Manitoba government justified in limiting Charter rights to prevent serious COVID-19 outcomes, judge told

WINNIPEG — Lawyers for the Manitoba government have conceded the province’s public health orders limited people’s Charter-protected freedoms but they told a judge the measures were justified to prevent additional deaths, ICU admissions and hospitalizations amid a rapidly evolving global pandemic.

“During the worst part of the second wave, for a period of 13 weeks, Manitoba implemented a temporary circuit breaker,” Michael Conner, a lawyer for the province told Court of Queen’s Bench Chief Justice Glenn Joyal. “And there is no dispute in this case those measures limit Charter rights.”

“But in our submission, there’s ample evidence to justify the temporary circuit break under Section 1 (of the Charter). It was a proportionate and reasonable response to a public health emergency that was threatening to run out of control and overwhelm our hospital capacity in Manitoba.”

A group of seven churches and three individuals is challenging the province’s pandemic restrictions, arguing they violate Charter rights to hold religious and public gatherings.

Conner argued the province progressively lowered capacity limits in places of worship based on pandemic indicators such as case counts and hospital and ICU admissions.

“It is serious to close a place of worship and had government done that from day one we would’ve had a tough time in trying to justify that,” Conner told Joyal. “Throughout the pandemic (Dr. Roussin) was imploring the minimum restrictions necessary that were tailored to the epidemiological circumstances of the pandemic at the time.”

“They have ebbed and flowed since day one of the pandemic.”

He argued places of worship have been treated no differently than secular settings such as concert venues, movie theatres and sporting facilities.

“There is certainly no distinction that is based on religious beliefs or religious activities,” Conner argued.

He pointed to a ban on drive-in events, as an example.

“It wasn’t limited to religious services. The public health order limited gatherings in cars as well. You couldn’t attend drive-in movie theatres, or drive-in concerts or drive-in sports,” Conner told the court. “They were allowed in the summer for a brief period. They were not allowed as of Oct. 19 and then they resumed again Dec. 11.”

“The government actually treated religious services more favourably than some of these other venues that were entirely closed. When the circuit break ended in January and things started to reopen places of worship were open first. Whereas movie theatres, concert halls, MTC all remained closed.”

The applicants have argued the orders lack a link with their intended purpose but Conner told the court there’s a clear connection between restricting gatherings and reducing the spread of COVID-19.

He countered submissions made by the applicants that the court heard no evidence on the risk of outdoor transmission, arguing while there’s a greater risk of indoor transmission the evidence doesn’t rule out outdoor transmission.

“With the ICU and hospitals teetering on the brink, Manitoba chose to take a cautious approach,” Conner argued. He said the province concedes outdoor gathering restrictions have limited people’s ability to hold rallies but pointed to other means of protest such as letter writing and emails.

He told the judge, Manitoba has constantly weighed and taken into account the adverse effects of the orders in response to the applicant’s concerns the province didn’t do a good enough job analyzing the harms of its measures.

“We don’t dispute the public health orders have created some hardships for the applicants,” Conner told the court. “You cannot say that temporarily closing places of worship and limiting gatherings had a grossly disproportionate impact on the applicants when compared to the objective of the public health measures to reduce deaths, serious illness and avert a crisis in our health care system.”

The applicants have argued for a focused protection approach to the pandemic in which most people would go on living normal lives with measures to protect people at higher risk of serious outcomes.

Conner told the court, protecting the vulnerable is part of the government’s response but it has to be coupled with preventing widespread transmission of the virus.

“The fundamental problem of letting the virus spread freely is that it risks many more deaths, hospitalizations and ICU admissions and overrunning our health care system,” he argued.

During the height of the second wave in the fall, he told the court Manitoba imposed tougher restrictions.

“Our hospital and ICU capacity was under tremendous strain at this time. We were reaching a crisis level,” Conner told Joyal. “The system didn’t collapse but it already couldn’t provide non-COVID care.”

Court has heard ICU capacity in the province peaked at 129 patients during the second wave compared to its regular pre-COVID capacity of 72 beds. Capacity had never exceeded 80 patients between Apr. 2016 and Nov. 2020, Conner argued. He acknowledged planning had been done to free up additional space but he told court staff was stretched thin because health care workers had already been reassigned to accommodate COVID care.

“Our doctors and nurses were exhausted and stressed and they don’t grow on trees,” Conner told the court.

The applicants have argued PCR tests are unreliable because the province isn’t sharing how infectious each person is who tests positive.

Conner told the court the same tests are used around the world to detect for the presence of the SARS-CoV-2 virus, tests he argued have given public health officials accurate and valuable data about looming and hospitalizations and ICU admissions.

“There’s a fundamental distinction between how we use these PCR tests on an individual level and a population level for surveillance,” Conner told the court. “Cases don’t double through non-infectious people. They only double because there’s an infection that’s being transmitted.”

Arguments in the case are expected to wrap up Thursday afternoon. 

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