Case information

Charter of rights — Constitutional justification for severe restrictions and prohibitions on religious worship and outdoor assembly — Constitutionality of Emergency Public Health Orders made under The Public Health Act, C.C.S.M. c. P210 — Lower courts dismissing action — Whether state must preserve Canadians’ rights to engage in constitutionally-protected activities during public health crisis before permitting Canadians to engage in non-constitutionally protected activities — Whether reliance on “precautionary principle” satisfies government’s onus under s. 1 to provide “cogent and persuasive” evidence to justify Charter-infringing measures.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicants challenge the constitutionality of various Emergency Public Health Orders (“PHOs”) made under ss. 13 and 67 of The Public Health Act, C.C.S.M. c. P210, (“PHA”). Those orders were made and issued for the purpose of addressing the ongoing public health threat posed by the COVID-19 pandemic.

The application judge issued two written judgments released concurrently. In the first decision, he dismissed the application for a declaration that ss. 13 and 67 of the PHA violate the unwritten constitutional principle that only the Legislative Assembly can make laws of general application and that that authority cannot be delegated to the Chief Public Health Officer or to individual ministers.

In his second decision, he held that the impugned PHOs did not violate ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. He agreed with Manitoba’s concession that, on a prima facie basis, the impugned PHOs infringed ss. 2(a)–2(c) of the Charter. Nonetheless, he found the restrictions imposed by them to be constitutionally justifiable limits under s. 1 of the Charter. He found that the impugned PHOs were not ultra vires (in the administrative law context) and that they met the requirements of s. 3 of the PHA in that they restricted rights and freedoms no more than was reasonably necessary.

The Court of Appeal dismissed the appeal.