Challenging British Columbia’s prohibition on outdoor protest: Beaudoin et al v. British Columbia and Dr. Bonnie Henry

Alain Beaudoin is a Canadian patriot and freedom protest organizer from Dawson Creek, BC, who was fined repeatedly by the RCMP. Mr. Beaudoin, with the Justice Centre’s support, fought back and on March 18, 2021, secured a binding court declaration that British Columbia’s prohibition on outdoor protests was an unjustified violation of Charter freedoms to peaceful assembly and association. [See Beaudoin v British Columbia, 2021 BCSC 512 at paras 137-147 and 251.] Not only was Mr. Beaudoin successful at getting his charges dropped, but many other protesters charged for allegedly violating Covid orders also had their charges dropped as a result of Mr. Beaudoin’s legal success. Mr. Beaudoin further pursued his case at the BC Court of Appeal, while his own charges were still pending, and in doing so secured that Court’s conclusion that Provincial Health Officer Dr. Henry’s vague “expectation” that protestors follow Covid protocols did not have the force of law and could not be enforced. [See Beaudoin v British Columbia, 2022 BCCA 427 at para 169.]

To provide back drop for the case, during a one of the protests in Dawson Creek in December 2020 Beaudoin helped organize, the RCMP demanded that Beaudoin provide documents listing the contact information of each one who attended the freedom rallies. “I have a genuine fear for the well-being of the protestors if I put their names on a list,“ Beaudoin stated. “I will not knowingly aide the government in targeting protesters for exercising their constitutional rights.” Mr. Beaudoin was also expected to ensure that no more than 50 freedom-loving brave Canadians be part of the outdoor gathering. Even though he was working with the RCMP regarding the plans and routes to ensure the safety of all involved, Beaudoin was threatened with charges of $2300 in fines for each outdoor protest and the fine would extend to $230 for each person who attended as well.

On January 8, 2021, the Justice Centre filed a constitutional challenge on behalf of three churches and four individuals against the Public Health Orders of British Columbia Provincial Health Officer Dr. Bonnie Henry, who imposed restrictions on public protests and in-person religious gatherings (See Brent Smith v. British Columbia).

The British Columbia churches asserted that they had made extraordinary efforts to comply with the public health orders, including limiting attendance to no more than 50 persons, pre-registering attendees, rearranging seating to ensure physical distancing, providing hand sanitizer and masks, and enhancing cleaning and sanitizing procedures. Some members could not access online services. For many, in-person gatherings are considered essential to spiritual and emotional wellbeing. Affidavits attesting to the negative effects of prohibitions on in-person gatherings were filed with the Court. These negative effects included loneliness, depression, anxiety, and fear. Although support groups were permitted under the Public Health Orders, Dr. Henry’s Orders prohibited religious communities from gathering for any kind of “worship or other religious service”. 

Meanwhile, the Government of British Columbia allowed hundreds of people to gather at any time in big box stores. Liquor stores and marijuana dispensaries remained open. The government allowed six persons to gather around tables in restaurants and bars. Nevertheless, to members of religious communities, Dr. Henry stated, “Do not attend a service at a church, synagogue, mosque, gurdwara, temple, or other places of worship”. 

In response to the Justice Centre’s constitutional challenge, the British Columbia Government filed an injunction application that targeted the three churches. To justify their order for an injunction, the government cited 180 purported Covid-19 cases associated with religious gatherings in the province. At the time, there had been nearly 90,000 Covid-19 cases in the province. In response to the injunction, the Justice Centre provided the Court with over 1,000 pages of expert evidence, including sworn testimony from an experienced and credentialed Epidemiologist and former Chief Provincial Medical Officer of Health, as well as from an Infectious Disease Specialist.

Just over a month after the case was launched, on February 10th, 2021, the BC Government lifted the ban they had enforced on outdoor protests and expressly permitted outdoor protests, subject to Dr. Henry’s expectation that people follow unspecified (and in fact, at that time, non-existent) guidelines: “… I am not prohibiting outdoor assemblies for the purpose of communicating a position on a matter of public interest or controversy, subject to my expectation that persons organizing or attending such an assembly will take the steps and put in place the measures recommended in the guidelines posted on my website, in order to limit the risk of transmission of COVID-19.”

On February 17, 2021, the Court denied the government’s request for an injunction. 

During court hearings held in Vancouver on March 1-3 and 5, 2021, the government of British Columbia was forced to concede that its prohibition on outdoor protests was unjustified. Lawyers for BC could not point to a single case of Covid associated with an outdoor protest.

On March 18, 2021, Chief Justice Christopher Hinkson of the Supreme Court of British Columbia struck down the Public Health Orders banning outdoor protests.

But Mr. Beaudoin and others continued to face charges for participating in outdoor protest. It seemed, that despite the fact that outdoor protests were now permitted, Dr. Henry’s continued expectation for people to follow guidelines was to motivate enforcement of Covid restrictions against protestors.

With the aid of Justice Centre’s network of lawyers, Beaudoin appealed and challenged these continued “expectations.” The month after Beaudoin filed his written argument (see pages 28-29), the BC Crown dropped the charges against him on January 28, 2022 along with the charges of any other persons ticketed for attending outdoor protects in alleged violation of public health orders. Several cases were settled simply by mentioning the results of the Beaudoin case in a letter to the ticket office.

In the BC Court of Appeal decision released on December 16, 2022, Justice Fitch stated at paragraphs 169-170:

“I do not regard the PHO’s statement that individuals organizing or participating in outdoor protests after February 10, 2021 were expected to observe protective measures to be the equivalent of an order… [T]he expectations expressed by the PHO on February 10, 2021, cannot reasonably be regarded as an order, the breach of which would attract sanctions….It follows that neither Mr. Beaudoin nor anyone else is prohibited from engaging in outdoor protests arising out of pandemic-related public health orders.”

Following this judgment, the Justice Centre is not aware of a single person who continued to face charges for allegedly violating public health measures in BC for participating in outdoor protests.

Mr. Beaudoin, as someone who loves his country and is the son of veterans of the Canadian Armed Forces, warned (at paragraph 5): “I believe the BC government and Canadian federal government have overstepped their legal powers. They have imposed restrictions that are draconian in nature. I believe our Constitution protects us from these types of tyrannical actions, yet it is being ignored in the name of ‘safety.’ I believe this is not what a free society does, and that it is dangerous to all our rights and freedoms.”

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