Areas of
Manitoba’s Court of Queen’s Bench Chief Justice Glenn Joyal

Manitoba public health orders ‘necessary, reasonable and justified’: chief justice holds

Tuesday, October 26, 2021 @ 9:41 AM | By Ian Burns

The chief justice of Manitoba’s Court of Queen’s Bench has upheld the constitutionality of a number of public health orders (PHOs) borne out of the province’s fight against the COVID-19 pandemic, writing the factual underpinnings for managing a pandemic are rooted in predominantly scientific and medical matters which fall outside the expertise of courts.

The orders from Manitoba’s provincial public health officer Brent Roussin, which placed restrictions on public and private gatherings and the temporary closure of places of worship, were the subject of a constitutional challenge by several churches in the province, who claimed they violated their members’ freedom of conscience and religion and the right to peaceful assembly. But in a decision released Oct. 21, Chief Justice Glenn Joyal wrote that, while the PHOs did in fact violate those rights, they were constitutionally justified as reasonable limits under s. 1 of the Charter (Gateway Bible Baptist Church et al. v. Manitoba et al. 2021 MBQB 219).

Chief Justice Glenn Joyal

“In examining Dr. Roussin’s decisions, I see them as decisions that were within the range of reasonable decisions supported by the scientific and epidemiological evidence,” he wrote. “I find that the credible science that they invoked and relied upon provides a convincing basis for concluding that [the orders] were necessary, reasonable and justified.”

Chief Justice Joyal also rejected the churches’ arguments that the restrictions violated the right of life, liberty and security of the person or s. 15 equality rights. And in a separate decision (Gateway Bible Baptist Church et al. v. Manitoba et al. 2021 MBQB 218), he ruled that the Manitoba Legislative Assembly’s decision to delegate authority for issuing public health orders to Roussin and his deputy, Dr. Jazz Atwal, was valid as well.

“I see the delegation … as a constitutional and democratically legitimate means of ensuring that the public health measures that are stipulated are measures that are proposed by a qualified medical expert,” he wrote. “Such delegation provides the flexibility and accountability essential for responding to an evolving and rapidly changing pandemic.”

Chief Justice Joyal wrote, in the context of the “deadly and unprecedented pandemic,” a degree of deference can be afforded to those who have to make decisions quickly.

“I say that while recognizing and underscoring that fundamental freedoms do not and ought not to be seen to suddenly disappear in a pandemic and that courts have a specific responsibility to affirm that most obvious of propositions,” he wrote. “But just as I recognize that special responsibility of the courts ... so too must I recognize that the factual underpinnings for managing a pandemic are rooted in mostly scientific and medical matters. Those are matters that fall outside the expertise of courts.”

In a statement, Manitoba Justice Minister Cameron Friesen said “the government’s position has been upheld.”

“Our government has responded to the pandemic and enacted reasonable measures to prevent the spread of the virus, keep our most vulnerable citizens safe and prevent the overwhelming of the hospital system,” he said. “Those measures are demonstrating their value even now, as we continue to see a stabilizing of the daily case counts, even while other jurisdictions are experiencing very significant case spread and hospitalizations. We will continue to act to keep Manitobans safe, while we work hard to keep children in school, businesses and houses of worship open.”

Lawyer Allison Pejovic, who represented the plaintiffs on behalf of the Calgary-based Justice Centre for Constitutional Freedoms (JCCF), said an appeal of the decision is being considered.

“We are disappointed in these decisions and in the unwavering deference accorded to public health officials,” she said.

The justice centre came under considerable fire in July when Chief Justice Joyal revealed a private investigator had been following him, ostensibly to see if he had been violating COVID-19 protocols. JCCF president John Carpay admitted he had hired the investigator and stepped down from his role. He has since been reinstated.

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