Lawyer calls on chief justice to dismiss Manitoba churches' challenge of top doctor's powers
WINNIPEG -- Manitoba's lawyer argues the constitutional challenge by several churches of the pandemic powers given to the province's top doctor is unnecessarily complicating a complex case. The lawyer is now asking the court to make the churches pay cost consequences because of it.
Seven Manitoba churches and some church officials continued their bid for a constitutional challenge of Manitoba's Public Health Act in the Court of Queen's Bench on Wednesday.
The churches, who are represented in court by the Justice Centre for Constitutional Freedoms, have argued the Chief Provincial Public Health Officer has too much power with not enough oversight – and they are calling on the province's chief justice to strike down the legislation.
In Court on Wednesday, Michael Conner, who is representing the province in the case, said there are many reasons why the province may delegate broad powers – the need for expertise, the ability to make decisions promptly and efficiently, and the need for flexibility.
"Broad delegation is made to make those decisions flexibly as the situation arises. All of those rationales come into play in a public health emergency like a pandemic," Conner said.
Justice Centre lawyer Jay Cameron told the court the churches are not against the fact that Manitoba's Chief Public Health Officer Dr. Brent Roussin is given the powers to pass health orders in an emergency – but rather that he is not required to give any evidence backing-up the decisions.
Cameron told the court on Wednesday the churches want the top doctor to be required to submit a report after he passes an order to substantiate scientifically why he is doing what he is doing.
He said they want the health minister to have an obligation to give that report to the Legislature within a certain time so it can be scrutinized and debated.
He said there are other factors other than public health that are affected by the orders which have to be scrutinized.
"You have a doctor, combatting an illness and he wants to lock everybody inside their house so that there is no transmission, but there are other considerations that govern society – the functioning of society," Cameron told the court.
The province's lawyer argued the practice of delegating powers in a public health emergency is used in every province in Canada.
"Dr. Roussin is presumed to be acting in good faith. He is not off on some frolic and we can't assume that his decisions aren't made based on science," Conner said, adding the health minister is required in the Public Health Act to sign off on the orders.
"We are being governed democratically, the applicants simply don't like what their elected representatives have enacted here."
Conner called on the court to dismiss the application and issue cost consequences in the case, saying it has "unnecessarily complicated an already very complex case."
Cameron denied this in court – saying it was a matter of public interest to file the constitutional challenge.
"This has never happened before – whether or not government can delegate this kind of authority, for this long a time, without checks and balances," he said.
Chief Justice Glenn Joyal reserved his decision on Wednesday.
The hearing is part of a two-part challenge filed by the churches. The second part of the hearing is scheduled to take place in April and will focus on the justification of Manitoba's lockdown measures.