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Group predicts Charter challenge to Saskatchewan’s COVID-19 response

Thursday, September 24, 2020 @ 9:12 AM | By Terry Davidson


Saskatchewan’s government will “likely” face a future Charter challenge over lockdown measures put in place for the COVID-19 health crisis, says an official with a group accusing the province of violating residents’ rights in its response to the pandemic.

This comes in the wake of a Sept. 14 report by the Justice Centre for Constitutional Freedoms (JCCF), which alleges that Saskatchewan’s government used an unjustifiable overreach of power to enact rules the JCCF says violated people’s rights to move, assemble, travel, associate, worship and work.

The report, titled the “Unjustified Persistence of Lockdowns: A Charter Analysis of Saskatchewan’s Response to COVID-19,” states the government “must now consider the negative impacts of lockdown measures on the lives, health, economy, and well-being of Saskatchewanians.”

It provides a timeline of Saskatchewan’s initial response to COVID-19 in March and April, which, like many other jurisdictions, included a declaration of a state of emergency and restrictions on things such as public gatherings and the operation of businesses.

Then came the ceasing of all non-urgent and elective surgeries, as well as various other medical procedures and diagnostics, and the closure of restaurants, recreation facilities, dentists, chiropractors and massage therapy clinics.

Saskatchewan’s premier ordered that directions from the province’s chief medical officer be followed and gave police the power to enforce them.

But, like other jurisdictions across the country, Saskatchewan has since introduced a gradual, phased-in reopening, which included a step-by-step resumption of various suspended medical services.

As of late July, phase four continued to be rolled out with the further loosening of restrictions that had been placed on retail stores, libraries and places of worship, and the reopening of services such as fitness facilities.

As of Sept. 23, Saskatchewan was still in phase four, according to a government spokesperson.

The JCCF report alleges that the restrictions put in place lacked clear explanation of “purpose or necessity.”

“While these measures were presumably well-intentioned, there is no question that they violated Charter-protected freedoms to move, travel, associate, assemble and worship, and these measures obviously inflicted many different kinds of harms on Saskatchewanians, even if the full extent of these harms remains unknown at this time,” it states.

Marty Moore, JCCF staff lawyer

JCCF staff lawyer Marty Moore sees a Charter challenge coming against those initial measures, as well as against current rules around social distancing, gatherings and visiting hospital patients.

“I think it’s likely the Saskatchewan government will be required to answer these questions in court,” said Moore. “I don’t think [it] … can continue to persist in lockdown measures without spelling out what is its pressing and substantial objective. I think the concept of protecting the medical system from being overwhelmed, that was a pressing and substantial objective that many of us certainly went along with, but now, in light of the actual circumstances in Saskatchewan and the established medical and scientific information about COVID-19, the question is what is the government’s pressing and substantial objective? That’s not entirely clear. And what is the evidence that they’re putting forward to justify their persisting limitations on Charter rights and freedoms? If they are not going to answer these questions in the public conversation, they probably should expect to answer them in a legal conversation.”

The JCCF has various pandemic-related legal actions currently in the works, including applications in Alberta and Ontario.

Saskatchewan’s justice Ministry was asked to comment on the JCCF’s report.  

“Saskatchewan is confident that its COVID-19 precautions are in alignment with provincial and federal legislation,” said a spokesperson in an e-mail.

According to a government webpage, there were 1,814 cases of COVID-19 as of Sept. 21, as well as 10 intensive care and inpatient hospitalizations. As of that date, Saskatchewan had seen and 24 deaths and 1,645 recoveries.

Newfoundland recently faced a Charter challenge against its travel ban for non-residents — brought by the Canadian Civil Liberties Association and Kim Taylor, a former Newfoundland resident who was initially turned away at the provincial border after attempting to enter for her mother’s funeral.  

In the end, in Taylor v. Newfoundland and Labrador 2020 NLSC 125, the court ruled that while the travel ban violated Taylor’s mobility rights, it was a reasonable measure in response to the ongoing health crisis.

If you have any information, story ideas or news tips for The Lawyer’s Daily, please contact Terry Davidson at t.davidson@lexisnexis.ca or call 905-415-5899.