Regina’s Jasmin Grandel and Saskatoon’s Darrell Mills are hoping the Supreme Court of Canada will look at their case after a previous challenge was unanimously dismissed by the Saskatchewan Court of Appeal.
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Two Saskatchewan residents who received multiple tickets for breaking pandemic-related gathering restrictions are hoping that Canada’s top court will take another look at their case.
Jasmin Grandel of Regina and Darrell Mills of Saskatoon attended outdoor protests critical of government-imposed measures to combat COVID-19. Between Dec. 19, 2020 and May 15, 2021, Grandel was ticketed eight times and Mills only once.
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They challenged the constitutionality of the gathering restrictions by arguing the measures violated their freedom of expression, assembly and association, as granted by Canada’s Charter of Rights and Freedoms.
While Saskatchewan Court of King’s Bench Justice Daniel Konkin agreed that their rights had been violated, he found it to be justified under Section 1 of the Charter. The section states that rights and freedoms can be limited, “so long as those limits can be shown to be reasonable in a free and democratic society.”
Grandel and Mills appealed the decision to Saskatchewan’s top court, arguing the lower-court judge made a number of mistakes. However, a three-judge panel for the Saskatchewan Court of Appeal sided with the judge of the lower court and unanimously dismissed the challenge.
According to the appeal decision from May 15, among the arguments presented was the notion that the Court of King’s Bench judge was wrong in treating the alleged violations — freedom of expression (Section 2(b) of the Charter), assembly (Section 2(c)) and association (Section 2(d)) — “as though they were the violation of a single right rather than conducting a cumulative analysis.”
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Konkin specifically found their freedom of expression had been violated (the government conceded this).
The judge wrote that, “so long as the freedom of expression analysis sufficiently accounts for the assemblage and associative rights engaged,” he saw no need to “duplicate the analysis across multiple Charter rights.”
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The Saskatchewan Court of Appeal agreed with this.
Justice Jeff Kalmakoff wrote that “consideration of the interest protected by one is sufficient to account for the other affected rights.”
It’s this area of the case which Grandel and Mills hope the Supreme Court of Canada (SCC) will take another look.
However, it is not guaranteed that the SCC will hear their case. Because the decision from the Saskatchewan Court of Appeal was unanimous, the pair now has to ask the SCC for permission to appeal — in legal terms, request leave to appeal.
Their application requesting leave, prepared by lawyer Andre Memauri, suggests the case presents issues of “national importance.”
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It seeks clarity on issues pertaining to whether a court can “subsume” multiple Charter breaches under one conceded violation.
It also seeks clarity regarding what legal test should be used to determine a freedom-of-assembly breach.
“Freedom of peaceful assembly has gained increasing significance and relevance to Canadians in recent years, particularly in light of COVID-19 restrictions and public societal controversies regarding environmental, economic, political, geopolitical and other issues,” the application states.
“Peaceful assembly is now exceedingly ripe for the exercise of the Court’s role in establishing its underlying values and proper test.”
Memauri handled the initial appeal for Grandel and Mills. He is associated with the legal advocacy group Justice Centre for Constitutional Freedoms.
According to a post on the group’s website, if Grandel and Mills are granted leave to appeal by the SCC, they “will argue that Saskatchewan’s Covid gathering restrictions were primarily an unjustifiable limitation of the freedom of peaceful assembly, which was not centrally considered.”
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The application for leave is dated Aug. 14. It is not yet clear when the SCC will decide whether the case will be heard.
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