Friday, September 30, 2022

Rule of law wins in pastor’s successful appeal against pandemic protest contempt charges

On Friday, July 22, the Alberta Court of Appeal overturned Calgary Pastor Artur Pawlowski’s conviction for contempt of court after he held church services in alleged violation of a court injunction prohibiting public gatherings that contravene Alberta Health Services’ public health orders. I mentioned Pawlowski earlier this year in an article about protests and the rule of law in the context of pandemic restrictions: Restrictions, rights, and the rule of law.

I have not seen widespread news coverage of this development, but some right-leaning news sites have picked it up and are trumpeting a victory over pandemic restrictions. For example, Rebel News, which is running a fundraiser for Pawlowski’s legal costs and is therefore unlikely to be an objective source on the topic, ran a headline proclaiming “vindication” for Pawlowski and calling the ruling a “massive” victory.[1] But is this really the Court of Appeal’s rebuke of pandemic restrictions that it is being made out to be? I think not. Pawlowski escaped charges (although he has charges pending for other incidents), but only because the court injunction he allegedly violated was poorly drafted.

The wording of the injunction was not clear and unequivocal

Pawlowski raised several issues on his appeal, the first being that he should not have been convicted because it was not clear and unequivocal that the injunction applied to him. The Court of Appeal agreed with this, and so did not bother to deal with any of the other issues raised.

The key section of the injunction stated:

The named individual Respondents and any other person acting under their instructions or in concert with them or independently to like effect and with Notice of this Order, shall be restrained anywhere in Alberta from:

a. organizing an in-person gathering, including requesting, inciting or inviting others  to attend an “Illegal Public Gathering”;

b. promoting an Illegal Public Gathering via social media or otherwise;

c. attending an Illegal Public Gathering of any nature in a “public place” or a “private place”, which each have the same meaning as given to them in the Public Health Act.

Notably, the Court of Appeal appeared to have no problem with the prohibition of the conduct listed in the injunction, and emphasized the seriousness of violating court orders. The court said:

… [W]e feel it is important to emphasize the necessity of obeying court orders. As the British Columbia Court of Appeal noted in Larkin v Glase, 2009 BCCA 321 at para 7, “citizens cannot decide individually what laws to obey and what laws to disregard.” In finding the Pawlowskis in contempt, the chambers judge found that they openly flouted the efforts of [Alberta Health Services] to control the third wave of the pandemic and were intentional objectors to [the chief medical officer of health’s] orders put in place to protect public health. He concluded that, if the injunction applied to them, they were in breach of it. We see no error in these findings.

The question then was whether the injunction applied to Artur Pawlowski. And the reason this was in question is because the injunction did not identify Pawlowski by name. The Court of Appeal noted that courts have the authority to issue injunctions directed at people who are not parties to the action, and those people can be found in contempt for violating the injunction. But first they need to have proper notice of the injunction, and the injunction needs to clearly identify to whom it applies and precisely what obligations must be complied with. This is because breaching an injunction carries potentially severe consequences, including possible imprisonment.

The injunction was granted ex parte meaning that Alberta Health Services (AHS) was the only party represented in court when the judge granted it. The injunction specifically named Christopher Scott, Whistle Stop (2012) Ltd. (Scott’s business that he kept operating during pandemic restrictions), Glenn Carritt, and “John Doe(s) and Jane Doe(s).” The court stated that “where there is ambiguity in a phrase that purports to identify a group of individuals to whom an ex parte injunction applies, the injunction may not be sufficiently clear to found contempt proceedings against such individuals” for violating it.

Since Pawlowski was not named in the injunction, the critical question in this case was whether the phrase “… any other person acting … independently or to like effect …” clearly captured Pawlowski. The chambers judge at the contempt hearing found that the naming of “John Doe(s) and Jane Doe(s)” in the order should lead to an interpretation of this phrase to mean that the injunction should apply to anyone with notice of the order. However, the court said, this failed to give any meaning to the words “independently or to like effect.” As with the interpretation of statutes, when interpreting a court order, it is presumed that the words used are not superfluous, but have been included for a reason.

The chambers judge further suggested that “independently or to like effect” should be interpreted to mean anyone engaging in the prohibited conduct. But the Court of Appeal noted that this was circular: unnamed individuals would be prohibited from engaging in the prohibited conduct because they were engaging in the prohibited conduct. Ultimately, the court found this provision ambiguous and potentially confusing, when “the language identifying who is subject to the order refers to the prohibited conduct without clearly stating that all persons are subject to the injunction.”

Ultimately, the Court of Appeal held that this less-than-stellar drafting created such sufficient ambiguity that it could not be established beyond a reasonable doubt that the order applied to Pawlowski and that he was therefore in contempt of court. The court set aside the contempt conviction.

The Court of Appeal’s decision seems solid in the sense that the court applied important principles tied to the presumption of innocence and the necessity of clear language in any order that has potential consequences for its breach that are similar to criminal penalties. But at the same time, the court emphasized the rule of law and the need for court orders to be obeyed. With a little more care in drafting the injunction, Pawlowski’s conviction would probably have been upheld.

An encouraging comment on free speech

Since the Court of Appeal found that the injunction did not clearly and unambiguously apply to Pawlowski, they did not deal with his appeal of the sanctions imposed by Justice A.W. Germain at his contempt hearing. The sanctions imposed included the following incredible order:[2]

The final term of his probation order will be that when he is exercising his right of free speech and speaking against AHS Health Orders and AHS health recommendations, in a public gathering or public forum (including electronic social media); he must indicate in his communications the following:

“I am also aware that the views I am expressing to you on this occasion may not be views held by the majority of medical experts in Alberta. While I may disagree with them, I am obliged to inform you that the majority of medical experts favour social distancing, mask wearing, and avoiding large crowds to reduce the spread of COVID-19. Most medical experts also support participation in a vaccination program unless for a valid religious or medical reason you cannot be vaccinated. Vaccinations have been shown statistically to save lives and to reduce the severity of COVID-19 symptoms.”

It is hard to fathom how any judge in Canada could reason that compelled speech such as this could be reconcilable with exercising one’s right of free speech.

Christopher Scott, who was actually named in the injunction and also convicted of contempt for breaching it (but who did not appeal the conviction), had this sanction applied to him as well. He appealed against the sanctions imposed on him and raised this issue, which was heard together with Pawlowski’s appeal. Prior to the appeal, AHS agreed to a consent order removing that part of the sanctions, and acknowledged at the appeal that such an order violated the Charter.

Unfortunately, because of the agreement that the speech sanction was improper, the court did not do an in-depth Charter analysis of the sanction. However, the court did at least indicate that it found two significant problems with this sanction. First, AHS did not ask for it, and the judge imposed it without giving the parties a chance to make any arguments about it. Second, the Court of Appeal expressed concern that the sanction was unconstitutional in that it compelled the expression of a particular message, which is inconsistent with the Charter guarantee of free speech.

The rule of law prevails

In the end, Pawlowski succeeded in this case. The decision is significant, but not because it “vindicates” Pawlowski’s disregard for public health orders or the injunction itself. It does not. The Court of Appeal’s decision affirms the necessity and applicability of the rule of law, not only for those who would disobey the law, but for those who would enforce it. And that is important.

[1] Vindication: Pastor Artur Pawlowski on His Massive Court of Appeal Victory

[2] Alberta Health Services v. Pawlowski, 2021 ABQB 813

Kevin Burron
After a stint as a structural engineer, Kevin built a bridge to a successful career in law. He was recruited to be partner at the largest law firm in the world (Dentons), then stepped away to sail under his own flag (Burron Law) and work with BIG Media. His practice covers a range of issues related to commercial litigation, including contract disputes, insurance coverage disputes, corporate governance and oppression actions, factoring of accounts receivable, oil well drilling disputes, contracts executed under duress, fraud and breach of trust claims, injunctions and attachment orders, contested insolvency issues, judicial review of administrative tribunal decisions, proceedings under the Arbitration Act, construction litigation and dispute resolution relating to builders' liens, construction deficiency claims, construction contract interpretation, construction delay claims, and construction safety code violation prosecutions. His deep knowledge of the legal system and writing prowess are great benefits to his clients, as well as to BIG Media readers.

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