Saskatchewan Government lockdown measures violate Charter: legal analysis

Sep 14th, 2020

 

REGINA: The Justice Centre has released a comprehensive Charter analysis of the Saskatchewan Government’s lockdown measures, which violate the Charter freedoms of citizens to move, travel, assemble, associate and worship, all while crippling society and the economy.

Entitled “The Unjustified Persistence of Lockdowns,” this Charter analysis of Saskatchewan’s response to COVID-19 addresses:

  • how the Government’s lockdown measures violate Charter freedoms;
  • why the Government has failed to justify these violations as required by the Charter;
  • the economic harm and negative impact on health care, caused by lockdown measures;
  • the inaccurate and unjustified modelling documents released by the Saskatchewan Health Authority.

The Unjustified Persistence of Lockdowns” explains why and how the Saskatchewan Government has not met its constitutional obligation to justify its restrictions on Charter rights and freedoms.

The Saskatchewan Government claims to have locked down the province on the basis of models predicting 3,075 to 8,370 COVID-19 deaths (and 10,000 deaths without lockdown measures). The Government prohibited gatherings over 10 persons, shut down schools and canceled many surgeries, to name just a few of its lockdown measures.

However, when the inaccuracy of its COVID-19 modelling became apparent, the Saskatchewan Health Authority claimed its earlier projections were based on “no interventions being taken”. This is patently incorrect: Saskatchewan had expressly incorporated the “impact of various public health interventions”, specifically “current levels of COVID-19 measures including testing, tracing and physical distancing”, into its earlier modelling. The Government’s updated modelling still projects 3,050 COVID-19 deaths, but to date there have only been 24 deaths in Saskatchewan.

The Saskatchewan Government’s lockdown measures have brought with them negative consequences which are clearly foreseeable and ought to have been anticipated. Destroying people’s businesses and livelihoods has measurable harmful impacts on people’s health and wellness. Unemployment, poverty and social isolation all too frequently lead to increases in anxiety, depression, mental illness, alcoholism, drug overdoses, family violence and suicide.

The cancellation of medical procedures has resulted in predictable consequences as the death of Yorkton resident Aaron Ogden tragically illustrates. His CT scan, scheduled for June of 2020, was cancelled weeks before his August 15 death from a blood clot, which could have been detected by the scan.

“The Unjustified Persistence of Lockdowns” also debunks an inaccurate claim made by Saskatchewan’s chief medical health officer, Dr. Saqib Shahab, that “COVID does not discriminate by age or other factors — it’s a risk for all of us.”

This statement is demonstrably false. The data released by governments shows that COVID-19 risk is clearly linked to age and other factors, such as heart disease, diabetes and those who are immunocompromised, typically referred to as co-morbidities. For example, the median age of death from COVID-19 is 84 in Alberta, and 85 in BC. It remains unclear why Saskatchewan, unlike other provinces, does not report the age of those who have died with COVID-19, when this data is readily available.

“Continued government restrictions on Charter freedoms are not narrowly focused on protecting the vulnerable, and therefore fail to meet the constitutional requirement that they be specific and serve a clearly identified goal or purpose,” stated Marty Moore, staff lawyer with the Justice Centre. “Our Charter analysis shows that the Government has not justified the serious restrictions it has imposed on Saskatchewan residents.”

“Saskatchewan residents have endured severe lockdown restrictions for months. Sadly it appears that many of the Government’s decisions have been based on fear not facts,” continues Moore.

“With lockdown measures continuing to be imposed in areas of the province that don’t have a single active COVID-19 case, it is remarkable that elected representatives in government and on school boards evidently believe their continued violations of people’s rights and freedoms are justified.”

Excerpt from The Unjustified Persistence of Lockdowns

In March of 2020, the Saskatchewan Government’s lockdown measures began to violate the Charter freedoms of citizens to move, travel, assemble, associate, and worship, as well as their ability to work and to pursue employment.  We have argued that these limitations were not reasonable or “demonstrably justified” and thus not in keeping with the Charter.  The daily routines of millions of Saskatchewanians, including their ability to earn a living to support themselves and their loved ones, were affected when the most significant centres of the public sphere were ordered to close.  The daily ebb and flow of economic activity was likewise devastated when many important centres of economic activity were ordered to close.  Finally, thousands of Saskatchewanians were affected when most hospital resources were re-allocated for COVID-19 patients only.

It will be months (perhaps years) before we know the full death toll of the decision to cancel thousands of medically necessary surgeries, after counting all the cardiac patients who died while waiting for heart surgery, and after counting additional cancer deaths caused by lack of timely diagnosis and treatment.  Meanwhile, hospitals have not been operating at anything approaching full capacity.

On April 23, the Saskatchewan Government revealed its phased Re-open Saskatchewan Plan for the province.  Since then, many features of the economy and society have been permitted to resume operations in part, under strict and often costly conditions.  Further, the government has not informed the public when long-term restrictions—such as those on mass public gatherings—will be repealed.

In September of 2020, the Saskatchewan Government must answer some crucial questions.  Can the Saskatchewan Government demonstrably justify any ongoing conditions, restrictions and partial closures in light of the relatively low risks from COVID-19 in the province?  Are these continued restrictions based on facts and evidence, or on unfounded fear caused by speculation?  When will the government stop violating Charter freedoms by imposing and enforcing lockdown measures that appear to have caused more harm than good?

The Charter requires the Saskatchewan Government to consider carefully and thoughtfully the full impact of lockdown measures, including all the social and economic harm, and adverse impact on the physical and mental health of its citizens.  The Charter requires actual evidence—not mere speculation, theorizing or assertions—to prove that lockdown measures achieved results that would not have been achieved by measures that do not violate the Charter.

While lockdown measures were presumably imposed with the good intention of saving lives, good intentions do not meet the Charter’s test of demonstrable justification.  The Charter places the onus on the Saskatchewan Government to show that its Charter-violating measures actually preserved the most lives possible, and that lockdown measures did not inadvertently harm more lives than they saved.  The government must now consider—carefully and comprehensively—how many lives have been lost and how many people have been impacted negatively by the lockdown measures, and in what ways.  The Saskatchewan Government certainly has sufficient resources to monitor and track the positive and negative impacts of government policies on its citizen base.  If the Saskatchewan Government undertakes this task, it will at least fulfil its Charter obligation to calculate, analyze, and monitor the harms that have been, are being, and will be caused by lockdown measures.

(1) “Province Announces Re-Open Saskatchewan Plan.” Saskatchewan Government. April 23, 2020.
https://www.saskatchewan.ca/government/news-and-media/2020/april/23/reopen-saskatchewan-plan.
(2) Ibid.