Judge rules Manitoba's public health orders were necessary, reasonable and justified

Health order constitutional challenge dismissed A judge has ruled Manitoba's public health orders were neither unconstitutional or an undemocratic delegation of power. Josh Crabb reports.

WINNIPEG — A Manitoba judge has ruled the province’s public health orders were neither unconstitutional nor an undemocratic delegation of power.

Court of Queen’s Bench Chief Justice Glenn Joyal released the ruling Thursday in two decisions stemming from a Charter challenge brought forward by a group of churches.

The decision found the restrictions were a reasonable response to COVID-19 based on credible science.

Lawyers for the applicants, a group made up of seven Manitoba churches and three individuals, argued the province’s COVID-19 restrictions, specifically those in effect from November 2020 to January 2021, infringed on their Charter rights to hold religious, public and private gatherings.

Joyal ruled, as conceded by the province, that “the impugned public health orders do indeed limit and restrict the applicants’ rights and freedoms.”

But in a 156-page decision Joyal wrote they, “are constitutionally justifiable as reasonable limits under s.1 of the Charter.”

Joyal concluded in a separate decision the delegation of power to the chief public health officer, in this case Dr. Brent Roussin, is a constitutional and democratically legitimate way of responding to an evolving and rapidly changing pandemic.

“I am persuaded by the evidence of Manitoba’s experts and I find that the credible science that they invoked and relied upon, provides a convincing basis for concluding that the circuit-break measures, including those in the impugned public health orders, were necessary, reasonable and justified,” Joyal ruled.

Karen Busby, a University of Manitoba law professor, said it’s an outcome several legal experts expected following a two-week trial held this past May.

“There was a legitimate reason to limit the freedom of religion in this context and that’s not a surprise, that’s pretty consistent with what’s been held in other cases across the country,” Busby said.

The Justice Centre for Constitutional Freedoms which represented the applicants said it’s disappointed in the decisions and the unwavering authority given to public health officials. It’s still reviewing the ruling and is considering an appeal.

The organization came under fire in July after Joyal called a special hearing where it was revealed a private investigator had been hired to follow him while he was presiding over the case. Joyal told court at the time the situation would have no impact on his ruling.

Cameron Friesen, Manitoba’s Justice Minister, said in a statement the decisions uphold the government’s position: that the public health orders do not violate the Charter of Rights and Freedoms.

“Those measures are demonstrating their value even now, as we continue to see a stabilizing of the daily case counts, even while other jurisdictions are experiencing very significant case spread and hospitalizations,” Friesen said.

Joyal ruled he found no convincing evidence less intrusive measures might have been equally as effective in responding to the real-time emergency and the impact on Manitoba’s health care system.

Manitoba lawyer Allison Pejovic, who’s representing the applicants, said Thursday any appeal would be restricted to dealing with the measures that were in place when the case was filed.

Pejovic said any challenge to new restrictions on unvaccinated people would require a new legal challenge.