On Dec. 3, Canadian Appliance Source sought a court ruling to allow its stores to open, arguing that it stands to lose millions due to the closure. Justice Frederick Myers of the Ontario Superior Court postponed the hearing until Dec. 8.
“I have little understanding of the public interest assessment behind the COVID-19 regulatory regime. Everyone sees the apparent unfairness of small stores closing while big box stores remain open,” he wrote on Dec. 3, according to Blacklock’s Reporter.
Myers added: “Are there issues about trying to change the public’s habits during the shutdown? That is, are stores shut down not just for the risks they present, but to try to get people to see that it is not business as usual and they should stay home?”
As of Dec. 9, the court was still deliberating.
It’s the first time the legality of COVID-19 restrictions have been tested in court. However, in the public square, defiant church members in Ontario, British Columbia, and Manitoba; restaurant owner Adam Skelly in Toronto; and Ontario independent MPP Randy Hillier have made headlines for testing lockdown rules and either have already earned fines or may face fines.
Under these circumstances, the Justice Centre for Constitutional Freedoms reported a win in Manitoba on Dec. 8. There, the provincial government reversed a previous ban on drive-in events, such as worship services in church parking lots, provided the participants stay in their cars.
The centre said in a news release that this decision followed its Dec. 2 letter to the government warning that the ban on drive-in church services violated the Charter freedoms of religion and peaceful assembly.
In the case of Skelly, who was arrested on Nov. 26 for violating the Reopening Ontario Act, the court has explicitly ordered him to comply with current “grey zone” restrictions—meaning Adamson Barbecue will stay closed and he must stay at least 200 metres away—in addition to several charges.
Three supreme court decisions in the United States struck down similar restrictions—one favouring a California church, and two in New York state involving Roman Catholic and Jewish places of worship. In the wake of those decisions, the Canadian Civil Liberties Association (CCLA) says Canada lags behind in safeguarding human rights during these extraordinary times.
“This is mind-blowing to me. In Canada, we have zero Supreme Court of Canada decisions on any pandemic regulation by any level of government,” writes CCLA executive director Michael Bryant in a Dec. 4 media statement.
“What is being achieved in the U.S. and other nations even more litigious (like Germany, Sweden, Israel) is more rigorous legal attention paid to human rights. The baby isn’t thrown out with the bath water—there is plenty of deference to executive justifications for proportionate, empirically-sound restrictions. It’s simply more democratic.”
The same day Skelly was arrested, on the eve of the American Thanksgiving, the U.S. Supreme Court’s 5–4 decision in favour of the Roman Catholic Diocese of Brooklyn struck down New York state Governor Andrew Cuomo’s restrictions on gatherings at houses of worship. Both the diocese and a consortium of synagogues argued that the rules unfairly targeted them and violated their First Amendment rights.
“In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as ‘essential’ may admit as many people as they wish,” notes the majority decision that views churches and synagogues as no different from any other business.
“And the list of ‘essential’ businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential.”
Skelly has put forth a similar argument—that his freedom to earn a living is being violated, and that while nearby big box stores and other large retailers can remain open as essential services, restaurants and smaller retailers are denied similar exemptions.
“The measures in [the Reopening Ontario] act have to be proportionate and they’re not. They’re disproportionately affecting small businesses,” he said during a Nov. 28 anti-lockdown parade in Toronto inspired by his civil disobedience.
Canadian constitutional law expert and Queen’s University professor Bruce Pardy says Ontario Premier Doug Ford or Toronto Mayor John Tory could find themselves in New York Governor Andrew Cuomo’s shoes, although “given the different predilections of our own Supreme Court, it is not at all a foregone conclusion.”
“Most of our Supreme Court justices seem inclined towards the ‘living tree’ approach to constitutional interpretation, in that they’re less inclined to be governed by the text and more by policy and values,” Pardy said in an interview.
“Even in the American context, one can see how judges would resist coming down on the side of the religious institutions by reading dissenting U.S. justices in the Roman Catholic Diocese of Brooklyn case. A majority of justices who sit on the Supreme Court of Canada adhere to ideologies aligned with the dissenting U.S. judges.”
Dissenters in the U.S. decision note overriding health implications and draw clear distinctions between religious gatherings and conducting commerce.
“The applicants’ claim of a constitutional violation … is far from clear. At the same time, the public’s serious health and safety needs … call for swift government action in ever changing circumstances,” writes dissenting U.S. Justice Stephen Breyer.
“We have previously recognized that courts must grant elected officials ‘broad’ discretion when they ‘undertake to act in areas fraught with medical and scientific uncertainties.’”
Toronto employment lawyer Kenneth Krupat has handled many human rights cases and says that the success of any legal challenge of pandemic restrictions depends on two factors. One is whether the complainant can prove that the restrictions did indeed infringe rights. The other is whether the authorities can prove that the restrictions were “demonstrably justifiable restrictions in a free and democratic society.”
“It really depends on the evidence. Ultimately, I think Canadian courts are likely to give a fair bit of latitude to provinces to make rules they believe are based on epidemiological reasoning that is substantiated,” Krupat told The Epoch Times.
“At the same time, if churches are singled out in an arbitrary way and the proof is not there to show why it was necessary to impose certain restrictions, that type of decision might not even survive a Section 1 Charter challenge.”