Wednesday, 26 January 2022

The Law vs a Press Release: Are political gatherings banned under the Mandatory Order?

The Law vs a Press Release: Are political gatherings banned under the Mandatory Order?

The ticketing of a counter protester at an anti vaccination rally last weekend in Fredericton serves as an opportunity to discuss why the Mandatory Order under the Emergency Measures Act is not an ideal tool by government to respond to the covid-19 pandemic. The Mandatory Order bypasses the normal government policy development processes creating both vagueness and drafting errors. Vague laws are a friend to no one. They do not assist police officers in the enforcement of the law and they also impact citizens who are trying to understand their legal obligations. The discrepancy between the Mandatory Order and the government’s own press releases raises confusion as to whether political gatherings are banned under the level 3 winter plan. A review of the Mandatory Order clearly states that political gatherings are lawful activities. Accordingly there should be no tickets issued for merely participating at a political gathering.

Source of the Mandatory Order

Unlike the Covid-19 Regulations under the Public Health Act, the Mandatory Order is not formally approved by Cabinet. Although Cabinet may be involved in the policy implementation of a Mandatory Order, pursuant to section 12 of the Emergency Measures Act, the Minister of Public Safety has the sole legal authority to issue a Mandatory Order. Since March 2020, this unconventional policy process has resulted in a series of drafting errors or policy overreaches.[1] I have written before that the doubling of fines from $240 to $480 has no basis in law. 

Almost 2 years into the pandemic, New Brunswick remains the sole maritime province using its Emergency Measures Act as the primary source of public health rules. This is problematic as it creates a policy disconnect between guidelines outlined by Public Health and the Mandatory Order as drafted by Public Safety. Based on the current Mandatory Order, it is not reasonable to state that political gatherings are prohibited under level 3 Public Health restrictions. However, the Public Health guidelines state that all gatherings are prohibited. This ambiguity highlights that Cabinet as a whole and the Minister of Health, as the Minister responsible for the Public Health Act, should strongly consider reasserting their respective legislative authorities by transferring all public health powers to the Public Health Act and terminating the state of of emergency to ensure integrity of the rule of law.

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The January 22, 2022 Protest

On January 20, 2022 Fredericton police issued the following statement ahead of the demonstration:

During the protest at city hall, an individual engaging in a counter protest was formally issued a ticket for “failure to comply with direction, order or requirement” under s.24(1)(b) of the Emergency Measures Act”. [2]

This is the prescribed wording as the Provincial Offences Procedure Act does not allow for increased detail on the exact offence alleged to have been committed. Separately, I note that the fine amount issued is in non compliance with the Provincial Offences Procedure Act.  However a video of the interaction between the individual and the police was posted online. The police apparently issued a ticket that the individual “is in contravention of the order to not assemble.”[3] I will not discuss the factual circumstances as to why a particular individual was ticketed but rather the conflicting messaging on what is permitted by law and what is outlined in communications products on whether it is an offence to be assembled for a political gathering.

Public Health Communications

If you are basing your view on what are permitted level 3 activities on Public Health guidelines,  you can reasonably assume that political gatherings such as a demonstration are prohibited due to the following point in the January 13, 2022 news release:

  • Public gatherings are not permitted, and gyms, entertainment centres, spas and salons are not allowed to operate.[4]

Further the alert level webpage has similar information:

The legal rule under the Mandatory Order

An examination of paragraph 7 of the Mandatory Order contradicts the stated general prohibition on all gatherings outlined by Public Health.

In this situation, the drafters of the order chose to be specific in defining what is a gathering: it "implies common intent or purpose associated with dining, socializing, celebration, ceremony, entertainment or recreation".  Although a political activity may involve some socializing, it is not its common intent. By the very definition in the Order, it suggests that a political gathering is a permitted and lawful activity. This would make sense as political speech and the corresponding right to peaceful assembly under the Charter have an elevated constitutional status compared to a gathering associated with dining to enjoy maple curry chicken penne.

The point is that no matter how distasteful or controversial the views expressed by the demonstrators are, within certain limits, the mere fact that they are assembled at city hall itself does not make this outdoor gathering unlawful under the Mandatory Order.  Similarly if someone wishes to peacefully engage in a counter protest, that is their constitutionally protected right which is not affected by the Mandatory Order.

Mask Wearing: A clearly defined Public Health restriction

Some individuals who were present at the political gathering may be in violation of the Mandatory Order if they are within 2m of another person outside their household bubble under paragraph 27.

This is a reasonable limitation on an individual’s right to peaceful assembly. There is a strong nexus related to mask wearing and mitigating the impacts of transmission of COVD-19. When rephrasing the situation from one of constitutional rights to one of simply non compliance with sensible public health rules,  the lack of compliance and also enforcement of this rule can raise a certain degree of frustration by many.. Most people adhere to the public health rules as a function of civic duty. The right to peaceful assembly does not confer the right to be free from consequences. Presently, refusing to wear a mask is a form of civil disobedience which means that there must be a corresponding consequence.  In this manner, the Charter right of peaceful assembly can be easily distinguished from Public Health rules. Wearing a mask to protect public health is a minimal impairment of a right.

Discussion

This disconnect between the legal text of the Mandatory Order and the Public Health press release raises questions:

  1. Did the drafters intend to ban political gatherings and the Mandator Order contains a drafting error? or,
  2. Are Public Health and law enforcement misinterpreting the drafter’s intent regarding gathering restrictions?

Government intended to ban political gatherings?

If this is a drafting error and government wishes to prohibit all political activities, it is concerning. The right to peaceful assembly is a constitutionally protected right. There is a high bar to meet before banning all aspects of political gatherings. There may be valid pubic health reasons to ban political gatherings, it should be a measure of last resort.  If Cabinet intended to ban all forms of outdoor political gatherings, then government has an obligation to provide this clarity and to indicate why a less rights infringing measure such as mask wearing is insufficient.

Nova Scotia Precedent

Last summer, the Nova Scotia government was granted an injunction that prohibited all gatherings including political assembly in response to anti covid restriction rallys[5]. The wording of the injunction order in Nova Scotia is clearer than New Brunswick by creating a general prohibition to all gatherings and then listing exceptions to the general rule. The injunction bans all illegal public gatherings and then defines an “illegal public gathering” by linking back to the Public Health Order.

Further the definition of an illegal public gathering is as follows.[6]

The Canadian Civil Liberties Association urged the Nova Scotia government to lift the injunction as they viewed it as a demonstrably unjustifiable limit on constitutional rights.[7] On June 18, the Nova Scotia government asked the Court to withdraw the injunction, which the Court subsequently granted.[8]

Statutory Interpretation

A function of statutory interpretation is that the law speaks for itself. Words are given specific legal meaning. As a result, adding specific definitions to what is a gathering restricts the general plan meaning.

A prior example of this occurrence is when Cabinet promptly corrected a drafting error in the original September 17, 2021 COVID-19 Preventative Measures Regulation under the Public Health Act.  The original regulation contained the following description of certain businesses which require proof of vaccination or medical exemption as part of the government’s vaccination mandate.

3(2) (f) organized group recreational sports, classes and activities like pottery and art that are held or provided indoors;[9]

On September 21, the regulation was amended to delete the following:

3(2) (f) organized group recreational sports, classes and activities like pottery and art that are held or provided indoors;[10]

The reason why “like pottery and art” were deleted is because it narrowed the interpretive scope of what types of activities would be subject to a vaccination mandate. Under the narrowed scope, a group indoor activity such as cooking would not fall under the the vaccination mandate.

A historical example of a simplified ban was the October 1918 proclamation banning all public meetings during the Spanish flu outbreak in New Brunswick where “all public meetings are prohibited”:

If the Mandatory Order was drafted in a manner similar to the original 1918 Public Health order or the Nova Scotia injunction,  then it would confer the police a clear power to issue a ticket for an unlawful assembly.

Retroactive fix?

The issue through statutory interpretation is that the drafters limited the interpretative scope of the Mandatory Order. Accordingly, even if the Mandatory Order is updated to ban political gatherings, anyone presently ticketed for unlawful assembly has a strong argument to make that their tickets are invalid as they would be a breach of their s.11(g) charter right against retroactive offences. Effectively there was not a valid prohibition of political gatherings under the order, therefore there was no offence. If government decides to clarify the order, it cannot have a retroactive effect in relation to quasi criminal offences.

Public Health and Law Enforcement are misinterpreting the Order?

The alternative explanation is that there is a disconnect between the drafters in Public Safety and Public Health / Cabinet. The language of the Order suggest that government did not ban political gatherings. If this is the case, then the communication products by Public Health need to be updated or a clarification issued that political gatherings are allowed. Failure to clarify creates the impression that there is a violation of the law when in fact there is none. This also impacts the academic discussion of Charter rights if in fact the Order created an exception for political gatherings but that exception has not been communicated to the public.[11]

Further, if government is allowing political gatherings, what training is provided to peace officers on the rules created under the Mandatory Order? Individuals, regardless of their view of the government’s public health policies should not be ticketed for an unlawful assembly, if the assembly is in fact lawful.

General Points: What is the law and the rule of law?

Police officers should not be ticketing people with an offence of unlawful assembly under the Mandatory Order if the Mandatory Order itself does not prohibit political gatherings. In this manner, it is similar to the removal of tents on the lawn of the Legislative Assembly where the Speaker of the New Brunswick Legislative Assembly erroneously claimed a legal power to do so when none existed.[12]

States of Emergency represent an uncomfortable tension in the rule of law as society is no longer governed by the normal processes of passing bills or even regulations. Simply put, the Mandatory Order is a legal document and should not be written in an ambiguous manner or be in contradiction to press releases. People are tired. Confusion over what the law is rather than whether the law is appropriate creates the potential for misunderstanding.

I support the government’s efforts to mitigate the impact of Covid-19 on New Brunswickers. However it strongly needs to revise its drafting protocols for the Mandatory Order. These drafting errors create confusion over what the law is. Legal words have specific meaning which take priority over any government communication products. New Brunswick should return to using the Public Health Act as the primary mechanism to manage COVID-19. There are few measures in the Mandatory Order that cannot be enacted through the normal regulatory processes. If government needs additional tools, then it simply can ask the Legislative Assembly for them. The main thing is that this creates a series of extra checks and oversight on government decision making which is good.

If I as a constitutional lawyer cannot tell you whether the government intended to ban political gatherings but did not due to a drafting error, it is a sign that greater clarity and precision by the Public Safety drafters are needed.

[1]An example of a drafting error occurred after a draft order would have accidentally given police the power to remove people from their houses for repeated violations of the Mandatory Order as Public Safety did not include an exception for a “dwelling house” https://www.cbc.ca/news/canada/new-brunswick/covid-19-new-brunswick-mandatory-order-thanksgiving-circuit-breaker-vaccination-1.6204578


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