Court to hear challenge to Saskatchewan’s Covid gathering limits

SASKATOON, SK: The Justice Centre for Constitutional Freedoms announces that the Saskatchewan Court of Appeal will hear the appeal of Jasmin Grandel and Darrell Mills on Tuesday, February 6, 2024, at 10 AM CT, at 520 Spadina Crescent East, in Saskatoon. Ms. Grandel and Mr. Mills challenge Saskatchewan’s former ban on outdoor gatherings of more than 10 persons as an unjustified violation of their Charter freedom of peaceful assembly and other Charter rights and freedoms.

From March 17, 2020, until July 11, 2021, Saskatchewan imposed various prohibitions on outdoor gatherings, including limiting them to only 10 people. At the same time, Saskatchewan allowed more than 10 people to meet indoors. Jasmin Grandel and Darrell Mills attended various peaceful outdoor protests in 2020 and 2021, resulting in hefty fines for violating Public Health Orders.

At the time, Jasmin Grandel was a kinesiology student at the University of Regina, with a young son in kindergarten. She was concerned with the inconsistency of the Public Health Orders and with their detrimental psychological and economic effects. She feared that the Orders would negatively impact small businesses, leading to unemployment and poverty for families.

Darrell Mills, who also participated in peaceful outdoor protests, is a resident of Saskatoon with 30 years of experience in mechanical construction. He is certified in Mask Fit Testing and trained in supplied air breathing systems. He was concerned about the negative health impacts of improper mask use.

While outdoor gatherings were restricted to a maximum of 10 persons for certain periods, the province permitted numerous public indoor gatherings that far exceeded 10 persons. At the same time, Saskatchewan Chief Medical Health Officer Dr. Saqib Shahab stated that “outdoor gatherings while observing physical distancing are better than indoor gatherings.” 

On June 5, 2020, then-Regina Police Chief Evan Bray, along with many other officers, attended a large Black Lives Matter rally in Regina with hundreds of people, thereby violating existing public health orders and garnering significant media attention. At the time, Saskatchewan Premier Scott Moe said, “…my assumption is that the law enforcement officials have used their judgment with respect to this particular rally…” Dr. Shahab called it a “special event,” and no one was charged with breaching public health orders. Six months later, numerous Saskatchewan residents were charged and prosecuted for violating public health orders because they, like participants in the Black Lives Matter rally, had peacefully protested outdoors.

In April 2021, lawyers provided by the Justice Centre filed a constitutional challenge to the restrictions on outdoor gatherings, on behalf of Ms. Grandel and Mr. Mills. The Originating Application challenges these restrictions for violating the Charter freedoms of thought, belief, opinion and expression, association and peaceful assembly. The Application also suggests that pro-freedom protests against government lockdown policies have been especially targeted by law enforcement.

At trial, an eminent infectious disease specialist provided expert evidence that outdoor transmission of Covid was negligible, where physical distancing could be practiced and where single-day gatherings with no indoor component could take place. The government did not present evidence that Covid was transmitted at outdoor gatherings. Instead, they relied on the ‘precautionary principle’ put forward by its public health expert that lockdown measures should be taken even if “cause and effect” had not been fully established scientifically.

“It appears that lockdown harms were not considered by the government or by the court, when applying this ‘precautionary’ principle. Neither the Saskatchewan government nor the lower court wanted to take precautions against the physical, mental, social, financial and economic harms that lockdowns inflicted on people,” stated John Carpay, president of the Justice Centre. 

On September 20, 2022, Justice D. B. Konkin of the Court of King’s Bench of Saskatchewan upheld the government’s restrictions on outdoor gatherings as justified violations of Charter freedoms. Justice Konkin assessed only the breach to freedom of expression, representing only one of the various Charter rights alleged to be breached by the Applicants. In his decision, he wrote, “In a state of public health emergency wreaking severe havoc on the health of Saskatchewan residents, Sask [sic] was burdened with the immense task of balancing multiple interests.”

Andre Memauri, lawyer for Ms. Grandel and Mr. Mills, stated, “Our infectious disease specialist made it clear at the lower court that the outdoor transmission of Covid-19 was negligible, much like every other respiratory illness in history. There was no compelling basis for the Saskatchewan government to impose such extreme restrictions on people’s rights to assemble, express themselves and associate outdoors. The rule of law means that laws should be enforced equally, but the Saskatchewan Government encouraged and supported Black Lives Matter protests outdoors in large numbers while ticketing people who six months later protested the violations of their Charter freedoms.”