Lawsuit challenges powers of Manitoba's top doctor, says health orders 'unconstitutional'

As Manitoba's chief public health officer was announcing the relaxation of some public health restrictions Tuesday, his powers were being challenged in a court proceeding questioning the constitutionality of the months-long partial lockdown and ban on in-person gatherings.

The two-day hearing is part of a constitutional challenge being led by The Justice Centre for Constitutional Freedoms, which is representing seven rural Manitoba churches, a minister, a deacon and a man who was fined for attending an anti-lockdown rally in Steinbach in November.

The hearing began on the same day Dr. Brent Roussin, Manitoba's chief public health officer, and Premier Brian Pallister announced the loosening of public health orders. Museums, indoor rinks, restaurants, gyms and places of worship will be able to reopen with limited capacity on Friday.

The lawsuit, filed in December, is challenging Manitoba's lockdown measures, calling them unjustified violations of the charter freedoms, which protect an individual's freedoms of conscience, religion, expression and peaceful assembly. 

The action also contends that the province, Roussin and Dr. Jazz Atwal as the acting deputy chief public health officer, failed to consider the collateral social and health costs of locking down society.

Manitoba has been in a state of emergency since March, with limits on gatherings throughout the course of the pandemic.

Churches were ordered to close Nov. 12 when Manitoba's COVID-19 restrictions were tightened and indoor gatherings of any size were no longer permitted.

Legislation not clear, lacks limits: lawyers

Chief Justice Glenn Joyal of the Court of Queen's Bench heard from Justice Centre lawyers who argued that Roussin's powers under the Public Health Act of Manitoba are not specific enough and lack clear limits.

"The bestowal of broad and unlimited authority, and the failure to impose meaningful safeguards is what we complain of," said Justice Centre lawyer Jay Cameron.

Lawyers for the group also argued that there is no requirement in the public health act for Roussin to make his decisions based on the latest scientific data, nor to communicate the science he uses to the public. 

"All he has to say is that he reasonably believes that this is necessary and there's no requirement to provide the science," said Justice Centre lawyer Allison Pejovic.

"How far is this going to go?"

Pejovic argued that by giving Dr. Roussin broad ranging powers, the legislature has "put all of its eggs in this chief public health officer's basket.

"What he is doing is upending society, my Lord, and there has to be some sort of assurances given to the public," Pejovic said.

Pejovic acknowledged that there will always be dissenting opinions on science, but argued that the public has a right to know which science Roussin is basing his decisions on.

"Keeping the public informed so they can have proper discussion and have consent and understand why these laws are being made," she said.

"There's been no presentation of any science, so the public is left in the dark."

Pejovic referred to the decision to restrict people from buying toys over Christmas, when the province banned the sale on non-essential items in November, stretching through to January.

"Were these orders necessary to prevent the spread of communicable disease? Where's the science?" asked Pejovic.

"There needs to be some sort of check on this power," she said.

Not 'unbridled power', province's lawyer says

A lawyer for the province said safeguards to prevent abuse of power are already in place and that it's not uncommon to delegate certain powers within government.

"There are several layers of accountability and checks," said Michael Conner.

Conner pointed to the fact that orders must be approved by the health minister and meet the threshold that there is a serious and immediate threat to public health, and that the threat cannot be prevented or stopped without the special measures.

The law also says the response can be "no greater than is reasonably necessary.

"It's not an unbridled wide-open power as my friend suggests," Connor said.

He said legislators can always intervene to amend powers or override any order that isn't justified.

"If at any point in time there's some question about how the chief public health officer is exercising their authority and they're not considering science, its open to the minister to replace the chief public health officer," he said.

In response to Roussin's scientific backing not being made available to the public, Conner said daily public briefings provide ample opportunities for questions to be raised and examined.

"It's hard to imagine any delegated authority in recent memory that has been under more intense public scrutiny than the public health orders issue," Conner said.

"The media, the opposition, the public is always there to hold the government to account in the house."

No evidence to close churches: lawyers

The Justice Centre lawyers also argued that there is no time limitation on how long specific orders can be in place for, and cited the closure of multiple businesses.

"Months on end? There's no limit here. And there's no requirement to provide evidence that churches, for example,  need to be closed when liquor stores can be open," Pejovic said.

Lawyers for the plaintiffs argued that more consultation, debate and education about the orders is needed.

Joyal pushed back by providing examples where the government has sought public consultation through online surveys.

Justice Centre lawyers said asking people what they think of the orders in a survey is not the same as informing them of the consequences of the health orders, or the science they were based on.

The preliminary proceedings will continue Wednesday, with the full hearing scheduled for eight days beginning April 19.

A similar challenge of public health restrictions will also take place in B.C. in March.