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Sarah Miller, JSS Barristers

Probation order in Alberta COVID-19 protest case raising free speech concerns

Wednesday, October 20, 2021 @ 10:53 AM | By Ian Burns

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An Alberta judge has ordered a Calgary-based pastor and his brother to include positive messaging about public health restrictions after being convicted of contempt for defying a court order enforcing community compliance of the province’s COVID-19 response, a move which is raising concerns about its constitutionality and whether it amounts to compelled speech.

Artur Pawlowski and his brother Dawid were cited as being in civil contempt of a previous court order from Alberta Court of Queen’s Bench Associate Chief Justice John Rooke which restrained Albertans (identified as John and Jane Does) from organizing in-person gatherings, amongst other restrictions (Alberta Health Services v. Pawlowski 2021 ABQB 493). The two were arrested in May 2021 as they left a service at their church and have been outspoken in their opposition to the pandemic restrictions put in place by Alberta Health Services (AHS), which include masking and lockdowns.

As part of their probation order (as outlined in Alberta Health Services v. Pawlowski 2021 ABQB 813), Queen’s Bench Justice Adam Germain has ordered the Pawlowskis to “indicate the following” when speaking in public gatherings or public fora like social media: “I am also aware that the views I am expressing to you on this occasion may not be views held by the majority of medical experts in Alberta. While I may disagree with them, I am obliged to inform you that the majority of medical experts favour social distancing, mask wearing, and avoiding large crowds to reduce the spread of COVID-19. Most medical experts also support participation in a vaccination program unless for a valid religious or medical reason you cannot be vaccinated. Vaccinations have been shown statistically to save lives and to reduce the severity of COVID-19 symptoms.”

Sarah Miller, JSS Barristers

And that particular aspect of his order has raised concerns about its validity under s. 2 of the Charter, which protects freedom of thought, belief, opinion and expression. The Pawlowskis’ counsel, Sarah Miller of JSS Barristers, said she has reached out to several criminal lawyers and they have never heard of such a requirement in a probation order.

“If the Alberta government issued the compelled speech law tomorrow that said if you are going to express views contrary to a majority of people there would be a Charter complaint automatically by civil liberties groups,” she said. “And when a judge does it there may be a bit of a different analysis, but that doesn’t mean we should ignore freedom of expression rights and I think it is pretty problematic that Justice Germain went down that road.”

Lisa Silver, an associate professor of criminal law at the University of Calgary, said when probation orders interfere with Charter rights in criminal proceedings they must do so in a minimal way and exercise restraint.

Lisa Silver, associate professor of criminal law at the University of Calgary

“And an order under the Criminal Code can also contain any other reasonable condition the court considers desirable for protecting society and for facilitating the offender’s successful reintegration into the community,” she said. “There could be an argument that Justice Germain’s condition goes to that, but if there is an appeal what the court is going to do is to have to look at the issue through the lens of whether it was inappropriate and an overreach, and whether there was a more specific order that he could have given that could have had the same result.”

And Silver said she too was unaware of any probation orders in the past that had similar conditions on speech, with the only analogous one she could find was a case of a pro-life activist in Ontario who was ordered to stay away from abortion clinics after going in and berating patients.

“She was ordered to not be within 100 metres of any clinic, and she tried to argue that was a breach of her free speech rights, but that was dismissed,” she said. “But there’s one thing about not allowing someone to go near something and telling them what they have to say every time they open their mouth.”

Miller said she plans on appealing the probation order alongside a previously launched appeal of the contempt findings against the Pawlowskis. She said she felt her clients were not bound by the Rooke order, which targeted northern Alberta residents Christopher Scott and Glen Carritt and “any other person acting under their instructions or in concert with them, or independently to like effect.” Scott had kept his restaurant open despite pandemic restrictions and planned a rally in support of his actions, and Caritt had also planned protests.

“I still take the position that [the Rooke order] does not mean every Albertan who may be inclined to breach a public health order,” she said. “The Pawlowskis don’t know [Scott and Carritt] and aren’t organizing with them in any way. What they are doing is organizing church services the way they have for years, so if you want an order that is prohibiting church services, get an order that prohibits church services.”

In court and elsewhere, Artur Pawlowski has described health authorities as Nazis, that Justice Germain was a “tool of the government,” and that Alberta Premier Jason Kenney, who was observed dining with other politicians during the pandemic, should also be put behind bars. But Justice Germain declined to sentence the brothers to jail time, despite the exhortations of the AHS, for fear it would make them martyrs. He wrote the Pawlowskis and others breaching health orders are “on the wrong side of science, history, and common sense on this issue.”

“The growing number of dead and dying in North America from COVID-19 infection cannot be ignored, nor defined as a false reality,” he wrote. “Pastor Pawlowski’s outspoken sermon and political lecture delivered to me in his sanction hearing was a cry for jail because Pastor Pawlowski has observed that jail will add to his persona as a martyred Christian fighting the forces of government evil.”

Silver said the language employed by Artur may have been “completely offensive and wrong,” but it was not illegal.

“Maybe he has to express his views respectfully while in court and talking about the administration of justice, but he doesn’t have to be when taking about the government of Alberta and the AHS,” she said. “You can require someone in a probation order to uphold the law, but I don’t believe it is valid in a probation order to try and make somebody a better person — and that is what worries me about this.”

A representative from the AHS declined to comment on the case.

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