Dubois v Saskatchewan, 2022 SKCA 100

Court of Appeal for Saskatchewan Docket: CACV3314 Citation: Dubois v Saskatchewan , 2022 SKCA 100 Date: 2022-09-15 Between: Richelle Dubois, Gaylene Henry, Constance Dubois, Prescott Demas, Dinah-Mae Papequash and Shannon Corkery Appellants (Applicants) And Government of Saskatchewan, Provincial Capital Commission and Regina Police Service Respondents (Respondents) And Prescott Demas, John Doe, Jane Doe, and Other Persons operating as and in support of “Justice for our Stolen Children” in Regina, Saskatchewan Appellants (Respondents) And His Majesty the King in Right of Saskatchewan as represented by the Government of Saskatchewan and the Provincial Capital Commission Respondents (Applicants) And The Chief of Police of the Regina Police Service, Evan Bray Non-Party (Respondent) Before: Richards C.J.S., Whitmore and Schwann JJ.A.

Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Schwann On appeal from: 2018 SKQB 241 , Regina Appeal heard: April 8, 2022 and June 29, 2022 Counsel: Daniel LeBlanc (on April 8, 2022) and Bonnie Missens, K.C. (on June 29, 2022) for the Appellants Jared Biden for the Government of Saskatchewan and Provincial Capital Commission Dana Brûlé for the Attorney General of Saskatchewan Aaron Fox, K.C., and Lauren Wihak for Regina Police Service Richards C.J.S. I.

INTRODUCTION [ 1 ] A number of individuals were concerned about the plight of Indigenous children and other serious social justice issues affecting Indigenous people. This led them to express their collective views by establishing what might be called a protest camp near the Legislative Building in Wascana Centre, a Regina park.

The establishment and maintenance of the camp did not comply with the bylaws of the Provincial Capital Commission [Commission], the agency with administrative authority over Wascana Centre. [ 2 ] The protesters ignored a notice posted pursuant to The Trespass to Property Act , SS 2009, c T-20.2 , to vacate the area being occupied and the camp was ultimately dismantled by the Commission with the assistance of the Regina Police Service.

The appellants were arrested in the course of that exercise and held in custody for several hours before being released without charge. [ 3 ] The appellants then sought declarations from the Court of Queen’s Bench that their freedom of expression and their right to be free from arbitrary detention and imprisonment, as guaranteed by ss. 2(

b) and 9 of the Canadian Charter of Rights and Freedoms , had been denied. Their application was dismissed by a Queen’s Bench judge sitting in Chambers: Dubois v Saskatchewan , 2018 SKQB 241 , 418 CRR (2d) 25 [ Dubois ]. [ 4 ] The appellants now appeal the Queen’s Bench decision to this Court, arguing that the Chambers judge erred in denying the relief they had sought.

They say she improperly reversed the onus of proof involved in the analysis required under s. 1 of the Charter , wrongly failed to factor reconciliation into her s. 1 reasoning and made unsustainable findings of fact in respect of the reason for their arrest and detention. [ 5 ] This case, of course, is concerned only with the strength of the specific legal arguments advanced by the appellants. It is not about the merits, one way or the other, of the various issues and concerns raised by the appellants through their camp.

As explained below, the appellants’ submissions cannot succeed and, as a result, this appeal must be dismissed.

II. BACKGROUND A. The camp [ 6 ] Wascana Centre is a park located in the heart of the City of Regina. It is owned by His Majesty the King in Right of Saskatchewan and administered by the Commission pursuant to The Provincial Capital Commission Act , SS 2017, c P-30.011 [ Commission Act ]. [ 7 ] A large greenspace known as the Queen Elizabeth II West Lawn [West Lawn] is situated north of the Legislative Building and south of Wascana Lake. It falls within the boundaries of Wascana Centre. [ 8 ] On February 28, 2018, a number of Indigenous persons set up a camp on the West Lawn.

It involved round-the-clock occupation of some of that space. The appellants accept the Chambers judge’s conclusion that the camp was established to “highlight the failings of the judicial, political and other societal systems with respect to the treatment of Aboriginal people…for some of the core protesters the dissent is rooted in personal grief and the incalculable loss of a child or children” (at para 9). [ 9 ] The camp included a traditional teepee [Teepee] with an interior fire pit. The protesters referred to that fire as a “sacred fire”.

Over time, the camp grew to include numerous teepees and smaller tents, barbeques and related items. B. The relevant legislative provisions [ 10 ] The Commission is authorized to make bylaws pursuant to s. 3 - 1(1) (

t) of the Commission Act . There were bylaws in place when the camp was established. They provided as follows with respect to matters bearing on the current proceedings: Bylaw 3 - Conduct of Persons 3. Except as may be authorized by the authority or the director, either in writing or by an erected sign, no persons shall, save within a building: … (

b) start, make or kindle a fire within the centre for any purpose; … (

n) engage in any activity within or enter upon and make use of any area that is contrary to a sign prohibiting, restricting or otherwise limiting such activity or use therein or thereon erected by or on behalf of the authority. … Bylaw 8 - Licensing of Commercial Activities 8. … (

e) Except as may be authorized in writing by the authority or director no person shall erect any booth, tent, stall or other structure for any purpose whatsoever on any land within the Centre. [ 11 ] On June 21, 2018, the Commission introduced an additional bylaw. It is set out below: Bylaw 27 - Permitted and Prohibited Uses 27. (

a) No person shall carry on the following activities in Wascana Centre without a permit: (

i) Assume exclusive use of all or a portion of Wascana Centre; (ii) Leave or store personal property in an outdoor space; or (iii) Set up a shelter, tarp, canopy or other such device. … (

c) No person in Wascana Centre shall: … (ii) Establish or maintain a camp, or erect or maintain a tent or other shelter for use as lodging. [ 12 ] I will refer to the version of the Commission’s bylaws that was in place in 2018 as the “Bylaws”. [ 13 ] The Commission Act contemplates court orders being made to ensure compliance with the Commission’s bylaws: 7-7(1) This

section applies if an improvement is made or land is used in contravention of this Act, the master plan or a bylaw of the commission.

(2) The commission or a participating party may apply to a judge of the Court of Queen’s Bench for all or any of the following: (

a) an order directing the owner of the improvement to remove it at the owner’s expense; (

b) an order restraining the person making the unlawful use of land from continuing the unlawful use. … 7-11(1) The commission may apply to a judge of the Court of Queen’s Bench for all or any of the following: (

a) an order compelling a person to comply with this Act, the regulations, the bylaws of the commission, a provision of any approval or a term or condition of any approval[.] [ 14 ] The Trespass to Property Act also plays into this case. In key part, as it read at the time, the Act said this: 3(1) Without the consent of the occupier of a premises, no person who is not acting under a right or authority conferred by law shall: … (

d) after being requested either orally or in writing by the occupier to stop engaging in an activity in or on the premises, fail to stop the activity as soon as is practicable; … 5(1) A peace officer may do all or any of the things mentioned in subsection (2) if: … (

b) a person is engaged in an activity in or on premises that is prohibited pursuant to this Act.

(2) In the circumstances mentioned in subsection (1), a peace officer may do all or any of the following: … (

c) request, either orally or in writing, a person engaged in an activity in or on the premises to stop engaging in that activity.

(3) No person shall fail to comply with a request of a peace officer made pursuant to this section. … 12 A peace officer may arrest without warrant any person found in or on premises if the peace officer believes on reasonable grounds that the person is contravening any provision of this Act. [ 15 ] The Recovery of Possession of Land Act , RSS 1978, c R-7 [ Recovery of Land Act ], should also be noted. Section 3(1) of that Act establishes a process by which a court can be asked for an order directing that land be vacated.

It reads as follows: 3(1) If a person refuses or fails to cease using or occupying land that he or she is wrongfully or without lawful authority using or occupying, the person entitled to possession may, on affidavit of the facts, apply without notice to a judge of the Court of Queen’s Bench sitting at the judicial centre nearest to which the land is situated for an order granting the person entitled to possession leave to serve an application directed to the person in possession and returnable before the judge at the time and place that may be fixed by the order, requiring the person to whom the application is directed to show cause why an order should not be made for his or her removal from the land, and to compel him or her to vacate it, and to cease using or occupying it.

C. The dismantling of the camp [ 16 ] The protesters were advised of the Wascana Centre’s permitting process but they did not apply for a permit. [ 17 ] The Commission served a letter on the protesters on February 28, 2018. It amounted to an eviction notice, stating that overnight camping in Wascana Centre was not permitted and that all structures erected by the protesters had to be removed. The protesters did not comply. [ 18 ] On June 2, 2018, the Commission posted a notice [Trespass Notice] at the camp pursuant to s. 3(1) (

d) of The Trespass to Property Act . The Trespass Notice directed the protesters to discontinue the following activities: (

a) overnight camping; (

b) erecting tents or any other structures; and (

c) burning wood or other combustibles within Wascana Centre. The protesters did not comply with the Trespass Notice. [ 19 ] On June 15, 2018, employees of the Commission and the Ministry of Central Services, with the assistance of the Regina Police Service, began to dismantle the camp. However, a verbal agreement was reached with the protesters to allow the Teepee to remain on site until noon on June 17, 2018. This was done, in part, to allow the Teepee to be taken down, and the sacred fire extinguished, in a culturally appropriate manner.

The protesters did not dismantle the Teepee as agreed. [ 20 ] On June 18, 2018, Commission employees attended the camp with members of the Regina Police Service. The situation was emotionally charged. Several individuals refused to leave the Teepee. Six protesters, the appellants Richelle Dubois, Gaylene Henry, Constance Dubois, Prescott Demas, Dinah-Mae Papequash and Shannon Corkery, were arrested. They were held in police cells for approximately four hours, until the Teepee had been taken down. They were then released without charge.

D. Subsequent developments [21] On June 20 and 21, 2018, the Commission posted signs on the West Lawn. The signs stated: Prohibited Within Wascana Centre Unless Authorized: • Using the park as lodging between the hours of 23:00 to 05:00 • Erecting, maintaining or using any tent, shelter or other structure • Starting, making or kindling fire [22] The protesters re-established the encampment on the West Lawn on June 21, 2018, coinciding with National IndigenousPeoples Day. The Commission sought assistance from the Regina Police Service.

The Police said they would refrain from furtherinvolvement unless they were asked to enforce a court order. E. The applications to the Court of Queen’s Bench [23] On June 25, 2018, the Government of Saskatchewan, on behalf of His Majesty the King, and the Commission applied for leaveto commence an action under the Recovery of Land Act. Leave was granted on June 26, 2018, but the application did not go forward andwas discontinued in order to allow the opportunity for talks with the protesters.

The talks were held, but the encampment remained inplace. [24] On July 16, 2018, the appellants filed an originating application seeking declarations that the dismantling of the camp and theirarrest and detention on June 18, 2018, had unjustifiably infringed their freedom of expression and their right to be free of arbitrarydetention, as guaranteed by ss. 2(

b) and 9 of the Charter. By way of particulars, the appellants pled that the primary purpose of the camphad been to express concerns about the treatment of Indigenous youth and children and that the Teepee and the sacred fire were part of thismessage. The originating application made no reference to the Bylaws. The appellants’ prayer for relief was framed as follows: 18. The Applicants therefore seek the following remedy: a. A Declaration that the Applicants’ right to Freedom of Expression pursuant to s. 2(

b) of the Charter was unjustifiably infringed by theRespondents’ decision to arrest them and dismantle the Camp on June 18, 2018; and b. A Declaration that the Applicants’ right to be free of Arbitrary Detention or Imprisonment pursuant to s. 9 of the Charter wasunjustifiably infringed by the Respondents’ decision to arrest them on June 18, 2018. [25] On July 17, 2018, the Government and the Commission filed a fresh application. For its part, the Government sought an orderpursuant to s. 3(1) of the Recovery of Land Act requiring the protesters to vacate and cease occupying the West Lawn.

The Commissionasked for an order pursuant to ss. 7-7 and 7-11 of the Commission Act compelling the protesters to comply with the Bylaws. [26] The appellants then notified the Attorneys General of Canada and Saskatchewan that they intended to argue that s. 3 of theRecovery of Land Act and ss. 3, 8 and 27 of the Bylaws were constitutionally invalid. F.

The decision of the Chambers judge [27] The Chambers judge dealt at the same time with both the appellants’ application for a declaration that their Charter rights hadbeen infringed and with the application that had been filed by the Government and the Commission with respect to the Recovery of LandAct and the Commission Act. [28] The Chambers judge began her decision by outlining the facts that underpinned the matters before her and by reviewing someof the relevant legal background, including The Trespass to Property Act, the Commission Act and the Bylaws.

Then, noting that theappellants had challenged s. 3 of the Recovery of Land Act and ss. 3, 8 and 27 of the Bylaws as violating s. 2(

b) of the Charter, she turnedto an analysis of that issue. In this regard, the Chambers judge began with the respondents’ concession that the maintenance of the Teepeeand the sacred fire had involved expressive activity. That done, she had little difficulty concluding, at paragraph 122, that “[t]heGovernment’s actions are…restrictive of the protesters’ freedom of expression”. [29] The Chambers judge then took up the question of whether these limitations on freedom of expression were reasonable andjustifiable under s. 1 of the Charter as per the Oakes test (R v Oakes, (SCC), [1986] 1 SCR 103 [Oakes]).

That caseprovides that, in order to be sustained as a reasonable limitation of rights as per s. 1 of the Charter, the limitation must be prescribed bylaw, involve an objective that is sufficiently important to warrant a restriction of rights and be proportionate.

The issue of proportionalityinvolves consideration of whether the limiting measure is rationally connected to the objective, whether it impairs the right in question aslittle as possible, and whether there is proportionality between the importance of the objective and the deleterious effects of the limitingmeasure. [30] Perhaps because of the way in which the case had been presented to her, the Chambers judge undertook the required s. 1analysis in a way that did not differentiate or distinguish between and among the Bylaws, The Trespass to Property Act and the Recoveryof Land Act or, for that matter, make express reference to any of them.

Rather, she proceeded with a generalized examination of thequestion of whether the restrictions on freedom of expression experienced by the protesters were justifiable. In the course of that analysis,she effectively combined the considerations relevant to the Recovery of Land Act, The Trespass to Property Act and the Bylaws. [31] Working through the Oakes approach, the Chambers judge began with the question of whether the limitations on the protesters’freedom of expression were prescribed by law.

On this point, at paragraph 132, she said simply that “[t]his is conceded” withoutindicating whether she was referring to The Trespass to Property Act, the Recovery of Land Act, the Bylaws, or all three. She then notedthat the issue of whether the s. 2(

b) limitations had been effected for a pressing and substantial objective had also been conceded. Again,

there was no indication as to whether the objectives in issue were those underlying The Trespass to Property Act , the Recovery of Land Act , the Bylaws or all of them. Next, dealing with the minimal impairment wing of the Oakes test, the Chambers judge quoted from a number of authorities including Abbotsford (City) v Shantz , 2015 BCSC 1909 , 392 DLR (4th) 106. In that case, Hinkson C.J.S.C. had said, at paragraph 197, “Although public property is held in trust for the public, the right to access and use public spaces is not absolute”. [ 32 ] In conclusion on the s. 2 (

b) issue, and at the end of her Oakes analysis, the Chambers judge wrote as follows: [149] The protesters’ claim to a right to encamp around the clock, on a permanent or indefinite basis, on the location of the West Lawn, is not one that can be endorsed by this court. In terms of normative values, society has achieved more through order than disorder, more through respect for the law than disregard for the law’s application. The Government is applying the instrument of the law to prevent disruption to public services and resources, and fair allotment of those resources through the permit process.

The protesters’ occupation of the West Lawn, in the shadow of the most influential building in the province, although claimed in pursuit of heartfelt grievances, serves in the end to diminish the rights of all others to access the space and to enjoy the same fundamental freedoms and values claimed by the occupiers. [150] The application of the Government and the Commission is allowed. The order requested will issue in terms of the draft order submitted. [ 33 ] In the end, the Chambers judge ordered that the protesters were required to vacate the West Lawn unless and until otherwise authorized by the Commission.

She also ordered that the protesters were restrained from unlawfully using any land within Wascana Centre in contravention of the Bylaws and directed that they abide by any restrictions relating to the establishment or maintenance of a camp. Given the nature of this order, it must be concluded that the Chambers judge found no Charter problem with the Recovery of Land Act , The Trespass to Property Act or the Bylaws or with the application of either of them in the circumstances at hand. [ 34 ] The Chambers judge then went on to consider the legality of the appellants’ arrests.

She began by noting that two of the affidavits filed by police officers said the arrests had been for “obstruct justice”, a possible or presumable reference to s. 139 of the Criminal Code and the offence of obstructing, perverting or defeating justice in the course of a judicial proceeding . However, she also pointed out that the senior officer on the scene at the time of the arrests had deposed in his affidavit that the arrests had been for “obstructing a peace officer” contrary to s. 129 of the Criminal Code , i.e., resisting or wilfully obstructing a peace officer in the execution of the officer’s duty.

The Chambers judge ultimately held that, even if there might have been some loose use of the word “justice” in the course of the arrests, they had clearly been effected under s. 129 of the Code and were therefore lawful. [ 35 ] The Chambers judge also found that the detention of the appellants until the Teepee had been dismantled and the sacred fire extinguished was not arbitrary in light of: (

a) their refusal to provide information about the nature of a culturally appropriate and respectful way of dismantling the Teepee because this had meant additional time had been needed to acquire that information; and (

b) the fact that additional logs had been added to the sacred fire at the last moment, meaning that the fire continued to burn for an additional five hours. [ 36 ] In light of this analysis, the Chambers judge dismissed the appellants’ application for declaratory relief. G. The new bylaws and the mootness issue [ 37 ] On March 8, 2021, the Commission repealed the Bylaws and replaced them with an interlocking set of new bylaws called the Framework Bylaw, the Permit Bylaw, and the Park and Open Spaces Bylaw.

Their particulars are of no real relevance to the issues that must be considered in this appeal. [ 38 ] In light of the repeal of the Bylaws and their replacement with the new bylaws, the respondents applied to have this appeal quashed on the basis that it had become moot. Their application was dismissed because, notwithstanding the repeal of the Bylaws, there were still live issues with respect to the alleged violations of both s. 2(

b) and s. 9 of the Charter : Dubois v Saskatchewan , 2022 SKCA 15 , 467 DLR (4th) 651. III. ISSUES [ 39 ] On October 4, 2018, the appellants filed a notice of appeal in which they catalogued a number of errors allegedly committed by the Chambers judge. By way of relief, they reiterated their request for declarations that their ss. 2(

b) and 9 Charter rights had been infringed. They also asked for a declaration that the relevant parts of the Bylaws violated s. 2(

b) of the Charter . All of this was framed as follows: 5. Therefore, the Appellant [ sic ] requests the following relief: a. That the Learned Judge’s September 7, 2018 decision be quashed in its entirety. b. A declaration from the Court that the June 18, 2018 actions of Government and Police unjustifiably interfered with the Appellants rights pursuant to s. 2(

b) of the Charter . c. A declaration from the Court that the Police’s June 18, 2018 decision to arrest and detain the Appellants unjustifiably interfered with their right to be free of arbitrary detention or arrest pursuant to s. 9 of the Charter . d. A declaration that Bylaws 3, 8 and 27 of the Wascana Centre Bylaws are inconsistent with the freedom of expression enshrined in s. 2(

b) of the Charter and are therefore of no force or effect. [ 40 ] The appellants acknowledge that, in light of the repeal of the Bylaws, the issues concerning their validity, as per clause (

d) of their notice of appeal, are moot. At the end of the day and as clarified in oral argument, the appellants make three central arguments as to

why their appeal should be allowed. They submit the Chambers judge erred by: (

a) reversing the onus of proof when conducting the analysis required by s. 1 of the Charter; (

b) failing to factor reconciliation into the analysis required by s. 1 of the Charter; and (

c) making improper findings of fact with respect to the reason for their arrest and detention. IV. ANALYSIS [41] I will address each of the appellants’ arguments in turn. A. Reversing the onus of proof [42] A law that infringes a right or freedom guaranteed by the Charter will be sustained only if it meets the so-called “Oakes test”.That test involves four criteria: (

a) there must be a sufficiently important objective to warrant the limitation of a right; (

b) the law must berationally connected to the objective; (

c) the law must impair the right as little as possible to accomplish the objective; and (

d) the effect ofthe law must not be disproportionally severe relative to its objective. The party seeking to uphold a law found to have infringed a Charterright or freedom bears the burden of satisfying this test. See: Oakes at 136–137. [43] The appellants submit that, in considering the Charter issues presented to her, the Chambers judge reversed the s. 1 onus in the“minimal impairment” part of her analysis. In this regard, they point to paragraph 140 of her decision.

There, the Chambers judge wrote asfollows: [140] Further, in [Calgary (City) v Bullock (Occupy Calgary), 2011 ABQB 764, 545 AR 5], the existence of a permit application processwhereby applicants could obtain permission to camp or erect structures precluded any effort to categorize the bylaws as an absoluteprohibition: Bullock, para 43. Here, the permit process is an open, accessible invitation to all users of the Park. It fosters sensible planning,promotes safety, and mediates competing demands on the Park’s use.

Further, the prohibition is only restrictive in an absolute sense withrespect to night-time hours, between 11:00 p.m. and 5:00 a.m. What would constitute less restrictive measures was not a case put forwardfor the court’s consideration, nor is the court able to fathom any on its own initiative. As in Bullock, the measures in the present case areminimally impairing. (Emphasis added) [44] I do not read the underlined part of this passage as involving a reversal of the onus of proof.

The Chambers judge was wellaware that the burden of establishing the reasonableness of any limitation of rights was carried by the respondents. Indeed, she began the“minimal impairment” part of her judgment by quoting Supreme Court authority on that very point.

She said this: [135] “If the law falls within a reasonable range of alternatives, the courts will not find it overbroad merely because they can conceive ofan alternative which might better tailor objective to infringement. … On the other hand, if the government fails to explain why asignificantly less intrusive and equally effective measure was not chosen, the law may fail”: RJR Macdonald Inc. v Canada (AttorneyGeneral), (SCC), [1995] 3 SCR 199 at para 160. (Emphasis added) [45] At paragraph 140 of her decision, the Chambers judge did no more than comment on the nature of the record and thearguments that had been presented for her consideration and add that, thinking independently, she was unable to see a less restrictivealternative.

She did not say or imply that she was finding against the appellants on the minimal impairment issue because they had failed toestablish that the limitations imposed on their s. 2(

b) rights were not the least restrictive way of achieving the objective in issue. [46] This line of the appellants’ argument cannot succeed. B. Failing to consider reconciliation [47] The appellants also contend that the Chambers judge erred by failing to consider the issue of reconciliation and, morespecifically, by failing to consider their efforts to effect reconciliation, in the analysis required pursuant to s. 1 of the Charter. Theyemphasize that the camp did not exclude people but, rather, was aimed at educating the public about the problems faced by the Indigenouscommunity. In her submissions, Ms.

Missens went so far as to say that reconciliation is “paramount”. [48] “Reconciliation” is a broad concept with no fixed legal meaning. In keeping with how the term was used by the Truth andReconciliation Commission, it typically is taken as referring broadly to the establishing and maintaining of a mutually respectfulrelationship between Indigenous and non-Indigenous peoples. See: Truth and Reconciliation Commission of Canada, Honouring theTruth, Reconciling the Future:

Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Toronto: Lorimer,2015) at 6. That said, the answers to the questions of what can or should constitute the particulars of reconciliation efforts and what doesor does not effectively advance reconciliation are much less clear. [49] The appellants ground their argument about reconciliation in paragraph 142 of the Chambers judge’s decision. They submit thatit shows the Chambers judge wrongly refused to consider or give effect to reconciliation in her approach to s. 1 of the Charter:

[142] The protesters argued that the cultural values of reconciliation should inform the analysis, just as they have in the sentencing process. However, they did not expand on the proposition or offer suggestions how this could be effectively accomplished by the court when conducting a “balancing” exercise. That exercise would seem, by definition, to preclude examination of questions such as whether protest on aboriginal issues should outweigh advocacy for global peace or fighting childhood cancer.

I am unclear if the argument suggests there should be hierarchies of legitimacy in the arena of expressive rights, or that some speech is more meritorious than others, or that their background should operate to reduce any overall moral blameworthiness with respect to the trespass committed. The lack of clarity makes the proposition difficult to address. [ 50 ] The appellants suggest that the Chambers judge should have taken an approach along the lines of the one adopted in Saskatchewan v Durocher , 2020 SKQB 224 , 453 DLR (4th) 650. There, in considering whether the Bylaws were a justifiable limitation of Mr.

Durocher’s Charter rights, Mitchell J. said this in the course of his proportionality analysis: [46] Here the objective of the impugned Bylaws , and the Notice of Trespass, seeks to regulate access to Wascana Centre Authority, and to control activities taking place within its geographical limits, including the West Lawn.

On the other side, Tristen’s ceremonial fast which has both aspects of Indigenous spirituality and advancing political discourse, namely educating society about the urgent need for suicide prevention, particularly among Indigenous youth, would be significantly, if not wholly curtailed from continuing on the West Lawn. [47] I believe I can take judicial notice of recent and significant efforts to nudge Indigenous and non-Indigenous people along the road to national reconciliation.

Most notably, these efforts include the landmark 2015 Report of The Truth and Reconciliation Commission, and the 2019 Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. In my respectful view, Tristen’s ceremonial fast represents an admittedly small and personal attempt to encourage all of us to move a little further along in our national journey. [ 51 ] At the level of general principle, I accept that the goal of reconciliation, in the sense described above, can play a role in at least some aspects of a s. 1 analysis.

By way of one example, when considering the importance of the objective of a law on the first wing of the Oakes inquiry, it may be appropriate to find that the significance of the objective is elevated because it is aimed at advancing mutually respectful relationships between Indigenous and non-Indigenous peoples. However, reconciliation is not a trump card that somehow displaces all other considerations involved in assessing the reasonableness of a limitation of Charter rights. It may be a factor to be weighed in appropriate circumstances, but it is not a determinative or necessarily overriding factor.

Any consideration of reconciliation must be fitted into the framework of analysis mandated by Oakes . It is not something that stands outside of that framework. [ 52 ] I do not understand the Chambers judge to have rejected the idea that reconciliation can or should be considered in a s. 1 analysis. Rather, I take her to have said that the appellants had not satisfactorily explained how reconciliation played out in the assessment of the s. 1 issues that she had to address or how reconciliation could be given legal effect in the circumstances of this case.

This is very understandable because, in this Court as well, the appellants were unclear about how reconciliation can or should fit into the analysis required by s. 1 of the Charter . Their submissions on this point did not go meaningfully beyond emphasizing the general importance of reconciliation. [ 53 ] In the end, I am not persuaded that the Chambers judge erred in her handling of the issue of reconciliation. C. Reason for arrest [ 54 ] The appellants argued before the Chambers judge that their arrests had been effected under s. 139 of the Criminal Code .

It provides that it is an offence to attempt, in any manner, to obstruct, pervert or defeat the course of justice “in a judicial proceeding”. The appellants contended that, because there was no judicial proceeding associated with what they had done, their arrests had been unlawful. In this regard, the appellants relied on the August 8, 2018, affidavit of Evan Bray, Chief of Police of the Regina Police Service, where, at paragraph 20, Chief Bray had averred that the arrest of Richelle Dubois had been for “obstruction of justice”.

They also referenced the August 8, 2018, affidavit of Cory Lindskog, an Inspector with the Regina Police Service, with responsibility for the appellants’ camp, who had indicated, at paragraph 34 of his affidavit, that the arrest of Prescott Demas had been for “obstruction of justice”. [ 55 ] The Chambers judge did not accept the appellants’ argument on this point. She considered the whole of the situation pertaining to the arrests, including the August 15, 2018, affidavit of Darcy Koch, a Superintendent with the Regina Police Service who had been present when the camp was dismantled.

He indicated, at paragraph 10 of his affidavit, that the appellants had been arrested for “obstructing the work of the employees of the [Commission], contrary to

section 129 of The Criminal Code of Canada ”.

Section 129 says that everyone who “wilfully obstructs a…peace officer in the execution of his duty” commits an offence.

In the end, the Chambers judge concluded that, “[i]n all the surrounding circumstances, the substance of what the protesters can reasonably have been supposed to understand was the act of obstructing a peace officer, notwithstanding any loose or misplaced utterance of the word ‘justice’” (at para 175). [ 56 ] The appellants contend that the Chambers judge’s decision in this regard is not sustainable, i.e., that she made a palpable and overriding error when she failed to find that they had been arrested under s. 139 of the Criminal Code .

They emphasize what Chief Bray and Inspector Lindskog said in their affidavits about the basis of the arrests and stress that there were no affidavits from the frontline officers who effected the arrests. [ 57 ] I am not persuaded by this argument. The whole of the evidence before the Chambers judge gave her a more than sufficient basis for concluding that, notwithstanding some of the language used in the affidavits, the appellants had not been arrested for obstruction of justice.

First, in the entire context of what unfolded on June 18, 2018, none of the police officers involved in the arrests would have had any cause or reason to believe that the appellants were interfering with a “judicial proceeding”. Rather, they were self-evidently doing something else: interfering with efforts to dismantle the camp. [ 58 ] Second, the Court was advised during oral argument that, at the Queen’s Bench hearing, then counsel for the Regina Police Service indicated that, in drafting the affidavits of Chief Bray and Inspector Lindskog, she had inadvertently used the phrase “obstruction

of justice” to describe the reason for the appellants’ arrests. The appellants appear to accept this.

That, of course, does not explain awaythe fact that Chief Bray and Inspector Lindskog averred as they did but it does perhaps provide some perspective on the Chambers judge’sdecision. [59] Third, as noted above, Superintendent Koch, who had been on the frontlines of the arrests, so to speak, deposed that theappellants were arrested not for “obstructing justice” but for “obstructing the work of the employees of the [Commission], contrary tosection 129 of The Criminal Code of Canada”. [60] Fourth, and significantly, Chief Bray swore a second affidavit, dated August 23, 2018, to which he exhibited the occurrencereports filed by the officers who had attended the camp and arrested the appellants.

There was apparently no occurrence report submittedwith respect to the arrest of Constance Dubois, but the other reports detailed that Richelle Dubois had been arrested for “obstructing apeace officer” and that the rest of the appellants had been arrested for “obstruction”. [61] In the end, therefore, there was an entirely solid basis for the Chambers judge to have decided that the appellants were notarrested for obstructing justice contrary to s. 139 of the Criminal Code. D. Other arguments [62] In oral argument, the appellants advanced only the three submissions discussed above.

However, while accepting that theirfactum is largely concerned with the constitutional validity of the Bylaws – an issue now off the table – they said that they were notabandoning the arguments made in the factum.

Given how this appeal has unfolded, there would seem to be only two such arguments thatrequire consideration. [63] The first argument is to the effect that, if their arrests were in fact made pursuant to s. 129 of the Criminal Code, they were notjustifiable on that basis. [64] By way of an initial step in considering this submission, it should be noted that the validity of the appellants’ arrests does notturn on the question of whether they were committing an offence under s. 129 of the Code or whether they were ultimately convicted ofthat offence.

As per R v Biron, (SCC), [1976] 2 SCR 56, a peace officer may lawfully arrest under s. 129 without awarrant if they find the accused “apparently” committing a criminal offence. In more recent cases, the lawfulness of a warrantless arresthas been framed as being a function of whether (

a) the peace officer subjectively believed the arrested person was committing a criminaloffence, and (

b) that belief was objectively reasonable. See, for example: R v Lotfy, 2017 BCCA 418, 357 CCC (3d) 516. [65] It will be recalled that, on June 2, 2018, the Commission posted a Trespass Notice at the camp pursuant to s. 3(1)(

d) of TheTrespass to Property Act. It directed the protesters to discontinue various activities including overnight camping, erecting tents or otherstructures, and burning wood or other combustibles. On June 15, 2018, employees of the Commission and the Ministry of Central Servicesbegan to dismantle the camp.

A verbal agreement was then reached to allow the Teepee to remain on the site until noon on June 17, 2018.However, the appellants did not dismantle the Teepee as agreed and announced that, as per Chief Bray’s affidavit of August 8, 2018, atparagraph 17, they were “ready for the Government and the Regina Police Service to return and arrest them”. [66] At common law, an occupier has the right to remove from their premises any property that has been placed there by way oftrespass.

See: Andrew Botterell et al, Fridman’s The Law of Torts in Canada, 4th ed (Toronto: Thomson Reuters, 2020) at 139–140.Section 17.2 of The Trespass to Property Act says that nothing in it “limits or affects any rights or remedies of an occupier at commonlaw”. Further, s. 3(1)(

c) of The Trespass to Property Act provides that a person shall stop engaging in an activity on the premises afterhaving been requested to do so by the occupier. It follows from all of this that the Commission had a right to have the Teepee and otherproperty associated with the camp removed from the West Lawn. [67] Police officers have a duty to keep the peace. Section 36(2)(a)(

i) of The Police Act, 1990, SS 1990-91, c P-15.01, provides that,unless otherwise indicated in his or her appointment, a member of a police force has the power and responsibility to perform all assignedduties in relation to “the preservation of peace”. Similarly, in R v Dedman, (SCC), [1985] 2 SCR 2, in dissent, but not onthis point, Dickson C.J. observed at pages 11–12 that “[t]he common law duties of police have been described as the preservation of thepeace, the prevention of crime and the protection of life and property”.

For the majority, Le Dain J. confirmed at page 32 that “[i]t hasbeen held that at common law the principal duties of police officers are the preservation of the peace, the prevention of crime, and theprotection of life and property”. See also: R v Clayton, 2007 SCC 32 at para 69, [2007] 2 SCR 725; R v Mann, 2004 SCC 52 at para 26,[2004] 3 SCR 59. [68] On June 18, 2018, Commission officials arrived at the camp for the purpose of dismantling the Teepee.

The police were there,according to the uncontested averments of Superintendent Koch and Inspector Lindskog, to keep the peace, not to take down the Teepee.The situation, as described in the affidavits, was tense and vocal. The appellants were in the Teepee and refused to come out. [69] This was the overall set of circumstances that faced the police. On the one hand, the Commission officials had a lawful right toremove the Teepee. On the other hand, the appellants were prepared to protest and resist the Commission’s efforts to do that.

The situationthen unfolded as follows, according to Superintendent Koch and Inspector Lindskog. Prescott Demas threw logs on the sacred fire and theother individuals refused to leave the Teepee. Some of the appellants lashed themselves together or to the Teepee. Despite efforts to haveRichelle Dubois voluntarily leave the Teepee, she insisted that the only way she would exit it was if she was dragged out. After RichelleDubois was removed from the Teepee and arrested, her mother, Constance Dubois, placed her hands behind her back and asked to bearrested.

Despite being given an option to voluntarily leave the scene, Dinah-Mae Papequash also put her hands behind her back and askedto be arrested when she was brought out of the Teepee. Shannon Corkery voluntarily came out of the Teepee and placed her hands behindher back. Prescott Demas refused to leave the Teepee and went limp. It took three police officers to carry him to a police car. GayleneHenry initially said that she would have to be dragged out of the Teepee but, after several minutes of conversation, she walked out of it andwas then arrested.

The appellants’ accounts of these events, as set out in their affidavits, vary in some particulars from this account but notin overall tone or substance. [70] Given all of this, I am unable to see a reversible error in the Chambers judge’s conclusion that the appellants were lawfully

arrested pursuant to s. 129 of the Criminal Code. This, after all, was a conclusion of mixed law and fact and hence one where this Courtmay intervene only if it involved a palpable and overriding error. See: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. Allindications were that the stand-off between the Commission officials and the appellants was not going to be resolved without some sort ofconfrontation, perhaps quite an unpleasant one.

Thus, the appellants’ refusal to vacate the Teepee at the request of the police, and tothereby avoid a disturbance, was very much open to being characterized or seen as obstructing those officers in their efforts to keep thepeace and thereby proceed with the execution of their duties. [71] The second argument advanced by the appellants in their factum is grounded in R v Sharma, (SCC), [1993] 1SCR 650 [Sharma]. In that case, a flower vendor was charged with exposing goods for sale on a street without a licence contrary to amunicipal bylaw.

He was also charged with obstruction contrary to s. 129 of the Criminal Code when he failed to obey a police officer’sinstruction to pack up his display and move on. The Supreme Court found the bylaw to be ultra vires the municipality.

It also said that,even if the bylaw had been lawful, there was no power to arrest pursuant to the relevant provincial legislation and that the police officerhad no authority, either at common law or under statute, to arrest the vendor for failing to comply with an order to desist from conductprohibited by the bylaw and could not circumvent the lack of an arrest power by charging him with obstruction. The appellants argue thatthis case parallels Sharma.

They say that the police had no provincial legislative authority to arrest them and used s. 129 of the Code, ifthat was in fact the basis for their arrests, to enforce the Bylaws. [72] This argument cannot succeed either. To begin, the police in this case had the authority to effect a warrantless arrest under TheTrespass to Property Act.

Section 12 of that Act says “[a] peace officer may arrest without warrant any person found in or on premises ifthe peace officer believes on reasonable grounds that the person is contravening any provision of this Act”. [73] Secondly, and more importantly, this case is factually different than Sharma. There, the obstruction charge was laid for afailure to comply with an instruction to obey a municipal bylaw even though the Legislature had defined the enforcement power relevantto the bylaw as ticketing, not arrest.

Here, the obstruction charges were laid because of the appellants’ efforts to deny the police in theirattempt to maintain the peace as the Commission officials dismantled the Teepee, not for a breach of the Bylaw prohibition againstestablishing and maintaining the camp. V. CONCLUSION [74] I respectfully find that none of the appellants’ arguments can succeed and that, as a result, this appeal must be dismissed. Therewill be no order with respect to costs. “Richards C.J.S.” Richards C.J.S.I concur. “Whitmore J.A.” Whitmore J.A.I concur. “Schwann J.A.” Schwann J.A.