The City of Prince Albert, Saskatchewan maintained a courtesy flag pole in Memorial Square at City Hall and permitted groups or organizations to fly the flag “to help increase public awareness of their programs and activities.” The City of Prince Albert regularly granted applications to use the courtesy flag pole, and issues proclamations in support of various causes, including Falun Dafa, hunger awareness, naturopathic medicine, national public works, paramedics services, motorcycle awareness, occupational health and safety, LGBT Pride, gender diversity, transgenderism, literacy, seniors, and Saskatchewan Ukrainians.
Prince Albert Right to Life Association (PARLA) is a non-profit organization, comprised of Prince Albert and area residents, which seeks to promote the sanctity of life at all stages of development. PARLA’s work includes hosting Pro-Life events such as “Celebrate Life Week” and “Life Chain”, as well as other activities, such as providing aid to women and families with unplanned pregnancies.
As explained in the filed affidavit of Valerie Hettrick, PARLA had been permitted to raise a flag on the City’s courtesy flag pole for “Celebrate Life Week” for the past 20 years. Since 2007, PARLA has flown the same pink and white flag with a logo of “Umbert the Unborn”, a cartoon fetus. The phrases “Celebrate Life Week” and “Please Let Me Live” also appear on the flag.
However, on May 4, 2017, PARLA was informed by Prince Albert Mayor Greg Dionne that their flag could not be raised as it was not a “national flag” or “nationally recognized flag”. The Mayor stated that Celebrate Life Week would still be proclaimed.
PARLA sent a letter to the Mayor, requesting that he clarify in writing the requirement for a “national” flag and specify what bylaw or policy that requirement was based on. PARLA never received a response to its letter.
The Mayor later informed the media that PARLA’s flag, used since 2007, would never again fly at City Hall, but that he would be open to a different pro-life flag.
The Justice Centre has filed a court application against the City of Prince Albert, seeking a reversal of the City’s rejection of the Prince Albert Right to Life Association’s (“PARLA”) application to continue with its annual raising of a pro-life flag.
The court application, filed on November 6, requested judicial review of the City’s decision to deny PARLA’s application to raise their flag, and a declaration that the decision was “arbitrary, unreasonable and contrary to the principles of natural justice and procedural fairness.” The court application further sought a declaration that the decision to deny a flag raising permit violated sections 2(b) of the Canadian Charter of Rights and Freedoms. Finally, the application sought a court order to permit PARLA to raise their flag on the City’s courtesy pole.
A hearing was held September 25, 2018 in Prince Albert. Prior to this hearing, the Mayor brought forward a motion to amend the Policy by ending the practice of allowing access to a Courtesy flagpole. The motion passed, meaning that even if successful in its court application, PARLA would not be able to fly its flag on the City’s flagpole.
In its decision, the Court rebuked the City for its “mishandling of the application tendered by PARLA,” noting that “It is evident that the City did not follow its own Policy or proceed in a procedurally fair manner.” The Court concludes that it was unable to apply “any reasonable analysis [of the City’s decision], because of the lack of intelligible or transparent reasons.”
The Court dismissed the application and ordered $6,000 in costs against the City.
The Justice Centre filed a narrow appeal to the Saskatchewan Court of Appeal on the basis that the lower court should have issued a declaration that the City violated PARLA’s Charter freedom of expression. The City cross-appealed on a broad basis.
The hearing of this matter took place January 22, 2020, before the Court of Appeal in Saskatoon.
On August 10, 2020, the Saskatchewan Court of Appeal upheld an award of costs against the City for its misconduct in handling PARLA’s application to fly its flag, but declined to issue a declaration that the City violated the Canadian Charter of Rights and Freedoms in the unique circumstances of the case. The Court’s decision affirmed the award of costs against the City stating at paragraph 93 of its decision: “PARLA, after making the application, was stonewalled by the City until it became impossible to fly the flag as had been done in past years. Members of the community are entitled to better treatment than this from public officials.” The Court of Appeal upheld the lower court’s ruling that, since the City had entirely rescinded its policy allowing community groups to use the flagpole, the matter could not be referred back to the City to reconsider its decision and a declaration of a Charter infringement in such circumstances would ultimately be meaningless.
“Charter freedoms need to be defended or they will be lost,” stated lawyer Marty Moore. “When a municipality violates citizens’ rights, the Charter tasks our courts with the responsibility of vindicating citizens’ rights and providing a just and appropriate remedy for the violation, which may be a court declaration.”
“We appreciate the Court’s recognition that our clients were ‘stonewalled by the City until it became impossible to fly the flag’, but believe it is necessary for courts to expressly uphold citizens’ Charter rights against unreasonable infringement by government,” continued Moore.