Moose Jaw Provincial Court Judge Brian Hendrickson has denied an application to dismiss charges laid under the Public Health Order during the COVID-19 pandemic.
Hendrickson gave his ruling on Nov. 19, 2022, for an application made for Mark Friesen, Jasmin Grandel, Richard Wintringham, Chey Craik and Hinderager Holdings, which owns The Beacon in Caronport.
The defendants were represented by Elaine Anderson, while Rob Parker was the Crown prosecutor and Noah Wernokowski and Theodore Litowski represented the Attorney General of Saskatchewan.
Friesen, Grandel, Wintringham and Craik were charged on Jan. 16, 2021 in Moose Jaw for failing to comply with the Public Health Order by participating in an outdoor gathering for more than 10 people under the Public Health Act, 1994 and The Disease Control Regulations contrary to section 61 of the Public Health Act, 1994.
Hinderager Holdings was charged on Oct. 27, 2021 for failing to comply with the Public Health Order dated Oct. 19 by not asking for proof of vaccination or a negative COVID-19 test within 72 hours at the point of entry.
In its application, the defence argued that section 25.2 of the Disease Control Regulations and the Public Health Order are inconsistent with provisions in the Constitution Act, 1982, making the Regulations and the Public Health Order null and void.
Anderson argued in her submission that section 25.2 of the Regulations transform legislative power into an administrative power, which is not legal as it exceeds the powers given under section 25.2 of the Public Health Act. In other words, the Province of Saskatchewan exceeded its authority when it enacted the Regulations and the Public Health Order.
The Crown’s position was that the Regulations were not beyond the province’s legal powers, the Regulations are consistent with the Constitution Act, 1982, and the judge has no jurisdiction to make a dismissal order as requested.
In his decision, Hendrickson looked at three issues. First, was the Regulations beyond the power of its parent Act, the Public Health Act, 1994? Secondly, were the Regulations inconsistent with the Constitution Act, 1982? And, finally, if the answer is yes to any of these, what remedy, if any, should be applied?
On the first issue, Hendrickson wrote that he was satisfied in purpose and scope that the Public Health Act’s purpose is to protect the health and well-being of the people of Saskatchewan. He noted that the Act sets out broad measures that may be taken to accomplish that objective, meaning ‘no’ the Regulations were not beyond the power of the Public Health Act.
In his ruling, Hendrickson wrote that the Public Health Act allows for the establishment of measures to control the spread of communicable diseases and allows for other measures such as placarding or shutting down premises to prevent the control of a health hazard or allowing for the seizure of food.
As for the argument that section 25.2 of the Regulations illegally transforms legislative power into administrative power, Hendrickson’s decision said there is a distinction between the powers set out in section 46 of the Public Health Act and the power set out for the Minister in the Regulations.
“The language of the sub-delegation does not simply repeat the language of the delegation and the subdelegate is not empowered to do the exact same thing the delegate is empowered to do,” Hendrickson wrote in his decision.
For issue two, the defence’s position was that unwritten constitutional principles and principles associated with the rule of law preclude the government from imposing the Regulations.
Hendrickson cited the Supreme Court ruling in Toronto v Ontario (Attorney General) in which unwritten principles of democracy “cannot be used as a device for invalidating otherwise valid provincial legislation.”
Hendrickson ruled that case law says “delegations such as the one effected by the Regulation are consistent with the constitution.”
Finally, on issue three, Hendrickson agreed with the Crown that he has no jurisdiction to make an order or determination as requested in the application. However, because he found that the Regulations were not beyond the power of its sister act and the Regulations were consistent with the Constitution Act, 1982, the issue of a remedy is not needed as the application was dismissed.