COVID-19 Protesting Rights - Weisdorf - 2021-05-21 - Baraka

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1 COVID-19 PROTESTING RIGHTS – AUTHORITIES CITED 1. The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 – sections 1, 2, 7, 15(1) and 52(1)..............................................................................................................................................................1 2. The Oakes Test..............................................................................................................................................................2 3. Beaudoin v British Columbia, 2021 BCSC 512 – paragraphs 249 and 251.........................................................3 4. Fleming v. Ontario, 2019 SCC 45 – paragraphs 98 and 99.....................................................................................3 5. Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121 – pages 123, 140, 141, 142, 143................4 6. Emergency Management and Civil Protection Act, RSO 1990, c E.9 – section 7.0.2.........................................5 7. Police Services Act, R.S.O. 1990, c. P.15 – section 1(2)..........................................................................................5 8. Police Officer's Oath.......................................................................................................................................................5 The Constitution Act, 1982 PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: Guarantee of Rights and Freedoms Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Fundamental Freedoms Fundamental freedoms 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; 2 (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association. Legal Rights Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Equality Rights Equality before and under law and equal 15. (1) Every individual is equal before and protection and benefit of law under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. PART VII GENERAL Primacy of 52. (1) The Constitution of Canada is the supreme law of Canada, and Constitution of any law that is inconsistent with the provisions of the Constitution Canada is, to the extent of the inconsistency, of no force or effect. The Oakes Test The section 1 test as first applied by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103: A limit on a Charter right must be “reasonable” and “demonstrably justified.” The applicable test was originally set out in Oakes and is now well-established. It is entirely within the domain of the courts. 1. Is the legislative goal pressing and substantial? i.e., is the objective sufficiently important to justify limiting a Charter right? 2. Is there proportionality between the objective and the means used to achieve it? 3 The second branch of the test has three elements: a. "Rational Connection": the limit must be rationally connected to the objective. There must be a causal link between the impugned measure and the pressing and substantial objective; b. "Minimal Impairment": the limit must impair the right or freedom no more than is reasonably necessary to accomplish the objective. The government will be required to show that there are no less rights-impairing means of achieving the objective “in a real and substantial manner”; c. "Final Balancing": there must be proportionality between the deleterious and salutary effects of the law. Unconstitutional legislation is only saved under section 1 if it meets all elements of the test. Beaudoin v British Columbia, 2021 BCSC 512 IX. Conclusion [249] Mr. Beaudoin has persuaded me that his s. 2(c) and (d) Charter rights were infringed by the G&E Orders that predated February 10, 2021, and that the infringement of those rights by those orders cannot be demonstrably justified in a free and democratic society. X. Remedy for Mr. Beaudoin [251] Mr. Beaudoin is entitled to a part of the declaration he seeks, pursuant to ss. 24(1) and 52(1) of the Constitution Act, 1982. I declare that orders made by Dr. Henry entitled “Gatherings and Events” pursuant to ss. 30, 31, 32 and 39(3) of the PHA, including the orders of November 19, 2020, December 2, 9, 15 and 24, 2020 are of no force and effect as against Mr. Beaudoin as they unjustifiably infringe his rights and freedoms with respect to public protests pursuant to ss. 2(c) and (d) of the Charter. Fleming v. Ontario, 2019 SCC 45 [98] Secondly, the mere fact that a police action was effective cannot be relied upon to justify its being taken if it interfered with an individual’s liberty. For an intrusion on liberty to be justified, the common law rule is that it must be “reasonably necessary”. If the police can reasonably attain the same result by taking an action that intrudes less on liberty, a more intrusive measure will not be reasonably necessary no matter how effective it may be. An intrusion upon liberty should be a measure of last resort, not a first option. To conclude otherwise would be generally to sanction actions that infringe the freedom of individuals significantly as long as they are effective. That is a recipe for a police state, not a free and democratic society. [99] The courts have held that police powers that involve interference with liberty will not be justified if they are ineffective at preventing breaches of the peace. For example, in Figueiras, the Ontario Court of Appeal said: “If the interference with individual rights bears no rational connection to the duty being performed or is not effective in furthering the police duty, then surely it is not a ‘necessary’ interference” (para. 93). This is not the same as saying that any powers are justified if they are effective. 4 Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121 Page 123: The act of the defendant, through the instrumentality of the Commission, brought about a breach of an implied public statutory duty toward the plaintiff. There was no immunity in the defendant from an action for damages. He was under no duty in relation to the plaintiff and his act was an intrusion upon the functions of a statutory body. His liability was, there-fore, engaged. There can be no question of good faith when an act is done with an improper intent and for a purpose alien to the very statute under which the act is purported to be done. Page 140: In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the 'Commission may not be mentioned in such statutes but they are always implied as exceptions. "Discretion" necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Page 141: The act of the respondent through the instrumentality of the Commission brought about a breach of an implied public statutory duty toward the appellant; it was a gross abuse of legal power expressly intended to punish him for an act wholly irrelevant to the statute, a punishment which inflicted on him, as it was intended to do, the destruction of his economic life as a restaurant keeper within the province. Whatever may be the immunity of the Commission or its member from an action for damages, there [Page 142] is none in the respondent. He was under no duty in relation to the appellant and his act was an instrusion upon the functions of a statutory body. The injury done by him was a, fault engaging liability within the principles of the underlying public law of Quebec: Mostyn v. Fabrigas[10], and under art. 1053 of the Civil Code. That, in the presence of expanding administrative regulation of economic activities, such a step and its consequences are to be suffered by the victim without recourse or remedy, that an administration according to law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure. 5 Page 143: "Good faith" in this context, applicable both to the respondent and the general manager, means carrying out the statute according to its intent and for its purpose; it means good faith in acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose; it does not mean for the purposes of punishing a person for exercising an unchallengeable right; it does not mean arbitrarily and illegally attempting to divest a citizen of an incident of his civil status. Emergency Management and Civil Protection Act, RSO 1990, c E.9 Emergency powers and orders Purpose 7.0.2 (1) The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms. 2006, c. 13, s. 1 (4). Police Services Act, R.S.O. 1990, c. P.15 Declaration of principles 1 Police services shall be provided throughout Ontario in accordance with the following principles: 2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code. Police Officer's Oath I, _______________________________ (First name, Last name. (Badge)) Solemnly, swear/affirm that I will be loyal to Her Majesty the Queen and to Canada, that I will uphold the Constitution of Canada and that I will, to the best of my ability, preserve the peace, prevent offences and discharge my other duties as Police Constable, faithfully, impartially and according to law.