A Justice Centre constitutional challenge against Manitoba public health orders lost at appeal..Justices Marc Monnin, Diana Cameron, and Karen Simonsen issued their unanimous decision June 19 in the matter of Gateway Bible Baptist Church et al. v. Manitoba et al..“The Justice Centre for Constitutional Freedoms is disappointed with Manitoba’s Court of Appeal … where the court found no errors in the application judge’s decision,” read a Justice Centre press release..“The decision will be reviewed thoroughly, and an update will be provided in due course with respect to potential next steps.”.The case concerned Manitoba’s public health orders which restricted public gatherings to five people between Nov. 11, 2020 and Jan. 22, 2021. The applicants included seven churches and three individuals..They claimed Sections 13 and 67 of the Public Health Act (PHA) were an unconstitutional delegation of the powers of the legislature. They also argued those sections violated Sections 2, 7, and 15 of the Canadian Charter of Rights and Freedoms. Thirdly, the applicants wanted the sections declared ultra vires (of no effect) because they were greater than “reasonably necessary” as required under Section 3 of the PHA..In 2021, the application judge, Chief Justice Glenn Joyal, sided with the province on all three aspects. He agreed the orders curtailed constitutional rights, but said the interventions were justified under Section 1..The applicants appealed each aspect of Joyal’s ruling as being in error. However, the appeal judges ruled no errors were made and agreed with Joyal’s statement:.“When examining the benefits of Manitoba’s response in the face of the threat of such a deadly pandemic, it is reasonable and rational to conclude that despite the undeniable hardships caused by the limitations on fundamental freedoms, the salutary benefits far outweigh the deleterious effects.”.In his Oct. 22, 2021 decision, Joyal also said “those making decisions quickly and in real time for the benefit of the public good and safety” were owed “a margin of appreciation” and that judges should keep “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.”.Church appellants in the case included Gateway Bible Baptist Church, Pembina Valley Baptist Church, Redeeming Grace Bible Church, Grace Covenant Church, Slavic Baptist Church, Christian Church of Morden and Bible Baptist Church. They were represented by E. M. Meehan, A.K. Pejovic, and T. S. G. Slade..Individual applicants included Thomas Rempel, a deacon at the Reformed Grace Bible Church, Church of God minister Tobias Tissen, and Ross MacKay, who attended a “Hugs Over Masks” rally in Manitoba. Tissen and MacKay received tickets that imposed fines for failing to comply with public health orders..Andre Schutten of the Association for Reformed Political Action Canada had intervener status and argued in favour of the applicants. C. P. R. Murray and S. R. R. Thompson represented the respondents, which included the province, Dr. Brent Roussin and Dr. Jazz Atwal, Manitoba’s chief and acting deputy chief public health officers, respectively.
