The Justice Centre has filed a legal action in the Court of Queen’s Bench challenging sections of The Public Health Act and Orders made by Manitoba’s Chief Public Health Officer, Dr. Brent Roussin, to end the violation of Manitobans’ Charter freedoms. The Justice Centre represents seven churches, Gateway Bible Baptist Church, Pembina Valley Baptist Church, Redeeming Grace Bible Church, Grace Covenant Church, Slavic Baptist Church, Christian Church of Morden, Bible Baptist Church, Minister, a deacon, the owners of a restaurant in Winkler, Manitoba, and an individual fined for exercising his Charter rights to peacefully protest at a rally in Steinbach, Manitoba.
The Justice Centre’s filed lawsuit alleges that Orders under The Public Health Act of Manitoba are outside of the authority of Manitoba, because law-making is in the exclusive jurisdiction of the Legislature.
The lawsuit also states that Manitoba’s lockdown measures are not justified violations of the Charter-protected freedoms of conscience, religion, expression, and peaceful assembly.
The action also contends that Manitoba and Dr. Roussin failed to consider the collateral social and health costs of locking down society.
The lawsuit claims that the PCR Test, the tool used to diagnose COVID-19 in Manitoba, produces unreliable and misleading data and that Manitoba and Dr. Roussin knew or ought to have known of this unreliability.
The legal action in Manitoba follows legal action filed against the Alberta government on December 4, 2020. The full hearing on the constitutional issues will be heard sometime in 2021. A date has not yet been set.
The Justice Centre has been inundated with hundreds of emails from people in Manitoba who are being financially ruined by lockdowns, suffering harm to mental health, losing their businesses, unable to see their elderly parents, and being denied critical health care for conditions other than COVID-19. The government has told stores what they can sell, and restricted the sale of items deemed Dr. Roussin as “non-essential” such as books, makeup, toys, and other everyday products.
Dr. Roussin has stated that pursuant to the public health orders, only household members are allowed indoors or outdoors on Manitobans’ own properties. “So you couldn’t have people over that are not household members in your garage, you couldn’t have them in the back for a fire,” he told CTV news on December 9, 2020. On December 8 the Manitoba government announced it had extended restrictions into the New Year on January 8, 2021, effectively cancelling any gathering with extended family over Christmas.
“Locking down the majority of a healthy society is not necessary to protect those most at risk from COVID-19. The lockdowns are devastating society on multiple socio-economic and constitutional levels, and harming the well-being of citizens,” states Allison Pejovic, Staff Lawyer for the Justice Centre.
“Politicians have not put forward any persuasive evidence that lockdowns have actually saved lives. At the same time, there is no question that lockdowns have caused grave harm to millions of Canadians suffering unemployment, poverty, cancelled surgeries, suicides, isolation and the loss of their liberty,” states Ms. Pejovic.
“The scale of the government’s infringement on Canadians’ Charter-protected rights and freedoms as a result of Manitoba’s response to Covid-19 is unprecedented,” continues Ms. Pejovic, “It is past time that the constitutionality of these restrictions and prohibitions are adjudicated by a fair and impartial court that looks at facts and evidence.”
The full hearing on the constitutional issues was heard in June 2021.
On October 21, 2021 Chief Justice Joyal of Manitoba Court of Queen’s Bench released his decision upholding lockdown policies. The first Decision held that the authority given to Chief Provincial Public Health Officer Dr. Brent Roussin was constitutional. The second Decision held that the Manitoba Government’s lockdown restrictions were justified in their violations of the Charter– freedoms of conscience, religion, expression and peaceful assembly. Chief Justice Joyal also found that there had been no unconstitutional violations of the Charter rights to liberty, security of the person, and that there was no violation of equality rights on lockdowns that saw stores restricted to selling only goods the government deemed essential and churches closed for worship.
At 292 of the decision by Chief Justice Joyal, he stated, “In the context of this deadly and unprecedented pandemic, I have determined that this is most certainly a case where a margin of appreciation can be afforded to those making decisions quickly and in real time for the benefit of the public good and safety.”
He added, “…determination of whether any limits on rights are constitutionally defensible is a determination that should be guided not only by the rigours of the existing legal tests, but as well, by a requisite judicial humility that comes from acknowledging that courts do not have the specialized expertise to casually second guess the decisions of public health officials…”
An appeal is being considered.
The decision will be reviewed thoroughly, and an update will be provided in due course with respect to potential next steps.
Updated September 19, 2023:
The Justice Centre for Constitutional Freedoms is announcing that five Manitoba churches, a minister, a deacon, and a protester have filed an application with the Supreme Court of Canada to argue the national importance of the constitutionality of church closures and restrictions on outdoor gatherings from late 2020.
The five Manitoba churches, including Gateway Bible Baptist Church, and two individuals, including Pastor Tobias Tissen, have challenged the church closures, citing Charter breaches of their religious freedoms and freedoms to assemble and express themselves. A protester, Ross MacKay, challenged the limits on his ability to gather outdoors after he was ticketed. The province of Manitoba has admitted to violating the Applicants’ Charter rights to worship, express themselves, and assemble. Without explaining how or why the government’s evidence might be more persuasive than the Applicant’s evidence in the expert report of the former Chief Public Health Officer of Manitoba, Dr. Joel Kettner, the lower courts ruled that the violations of these Charter rights were justified under section 1 of the Charter.
The case was heard before the Manitoba Court of King’s Bench in May 2021. Chief Justice Glenn Joyal ruled in favour of the province, finding that the Charterviolations were justified under section 1. In a separate motion for costs brought by the government, he did not order the Applicants to pay court costs, as he found the public interest in having the case adjudicated was significant. The Applicants appealed before the Manitoba Court of Appeal in December 2022. Their appeal was dismissed in June 2023.
On September 18, 2023, the Applicants filed an Application for Leave to Appeal to the Supreme Court of Canada (SCC). They argue that the case raises issues of national importance that warrant the SCC to hear the case:
- How are constitutionally protected activities to be juridically measured against comparable non-constitutionally protected activities? What is the proper approach to the minimal impairment stage of the Oakes analysis with respect to public health orders that fully prohibit Charter-protected activities (eg. In-person religious worship) while permitting comparable non-Charter-protected activities (eg. In-person university classes, film and television productions, indoor team-training for the Winnipeg Jets, etc.);
- Does reliance on the “precautionary principle” satisfy the state’s onus under Charter section 1 to provide “cogent and persuasive” evidence to justify Charter-infringing measures?
As background, in late 2020, Manitoba closed churches while other businesses were permitted to remain operating, such as taxis, in-person university classes, film and tv productions, law offices, and liquor stores; the Winnipeg Jets were allowed to meet and train indoors with their extended crew, and summer Olympic competitors were allowed to train indoors. Outdoor gatherings were reduced to no more than five people, while at the same time hundreds of people could legally gather indoors at big box stores. In court, Manitoba did not produce any evidence that Covid spreads outdoors, or that outdoor gatherings were risky activities.
Lawyer Allison Pejovic stated, “We hope that the Supreme Court of Canada agrees that constitutional issues surrounding closing churches and curbing outdoor protests during a pandemic are worth the Court’s attention and adjudication. Canadians would like to understand whether the Charter’s protections can be easily cast aside during a pandemic, while non-Charter-protected activities with an economic interest remain open and operational.”
