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COVID and the Constitution

Law Professor Karen Busby explains the role of the courts in relation to government public health orders

January 15, 2021 — 

In early December, several legal dramas unfolded in provincial courtrooms across Canada, generating public debate regarding citizens’ constitutional rights and public health policies intended to help curb the pandemic. Thanks to the initiative of Acting Dean David Asper, Q.C., University of Manitoba Constitutional Law professor Karen Busby and about 15 law students were allowed to sit in on a virtual court hearing before Queen’s Bench Chief Justice Glenn Joyal on Saturday, Dec 5th, 2020. At that hearing, Springs Church challenged the province’s public health restrictions, claiming it should be exempt from the order that – at the time – forbid gatherings, including drive-ins.

Professor Busby met with law students in a separate call right before the hearing to answer any questions and help clarify what legal issues the hearing would address. As third-year students, most had already attended various court hearings before, but never something like this. Robson Hall Communications spoke with Professor Busby about the importance of this hearing both as a learning experience for law students, and as a way for the public to understand the role of the courts in enforcing pandemic restrictions. This interview was edited for clarity.


Q: What issues most stood out for our students in your pre-hearing discussion?

Karen Busby: They wanted to know what the likely issues were, what was the test for an injunction or an order that the rule against meetings did not apply to [Springs Church] in the circumstances under which they were meeting. [The church] wanted an interpretation of the order and what was meant by the word ‘meeting.’

We talked mostly about what were the steps to get an injunction. It was my view that the hard thing for [the church] to overcome was the third step, which is the balance of convenience: “Is it better in the end to grant the injunction or not grant the injunction?” I wanted them to better understand the advocacy that would be going on.


Q: Was this new material for the students, or does this typically get covered in law school?

KB: It doesn’t necessarily get covered. It might be covered in civil procedure, and in remedies. [Otherwise] a law student might not encounter such a matter in school.

The level of advocacy was really terrific. That was great, especially because they were working under tremendous pressure. The hearing was on a Saturday. It got moved ahead really quickly, and involved a lot of complicated questions.

There had been pre-hearing conferences between the lawyers and the judge prior to this Saturday call. They had agreed on what were the exact issues that needed to be determined at this time. So each lawyer had an hour to present their case on the two issues that were the particular focus of this hearing.

The bigger case involved a charter challenge, but this hearing was simply an injunction – that is, a remedy sought in the context of a larger claim. You have to file a statement of claim alleging various wrongdoings, and then you’re asking for an immediate remedy to stop the wrongdoing. So you don’t decide all the issues in the statement of claim, but you decide whether or not on balance, it’s a good idea to issue an injunction to stop the behavior now. And it’s hard to get an injunction.


Q: What key lessons did you hope students would take away from this experience?

KB: Of the legal points, what is the test for an injunction, and then also the way the issues really crystallized into two or three very discrete specific issues that needed to be resolved. It was a classic case of – there’s a million issues, and these were the two key things. And that took a lot of cooperation on the part of the lawyers not to take a “throw in the kitchen sink and see what happens” kind of approach, but actually sit down and really seriously think through what needs to be decided now. And the advocacy was excellent. The cooperation between counsel was excellent. The supervisory role played by the judge was excellent. It was just a fantastic example of good advocacy all around.

Right now, our students are craving that practical experience, something that’s missing this year. And we felt like we were in the courtroom – it was a very real experience.


Q: What should every lawyer representing either party keep foremost in mind, either defending or bringing this challenge? One day, our students may find themselves on each side of the courtroom in those lawyers’ shoes.

KB: When you’re doing litigation, it’s a fine balance between Blue-skying, what possible arguments you can make – so you come up with a huge range of ideas about what you can possibly argue, and then you have to start winnowing, figuring out, what are the real issues here. And that’s the hard job. You want to be creative in big thinking. And then you want to be practical, and dive deep into the issues that you need to get in. That’s why we see cases are very different at trial than they are, say, before the Supreme Court of Canada, because issues become so much more crystallized. It was just really fantastic to see the issues crystallize, in this case at an early stage.


Q: Chief Justice Joyal ultimately ruled against the application of Springs Church to be able to gather, but then the province allowed drive-in church gatherings. How are the courts to work with such constantly changing rules as in this example when the province had a change of heart and said, “Well, maybe that wasn’t such dangerous behavior after all, and maybe it’s okay for people to do this”?

KB:  Part of that is “what are the proper institutional roles for governments and for courts?” Joyal’s point in a nutshell in his decision is that in an emergency situation, it should be governments that make the decision about what should be in public health orders, not courts. So, if government had issued a public health authority, that says no public gatherings and the way they define public gatherings included in particular, configuration of church and our cars, then courts should not second guess that, and that’s a totally defensible position. But in some ways, you could take it as an invitation: don’t ask the court to interpret and change this rule. Ask the government to interpret and change this rule. It’s not surprising that the church went back to the government and said, “Look, reconsider this rule, because it doesn’t make sense.” And the government said, “Okay, yes, we reconsider it. You can have church in your cars.”

So, it wasn’t a lost effort – it was all necessary to get to this point.

The difficulty about working with courts is, it’s non-specialist judges working in isolation on issues they might not know a lot about, like public health and pandemic control. And, although in this case where the lawyers did an amazing job, it’s a constantly changing evidentiary situation. The Rules of Civil Procedure are not well suited to managing information and managing change and managing uncertainty. That’s better done around a corporate table, than across a courtroom.


Q: What are the main takeaways for students learning about Charter rights? And members of the public who are reading the newspaper and trying to understand what are their rights?

KB: There was an injunction sought in Alberta yesterday, but it was for a million different things. It just seemed to me that that application was lunacy compared to this one, because they were seeking to have so many rules interpreted by the court. And if the court was reluctant to reinterpret one rule in Manitoba, I don’t see how any court would reinterpret 10 or 20 different rules, as was requested in Alberta. So, the key takeaway for me from this was preparation in litigation. Creative thinking is important in litigation. Willingness to crystallize issues is really important to litigation. Although we often think of courts as being activist in Canada, courts actually are quite conservative, and they don’t step in unless there’s very good reason to step in.


Q: Last thoughts?

KB: One of the things that’s really interesting for me is that the process worked really well, being on conference call. I think going forward, we’re going to see way more hearings conducted by conference call. If you can do it from your home, or you can do it from your office, why would you go to the courthouse?

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