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Manitoba’s public health orders ‘justified and reasonable,’ Chief Justice rules

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Manitoba’s far-reaching public health orders limit the rights and freedoms of the populace, but are justifiable and reasonable, a Manitoba judge has decided – Oct 21, 2021

Manitoba’s far-reaching public health orders limit the rights and freedoms of the populace, but are justifiable and reasonable, a Manitoba judge has decided.

The court case challenging the chief provincial public health officer’s ability to issue the orders was originally brought forward in February.

Seven Manitoba churches, represented by the Justice Centre for Constitutional Freedoms, argued that the democratic process had been sidelined, and the orders violated their fundamental rights and freedoms.

Read more: Manitoba churches question Dr. Roussin’s pandemic powers in court hearing

Chief Justice Glenn Joyal ruled that the public health orders, which have limited Manitobans’ abilities to gather in groups or at times attend certain businesses, had met the requirements of The Public Health Act insofar as they “restricted rights and freedoms no greater than was reasonably necessary in response to the COVID-19 public health emergency.”

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He ultimately dismissed the churches’ applications.

Read the decisions below:

More specifically, the churches had relied on the criminal code, which prohibits unlawful obstruction of religious service by threats of force, to persuade the court that their rights were being infringed.

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Joyal concluded that public health orders, as legislative instruments, can’t be seen as threats of force in the context of the criminal code, and that people were still free to perform services remotely.

Furthermore, the orders had been made lawfully.

During often heated and confrontational cross-examinations, the health-care leaders were questioned about capacity in hospitals and intensive-care units, as well as the efficacy of certain COVID-19 tests.

Joyal said the case was one of the first in Canada where a church’s constitutional challenge also attacked the science that a government relied on to make its decisions.

But, the judge said, after the restrictions were put in place, COVID-19 numbers began to decline in Manitoba, which was consistent with what the province’s science and modelling predicted.

“Manitobans flattened the curve and avoided a disastrous situation,” said Joyal.

The decisions, which read in excess of 150 pages, also confirms the province’s stance that the orders were no more restrictive than was necessary, as required by law.

The COVID-19 situation in November 2020 had become so severe, Joyal explains, that Dr. Brent Roussin, chief provincial public health officer, had a strong basis that “any lesser restriction would not have sufficed.”

The chief justice accepted the province’s approach, given that the orders were adjusted every two to four weeks as the COVID-19 situation changed, and that the orders were applied regionally when possible.

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Click to play video: 'Manitoba churches question Dr. Roussin’s pandemic powers in court hearing' Manitoba churches question Dr. Roussin’s pandemic powers in court hearing
Manitoba churches question Dr. Roussin’s pandemic powers in court hearing – Feb 9, 2021

He noted Manitoba had not implemented a curfew or “shelter in place” order, which would have restricted movement almost entirely, and that the public health orders were “tailored to the nature of the risk.”

The churches also argued that there was no connection between the province’s orders and their objectives, and that the effects outweighed any positive outcomes.

To that end, their lawyers put forward that the modelling data Manitoba relied on was flawed and the province hadn’t conducted a risk assessment or cost-benefit analysis.

Read more: Manitoba minister says only God has authority to make people wear masks

The court heard from several witnesses on both sides, including various medical professionals, and Dr. Roussin himself, whose testimony would prove “particularly significant.”

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Dr. Roussin explained that the methods used by health officials were consistent across the country, and that experts in psychiatry and psychology confirmed the benefits of the measures outweigh the negative effects they may have on people.

The Chief Justice also concluded that delegating authority to the chief public health officer to make such decisions was neither unconstitutional nor undemocratic.

The churches had put forward that such wide-ranging decisions should be left up to the elected legislative assembly, however Joyal agreed with the province that such a requirement would “make it virtually impossible to respond to an emerging and evolving public health crisis.”

-with files from The Canadian Press

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