3 SCR 761[Heywood] at para 789) (2) the impugned provisions deprived them of the right to make “inherently private choices” that go to the core of what it means toenjoy individual dignity and independence” (see Godbout v Longueuil (City), (SCC), [1997] 3 SCR 844 [Godbout] atpara 66) (3) the impugned provisions are unconstitutionally vague. [14] In the present case the applicants challenge the validity of sections 1(

d) and 4(

c) of the PHOs dated April 27, 2021 and May 6,2021 which permits public and private outdoor gatherings up to 10 persons and by necessary implication prohibits public and privateoutdoor gatherings over 10 persons. [15] The present

section 7 Charter challenge cites the same three particulars as were presented in Grandel II (see paragraph 13,above). It does, however, add one additional particular – “Overbreadth in that the provision “outlaws” more than necessary to achieveits public aim.” [16] In Grandel II, I first of all determined that the applicants had not established the impugned PHOs which prohibit public andprivate outdoor gatherings exceeding 10 persons, a breach of which results in a fine – engage any

section 7 Charter interest and inparticular a liberty interest. Secondly, in the event the impugned PHOs engaged a

section 7 Charter interest, I determined it does so in amanner consistent with the principles of fundamental justice. I found it is not unconstitutionally vague. [17] I adopt the written reasons I provided in Grandel II. I find that the accused applicants have not established the impugned PHOsengages a

section 7 liberty interest. Secondly, in the event this Court had determined the PHO engaged a

section 7 Charter interest, Ifind it does so in a manner consistent with the principles of fundamental justice. It is not unconstitutionally vague. Nor for the reasonsset out below is it unconstitutionally overbroad. [18] In R v Wong, 2023 SKPC 9 [Wong] my brother Judge Agnew also concluded that separate and apart from an argument based onsection 7 of the Charter, that a similar PHO was not unconstitutionally vague. The applicants argue that Judge Agnew’s decision inWong should not be followed based upon “nuanced fact patterns” offered for the Court’s consideration. This is the wrong approach.

Theconstitutionality of the PHO is a question of law, not a question of fact. The applicants did not make any attempt to address the three-part test in R v Sullivan, 2022 SCC 19, 413 CCC (3d) 447 which states as follows at paragraph 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. [19] None of the circumstances apply in this case. I am of the view that the decision in Wong is binding upon me and I intend tofollow it as a matter of judicial comity. Additional Issues

[20] The additional issues to be determined are as follows:

(1) Should the Court revisit its decision of December 2, 2022 where the Court granted the AG Sask’s application for

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

d) of the Charter.

(2) Should the Court revisit its decision of January 19, 2023 where the Court determined that the impugned Regulation and PHO –which prohibits public and private outdoor gatherings exceeding 10 persons, a breach which results in a fine, does not engage any section7 Charter interest and in particular a liberty interest. The Court further determined that the impugned Regulation and PHO was notunconstitutionally vague. [21] 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. [22] In Canadian Broadcasting Corp. v Manitoba, 2021 SCC 33, 461 DLR (4th) 635 the Supreme Court had occasion to discussAdams as follows at paragraphs 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 dismissedthe 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. [23] I am of the view that the applicants have not established that a material change of circumstances has occurred since the Court’sdecision of December 2, 2022 set out in Grandel I and the Court’s decision of January 19, 2023 set out in Grandel II.

Nor am Ipersuaded that these decisions were made without relevant submissions from an affected party. As has been said previously, it isapparent that the applicants are dissatisfied with the Court’s decisions in these cases. They may wish to appeal these decisions to ahigher court. However, they may not relitigate the issues a second time in this Court. Overbreadth [24] Although there were no oral submissions on this argument I will nonetheless address it. [25] Bedford is the leading case on overbreadth. In Bedford, the Supreme Court stated at paragraphs 112 -113 as follows:

[112] Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part . At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some , but not all, of its impacts . For instance, the law at issue in Demers required unfit accused to attend repeated review board hearings.

The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose. [113] Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others . Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law's purpose.

For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual . Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter . [emphasis added] [ 26 ] I agree with the AG Sask when it states in its brief that “the approach taken to access overbreadth focuses on the relationship between the law’s purpose and its effects”.

One must first determine the impugned law’s purpose, and then determine whether the law impacts some individuals or affects some conduct in a manner that bears no connection to this purpose. [ 27 ] In Bedford at paragraph 119 , the Supreme Court has said the “ no connection ” standard is strict and “not easily met”: there must be a total absence of connection between the law’s effects and its objective. [ 28 ] In Grandel and Mills at paragraphs 90 – 91 Justice Konkin of the Court of King’s Bench concluded that the purpose of the 10 person outdoor gathering limit was to prevent, reduce and control the transmission of COVID-19.

I agree with this conclusion. [ 29 ] Several of the paragraphs of the “Whereas” portion of the PHOs of April 27, 2021 and May 6, 2021 speak to the serious public health situation in Saskatchewan and in particular the city of Regina respecting the transmission of the infectious agent SARS-CoV-2, which had caused cases and outbreaks of a serious communicable disease known as COVID-19 among the population of Saskatchewan. COVID -19 is a serious health threat as defined in The Public Health Act, 1994 .

The measures outlined in the PHOs were considered necessary to decrease or eliminate the risk to health presented by COVID-19. At that time multiple SARS-CoV-2 variants of concern had emerged worldwide and were present in Canada and Saskatchewan. These variants of concern were more transmissible than previously known variants and were more likely to cause serious illness or death. As of April 26, 2021, Regina accounted for just over one-third (35%) of Saskatchewan’s total active COVID-19 cases.

Also as of April 26, 2021, 6,446 cases of variants of concern had been detected in Saskatchewan. 3,637 of these cases were reported in Regina and the surrounding area. Variants of concern accounted for the majority of active COVID-19 cases in Regina. As of May 5, 2021, 7,848 cases of variants of concern had been detected in Saskatchewan. 4,168 of these cases were reported in Regina and the surrounding area. Variants of concern accounted for the majority of active COVID -19 cases in Regina. As of May 6, 2021, Regina accounted for just over one-quarter (27%) of Saskatchewan’s total active COVID-19 cases.

A person infected with SARS-CoV-2, including a variant of concern, could infect other people with whom the infected person is in contact. The gathering of people in close contact with one another could promote the transmission of SARS-CoV-2, including variants of concern, and increase the number of people who develop COVID-19. [ 30 ] Given this uncontradicted evidence, I am of the view that there is a clear connection between the purpose of the outdoor gathering limits and its effects.

As COVID-19 could be transmitted through gatherings of people in close contact with one another, limiting gathering sizes helped control the spread of COVID-19. As a result, I find that the impugned PHO is not overbroad. Conclusion [ 31 ] I am of the view that the Charter challenge based on

section 2(

c) has been previously decided by this Court and it cannot now be re-litigated. In addition, I am of the view that the impugned PHOs do not engage a

section 7 Charter liberty interest. If I had determined a liberty interest was engaged, I am of the view the PHOs do so in a manner consistent with the principles of fundamental justice. The PHOs are not unconstitutionally vague nor are they overbroad.

___________________________ M. Hinds, J