In December 2020, five months after B.C. introduced financial penalties to anyone who violated its COVID-19 gathering restrictions, Nadine Podmoroff organized a protest against public health orders in Castlegar.
She set up two more in the following months, both in Nelson, and was issued tickets totalling $6,900. Prior to being ticketed, the threat of the fines weighed on her, but not enough to stop.
“I could not let that prevent me from doing what was right,” she said in an email. “I was a health care provider, and I was witnessing severe suffering of people, especially of our most vulnerable due to government mandates, and I couldn’t stay silent about it.”
It turned out she didn’t have to worry.
Podmoroff never paid a cent. The three tickets were each stayed by Crown Counsel for not meeting the charge assessment standard, a two-part test that weighs how likely a conviction is and if so, if public interest requires prosecution.
Podmoroff’s tickets were among the 2,335 totalling $1.58 million handed out in B.C. between Aug. 21, 2020, when the fines came into place, and Oct. 29, 2021, the most recent data currently available.
The statistics, obtained by Black Press Media from the B.C. Attorney General’s office, present unclear answers to the effectiveness of public health enforcement tickets as well as how defensible they were when tested by the courts.
Marty Moore, a lawyer with Calgary-based Justice Centre for Constitutional Freedoms who represented Podmoroff, said he believed the tickets were a clear violation of the Canadian Charter of Rights and Freedoms.
“Any time the government is going to trample on a fundamental freedom, they have to justify that. But the right to protest outdoors was categorically prohibited under orders, I think, in kind of a casual manner.”
Of the tickets handed out, 1,733 were given to individuals who refused to comply with provincial orders. Those $230 tickets totalled $398,590.
The next tier of fines included $575 tickets issued to 107 people who promoted or attended non-compliant events equalling $61,525, and eight tickets for failing to comply with travel restrictions for $4,600.
The most expensive violations were $2,300. Of those, 435 were given to owners or organizers who contravened the gatherings and events orders, which totalled just over $1 million. Fifty-one were also doled out for contraventions of the rules for restaurants and bars, totalling $117,300.
B.C. police also issued 223 tickets, for a total of $586,529, to people who were in contravention of the Federal Quarantine Act.
Whereas Podmoroff’s tickets were stayed, other British Columbians had less luck in court.
A total of 689 were disputed, but the Attorney General’s office could not provided outcomes for tickets valued at less than $2,300. Meanwhile, 342 of the 486 most expensive tickets were challenged.
As of Feb. 17, 120 of those disputed tickets were still under Crown or court consideration. Fifty-five had been upheld as guilty, 48 were deemed not to be disputed (this usually happens when a defendant doesn’t appear for a scheduled hearing), and one was paid prior to the defendant’s appearance.
“This is serious, this is not a lark, this is not something we do lightly,” Premier John Horgan said in December 2020 after the province increased enforcement of the health orders. “Those of us who do not want to obey the rules that the rest of us are following will have to pay the consequences.”
But not everyone did. Ninety-eight tickets were stayed by the Crown, two were dismissed by judges, eight were dismissed due to a non-appearance in court by the prosecutor, three were found not guilty, one was cancelled by ICBC (which collects fines on behalf of the provincial and federal governments in B.C.) and six were withdrawn.
A precedent was set on March 19, 2021, when Chief Justice Christopher Hinkson ruled in the Supreme Court of B.C. that the public health orders infringed on Dawson Creek resident Alain Beaudoin’s right to protest.
Moore said that decision, specific to organized gatherings, led to Podmoroff’s tickets being dropped last December.
“It’s not a novel area of law really when it comes to restrictions on protests,” he said. “It’s obviously a Charter issue, and government restrictions on fundamental freedoms like the right to protest should never be imposed lightly or flippantly. Fear-based decisions that are not founded in fact can’t be justified as violations of people’s rights.”
While the Charter does lay out rights such as freedom of peaceful assembly or association, those rights can be legally overturned. Section One of the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Margot Young, a professor at the University of British Columbia’s Allard School of Law, says most Canadians don’t understand that Section One can allow governments to infringe on rights if it is in what a court decides as the public good.
“The government does things all the time that contravene our Charter rights, but are easily justified,” says Young. “The whole system of criminal justice is based on that. We detain people, we deprive them of liberty. We treat people differently under our laws all the time.
“But the question is, is it a demonstrably justified breach of those things? And so in a public health emergency in a pandemic, with the healthcare system under crisis and threatening to fold on us, I just can’t imagine that a Section One defence will not be persuasive at an appeal court, which is where it matters.”
That may be, but Moore says Charter challenges will continue even as provinces ease or end COVID-19 restrictions.
One of those came March 17, when the Justice Centre announced it was suing the province of B.C. for requiring vaccination as a condition for employment among some healthcare workers.
Moore said he believes similar cases will eventually be heard in Canada’s top court.
“Those things, I think, they all beg for higher court intervention and be addressed in that fashion.”
– with files from Ashley Wadhwani, Black Press Media
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