Benjamin Perryman | Faculty News | Spring & Summer 2021 | NEXUS Magazine | The Faculty of Law | UNB

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Ben Perryman represents CCLA at Nova Scotia Supreme Court

On June 30, Prof. Benjamin Perryman served as pro bono counsel representing the Canadian Civil Liberties Association (CCLA) in their challenge of an injunction order obtained by the province of Nova Scotia in the context of COVID-19. The injunction order banned all political protests and peaceful assembly that violated gathering limits—including outdoor socially distanced and masked gatherings—as well as the sharing of information about such protests online. The injunction order was granted on May 14, during the height of the third wave of COVID-19, and applied to all Nova Scotians.

The CCLA argued that the injunction order was overly broad, lacked legal authority, was not evidence-based, and infringed the Charter, including the rights to freedom of expression, freedom of peaceful assembly, and liberty. The association has been litigating COVID-related restrictions across the country since the beginning of the pandemic. These challenges have included the Newfoundland travel ban, which is now before the Newfoundland Court of Appeal, and cases in Ontario concerning detention conditions in jails during the pandemic. They have also taken on letter writing and advocacy campaigns that have stopped short of litigation, looking to try to help governments strike the right balance between public safety and civil liberties in the middle of this public health emergency.

According to Perryman, the experience across Canada has been similar; most provinces—along with the federal government—have emergency legislation, in some cases public health-related and, in others, a separate emergency statute. Most provinces give their chief medical officer the authority to pass public health orders in the middle of a pandemic; this has been the case in New Brunswick and Nova Scotia.

“It's these public health orders that have allowed provincial governments to impose limitations,” said Perryman. “These limitations concern things like gathering size, permissible and prohibited activities, what stores can be open—all of the things we've become quite accustomed to being part of our daily lives. The fact that the university had to close, that we had to switch to online learning, this all extends out of these public health orders.”

Many of these public health orders include a fine or ticketing regime. Some jurisdictions have gone further, asking the courts to issue injunctions in response to particular activities, for example, a church that continues to operate indoors in violation of gathering limits. In this case, the injunction was sought following several outdoor protests against the public health orders and restrictions. 

“This injunction, known as a quia timet injunction, was brought forward in advance of perceived harm occurring. Normally these injunctions will be issued in an intellectual property case where one party believes that the other party is going to steal their IP rights. If they wait until after that happens, it will be too late. In this case, the perceived harm was the spread of COVID-19.” 

The injunction order was also sought on an ex parte basis; notice of the court proceeding was not made public. The only people present at the hearing were the judge and the government lawyer. No one was allowed to test the government's evidence or to make arguments regarding how public health should be balanced against the constitution in the middle of a pandemic.

When the injunction order first became public, the CCLA engaged the province, asking if it would consider redrafting the order to make it less problematic in constitutional terms. The CCLA was granted public interest standing, and the hearing was set for June 30. One week before the hearing, the province asked the Court to discharge the injunction order on the grounds that it was no longer necessary. This request was granted. The province then asked that the June 30 hearing be vacated because the matter was now moot. Arguments about mootness were left for the June 30 hearing date.

The CCLA’s day in court

On June 30, Perryman, along with co-counsel Nasha Nijhawan from Nijhawan McMillan Petrunia LLP, appeared before the Nova Scotia Supreme Court. On behalf of the CCLA, the pair argued that the matter was not moot and that it raised issues of public importance that should get a proper hearing in open court.

Perryman and Nijhawan questioned when this type of closed-door approach is appropriate, and what types of remedies can be given when nobody's there to argue the other side. Their goal was to determine, in the context of a public health emergency or otherwise, what is the proper process for a government seeking a judicial order to enforce a statutory power. This framework, they argued, must be determined before an emergency happens, not after the fact, and should include consideration of Charter rights that are engaged.

The Court, however, found that the matter was moot and refused to exercise its discretion to rehear the case in open court. Justice James L. Chipman held: “The CCLA’s issues, while interesting and thought-provoking, do not necessitate a lengthy hearing (or rehearing) at this time.” The CCLA is now considering its options in light of the Court’s decision.

Reflecting on his involvement with the case, Perryman says “Even though the CCLA did not get the result it had hoped for, I am still happy to have provided pro bono counsel in this case. One of the roles of lawyers is to challenge government conduct that is arguably without legal authority. This promotes the rule of law, even where a Court upholds government conduct. Canada does not have extensive case law on emergencies, so this type of litigation helps to develop the parameters of how injunctions and the Charter apply in that context. While we all hope that the worst of the COVID-19 pandemic is over, there are fourth waves emerging elsewhere in the world, so there is a real possibility that these types of issues may arise again.”

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