CURFEW CHALLENGE IN QUEBEC - DPCP Vs Stéphanie Pépin

COMPREHENSIVE SUMMARY OF CONSTITUTIONAL CHALLENGE TO THE CURFEW ORDER, AMOS, QUEBEC

By: Richard G

La version française peut être accédée ici.

CONTEXT:

On January 9, 2021, in Amos, Québec, Stéphanie Pépin and a group of protesters arranged a small protest convoy to express their disagreement with the CAQ government's decision to impose a curfew across the province in an effort to control the spread of COVID-19. Just after 8 pm, Sûreté du Québec officers intercepted the protesters and issued fines for breaking the public health regulations. Each person in the group received a $1,550 fine for not complying with the curfew order as outlined in the Public Health Act (hereafter referred to as LSP – Loi sur la santé publique)

In the subsequent weeks, the group of protesters notified the Court of Quebec about their intention to challenge the measure on constitutional grounds. They submitted a Notice of Constitutional Question (Avis 76, C.P.C.) and awaited a trial date. Without delving into greater detail, government prosecutors then filed a motion to dismiss the Notice of Constitutional Question and urged the trial to proceed based on the factual merits of the alleged violation. Consequently, Pépin (via this author) sought the assistance of the Justice Center for Constitutional Freedoms and lawyer Samuel Bachand to represent her and, informally, the other accused defendants. Bachand successfully contested the prosecution's motion to dismiss the Notice of Constitutional Question by submitting a revised version with the necessary clarifications.

With the Court's rejection of the motion to dismiss the Notice of Constitutional Question, all parties and the Court agreed on a schedule for proceedings, leading to a four-day series trial set to take place in Amos. This trial commenced on Monday, September 18, 2023. In the weeks leading up to the anticipated trial, the attorney representing the accused, Samuel Bachand, passed the case to his colleague, Olivier Séguin. Both lawyers would ultimately represent Pépin throughout the proceedings.

TRIAL

The four-day trial commenced on Monday, September 18, and concluded on Thursday, September 21, 2023, before the Honorable Judge Marie-France Beaulieu. The first two days were dedicated to expert and participatory witness testimony. The third day was used by both parties to prepare and exchange modifications to their argumentation plan and to their motion in light of facts and evidence revealed during the witness testimony. The last day was devoted to both parties’ pleadings.

The following provides a chronological summary of the proceedings as witnessed in person by Richard G at the Palais de justice d’Amos before the Honorable Judge Marie-France Beaulieu. In the interest of full transparency, it should be noted that this author is and remains the defendant, Stéphanie Pépin’s, partner and played a pivotal role in securing the pro bono services of the JCCF to challenge the imposition of the curfew measure in Quebec. Certain personal comments have been added which are clearly identified and interspersed within the summary. These comments serve to provide context and insights that may or may not have been discussed during breaks in the proceedings but were noted nevertheless by this author as being relevant to the testimonials and subsequent debate.

This author implores all lawyers and the public to take note of the evidence revealed and arguments made throughout these proceedings as they will in all likelihood have an impact on future proceedings. It is this author’s opinion that several groundbreaking revelations were registered, as well as important admissions by key government witnesses.

RECAP OF PROCEEDINGS:

Day 1 – Monday, September 18, 2023

At the onset of day 1, the opening statements by the government prosecutors, Marie-France Lebel and François Lamalice, aim to reinvoke their arguments from their prior Motion to dismiss the Notice of Constitutional Question. Judge Beaulieu disregards this attempt to rehash a motion which was already dismissed and instructs the parties to proceed.

Judge Beaulieu sets certain rules for the proceedings, including the obligation of the parties to debate the facts and circumstances of the case only as they were known at the time the defendant was accused of violating the public health ordinance. The benefit of hindsight would not be admissible, and the Court would have to rule based solely on the facts and knowledge relevant to the period in question.

The government prosecutors argue that the debate would have to respect the framework of the Notice of Constitutional Question and not surpass its scope. The judge disagrees with the prosecutors’ argument as the testimony of witnesses could potentially change certain arguments in the defense’s case.

With the preliminary proceedings out of the way, Judge Beaulieu orders the suspension of the penal/criminal accusations pending a final verdict in the Constitutional challenge.

FIRST WITNESS CALLED – DR. HORACIO ARRUDA, FORMER PUBLIC HEALTH DIRECTOR, QUEBEC

In the first part of his testimony, Dr. Horacio Arruda expresses that the primary purpose of invoking a province-wide curfew is to “send a clear message to the population.” He continues by suggesting that such punitive and coercive measures serve as an example for the population and to demonstrate the seriousness of the situation.

Dr. Arruda then references a French study published prior to the invocation of the measure that allegedly concludes through observation that a curfew is a measure rooted in social and behavioral science. It works by the “effect of resonance.”

Dr. Arruda then expresses that a curfew would have a substantive impact in reducing social contact and, by consequence, transmission of COVID-19.

Dr. Arruda explains that the message sent by the invocation of a curfew has indirect effects on the population, such as reinforcing the sentiment of urgency and pushing people to adhere to all other public health measures more seriously.

The government prosecutors introduce a passage from a March 16, 2020, press conference in which Dr. Arruda qualifies the curfew order as a war measure or a measure to control and maintain the social order. During the press conference, Dr. Arruda shares his doubts about the usefulness of the measure in the context of a public health emergency. He further states that public health officials do not typically talk about curfews as a viable measure to achieve their objectives.

The question of whether the curfew is a measure of social control is once more brought up, to which Dr. Arruda responds that it is a measure of last resort as a function of the severity of the threat to public health. He goes on to insist that the province was in the grips of a deadly pandemic which could warrant any number of mitigation and suppression measures, but that the population was, at this point, experiencing pandemic “fatigue.” As populational adherence to public health measures was diminishing, the government needed to send a clear message.

Lawyers for the defense introduce their next piece of evidence: an email from December 30, 2021, obtained by FOIA, sent by Dr. Éric Litvak on behalf of Dr. Arruda to the Minister of Health titled, Argumentaire pour le couvre-feu. The submission of this piece of evidence is contested by the government prosecutors who question its relevance. Lawyers for the defendant respond that it was introduced in order to properly characterize the nature of the curfew measure and whether its justification hinges on hard science or social science.

Dr. Arruda then introduces a study upon which Quebec’s public health allegedly relied to justify the curfew. According to Dr. Arruda, the study published in Nature that ranks the efficacy of governmental COVID-19 measures concludes that the reduction of small gatherings has a significant impact on R0 (reduction of transmission) with a score of 83 in comparative efficacy.

(Author’s comment: in a prior admission, Horacio Arruda suggested that small gatherings would not be reduced by a curfew as more gatherings would instead take place in greater concentrations during the day. This admission appears to contradict the theory that a curfew would reduce contacts overall.)

Dr. Arruda proceeds to discuss the “Swiss Cheese Model” of Pandemic Responses.

Motioning with increasingly pronounced hand gestures, Dr. Arruda goes on to explain the importance of a layered approach to pandemic management.

END OF TESTIMONY

In light of the testimony provided by Dr. Horacio Arruda, lawyers for the defendant Stéphanie Pépin move to modify their arguments and drop certain witnesses and expert testimony from the proceedings. The expert report provided by Dr. Patrick Provost and filed by the defense is dropped from the case. The anticipated testimony of Dr. Éric Litvak is also dropped.

TESTIMONY OF POLICE OFFICERS – SÛRETÉ DU QUÉBEC

Agent Benjamin Proulx:

Agent Proulx is called to testify to the facts and circumstances of their interactions with the defendants on January 9, 2021. It is revealed that Agent Proulx was unaware of any exceptions to the curfew order as specified by the public health decree.

Agent Tommy Vigneault (Superior officer of Agent Proulx)

Under the orders of his superior officer, Captain François Côté, Agent Tommy Vigneault was instructed to intercept the peaceful protest on January 9, 2021, after their surveillance team discovered publicly shared posts on social media about it. It is then revealed that the officers did not consider Charter rights in the exercise of their actions that night.

TESTIMONY OF STÉPHANIE PÉPIN

Defendant Stéphanie Pépin is called to testify by her lawyer, Samuel Bachand. During her testimony, Stéphanie Pépin explains how the curfew negatively impacted on her freedom to travel and to associate. By limiting her ability to travel after 8pm, she could not easily manage her personal relationship as the distance between her and her partner made it difficult for them to see each other. The imposition of a curfew caused her to feel trapped like an animal in a cage and impacted her mental health and psychological well-being. She explains to the Court that she could no longer go outside with her two children after 8pm to walk or drive around, and that both of those activities typically helped them to better sleep at night. She states that the curfew order caused her undue stress and anxiety. Notwithstanding Article 1 of the Canadian Charter of Rights and Freedoms, it is established by the defense that the defendant’s Charter Rights were breached by the imposition of a curfew.

DAY 2 – Tuesday, March 19, 2023

TESTIMONY OF DR. RICHARD MASSÉ

(Author’s own note: Dr. Richard Massé is not sworn in prior to commencing testimony.)

Testimony begins with the government prosecutor’s examination of the witness, Dr. Richard Massé. He is introduced as a witness to the facts and a participating witness in the context of his work, not an expert witness, per se. The government prosecutors remind the witness that he must provide testimony based on the facts and knowledge he possessed at the time of the accusations. He must also limit his testimony and opinions within the context of his professional duties at that time.

Testimony begins with a summary review of Dr. Massé’s academic and professional curriculum vitae.

Dr. Massé graduated from medical school at the University of Sherbrooke in 1970. He studied and worked in internal medicine in Africa in the 1970s. He later became a specialist in public health and then obtained a Master’s degree in epidemiology with a focus on sexually transmitted diseases. He continued his academic studies in community medicine, with a focus on interventions in emergency situations. His academic career concluded with a strong focus on community medicine, public health, and epidemiology.

Dr. Massé’s professional experience in infectious diseases began in Africa in 1977. He then worked as a general practitioner at a CLSC in Lac Etchemin. Following this period, he worked in community healthcare in Montreal, was named Director of Community Healthcare and focused on infectious diseases in the context of public health.

In the period commencing in 1998, Dr. Massé occupied the same position that Dr. Horacio Arruda currently occupies as Deputy Minister of Public Health. His mandate at the time was to develop the modern framework of the Public Health Act in Quebec.

Among his responsibilities in developing this new public health framework, Dr. Massé coordinated, through committees, the collaboration of various institutions and corporations. He developed the framework for broader surveillance capabilities in matters of public health.

Dr. Massé declares that, prior to March 13, 2020, Article 123, paragraph 8, of the Public Health Act was never used by a sitting government. However, “they knew that it would be used.” Based on the study of emerging novel pathogens, his work focused on developing the tools and laws required to arm public health with the ability to intervene in an emergency.

President and Director of Quebec’s INSPQ – 2003

With the INSPQ’s launch in 1998, Dr. Massé’s role in 2003 was to develop its framework within the public health administration. The government prosecutors ask if the Minister of Health and Social Services (MSSS) is dependent on the INSPQ. Dr. Massé responds that the INSPQ obtains its orders directly from the MSSS, including its budget allocation, administrative council, and mandate.

The INSPQ is not an independent organization in terms of financial support. Dr. Massé declares that it is, however, independent in terms of its scientific research. As a public health institution, they are required to publish their findings after having informed the MSSS of such. Dr. Massé claims that there is no interference from government in the studies conducted at the INSPQ, the results of their findings, or their subsequent recommendations.

Dr. Massé continues his testimony by commenting on his involvement with a Council of Canadian Experts which issued a report in 2019 as part of an international summit on public health. In 2020, he adopts the role of strategic medical counselor replacing Dr. Arruda at the MSSS. As part of an executive committee, he elaborates strategies centered around civil security, holding regular meetings.

In December 2020, a national roundtable is convened. Among those sharing common roles are Dr. Massé, Dr. Litvak, and Dr. Raynault. Their role is in surveillance and epidemiological analysis. Dr. Litvak introduces a system of national alert levels. They rely on modeling provided by the INSPQ and the INESS to determine the levels of alert in any given region. A coordination committee is formed with 18 public health directors in the province and the INSPQ with a focus on COVID. They begin to meet daily. Discussions are held regarding public health measures. A constant liaison with the INSPQ is maintained wherein their role is centered around surveillance, laboratory studies and testing, coordination, and analysis.

Further discussions are held about the perceived “acceptability of the measures” among the greater public.

A constant liaison is also maintained with the INESS, a Quebec public health institution that specializes in public health and medical technology, as well as interventions. The INSPQ obtains opinions from the INESS. The INSPQ asks the INESS to provide a detailed analysis of COVID-19 related hospitalizations, comorbidities, and the capacity of the healthcare system in real time. They are aided by doctors at McGill University and l’Université de Laval. They provide modeling for the INSPQ.

(Author’s note: The entire examination of Dr. Massé at this point seems to serve the purpose of establishing his credibility as a participating expert, defining his role during the COVID-19 crisis at the time the curfew was invoked, and determining the scope of his involvement.)

The INESS employs Dr. Brisson and an independent team of scientists. The group analyzes the severity of public health measures.

SWISS CHEESE MODEL

Dr. Massé introduces the “swiss cheese model” of public health (layered approach). He testifies regarding methods of controlling transmission. The strategy involves adding measures in layers with the goal of mitigation and/or suppression of transmission.

Dr. Massé discusses the differences between collective and individual responsibilities. He suggests that a series of measures are first adopted prior to infringing on civil liberties with more intrusive measures like lockdowns.

The government prosecutors ask Dr. Massé what considerations are employed to justify the use of a curfew. Dr. Massé responds that considerations such as the epidemiological situation, the state of the healthcare system, and the general adherence to measures already in place are all analyzed. He explains that a curfew is one of the last and most intrusive public health measures available before complete lockdown.

The government prosecutors ask Dr. Massé what knowledge the INSPQ had about COVID-19 in December of 2020. Dr. Massé responds that the INSPQ knew that the virus was transmitted from person to person with greater frequency than influenza. He states that the R0 (transmissibility factor) for influenza is between 1.3 and 1.5 whereas with COVID-19 at this stage of the pandemic, R0 was between 2.3 to 2.5 (original Wuhan strain).

In late 2020 and early 2021, Dr. Massé expresses that a new COVID-19 variant, the Alpha variant, was emergent in the UK and was being monitored for transmission in Quebec. At this time, they knew, according to Dr. Massé, that pre-symptomatic transmission was possible up to two days before visible symptoms would appear. At this time, they knew the virus could transmit via medium-sized airborne droplets and by aerosol.

Dr. Massé then testifies regarding the effects of contagion on the population. He states that, for the general population that is not considered vulnerable, the typical symptoms of contagion are cough, fever, respiratory distress, and occasional impact to other organs. He adds that the risk of more serious complications for immunocompromised individuals is quite a bit greater.

Dr. Massé continues his testimony by discussing the death toll of COVID-19 in Quebec. He states that, by January of 2021, the province recorded 10,000 total deaths.

(Author’s note: Dr. Richard Massé is not asked to specify whether those deaths were a direct or indirect result of COVID-19 infection.)

Dr. Massé states that the emerging Alpha variant escapes immunity from prior infection and is more transmissible than the original Wuhan strain (as suggested by data from the UK). He goes on to elaborate on the chronology of pandemic events at the end of 2020 and into early 2021. He states that there were approximately 3000 daily cases at the end of December 2020, roughly 165 daily hospitalizations, and 153 daily deaths at the peak of the so-called “second wave.” January 6 would be the peak of new daily cases and hospitalizations.

On December 14, the first COVID-19 vaccination program begins in long-term care – CHSLD and RPA. The vaccination of the entire population is touted as an exit route for the pandemic.

The government prosecutors as Dr. Massé about the measures that were in place in the fall of 2020. Dr. Massé responds that mask mandates were in place, a regional alert system was implemented at this point, and recommendations to issue fines for violations of public health ordinances were also made to the government. Other measures were implemented to restrict gatherings according to alert levels. He describes this period as a “crescendo of measures” with several layers of cheese. He goes on to describe red zones in the province where police checkpoints are set up. There is a restriction placed on interregional travel. Public health asks the police to intervene in a targeted manner.

(Author’s note: While Dr. Massé testifies that the INSPQ and Quebec’s public health apparatus was responsible for recommending the totality of COVID-19 public health measures, his colleagues testified under oath in a separate trial of precisely the opposite – that no measures were recommended by public health and that the government itself was solely responsible.)

Dr. Massé continues by testifying regarding the proportion of COVID-19 hospitalized patients who suffered from comorbidities. He states that 20% of cases had comorbidities. At this point in the pandemic, the 18-69 age group was more overrepresented in new cases compared to average, especially in the Greater Montreal Area. He notes a tendency, using mathematical modeling, toward a sharp uptick in cases with the potential to overwhelm the healthcare system.

Dr. Massé states that, at this point in time, hospital admissions were determined by the number of designated available beds. He further states that certain admissions were refused according to their level of urgency.

The government prosecutors continue their examination of Dr. Massé by directing their questions toward the epidemiological situation in the Abitibi-Témiscamingue region. Dr. Massé testifies that the situation in the first week of January 2021 was stable. There was an average of 45 new cases per day in late December 2020, but that number rose to a peak of 160+ cases per day in the first week of January 2021. He links these cases to specific outbreaks resulting from gatherings over the holidays.

The government prosecutors continue by asking Dr. Massé about the threshold deemed appropriate to invoke a curfew in the region, and whether the scientific data at the time met that threshold. Dr. Massé opines that they had only partial knowledge of the efficacy of curfews in a public health emergency context. He and his team relied upon reports on non-pharmaceutical interventions (NPIs) provided by the WHO and the European CDC. These bodies provided an evaluation of all possible measures. The curfew was deemed an unproven measure.

On January 8, 2021, public health officials analyzed a study published in France and included in a European surveillance bulletin. Dr. Massé also states that they relied on a second study published in Nature in December 2020, on human behavior. The study dealt with behavioral science.

On this same date, public health officials ask for intense collaboration with the government and other institutional bodies. They consider the Greater Montreal Area to be in a state of emergency. They decided to invoke the curfew as a means to “send a clear message” to the population as they noted a lack of adherence to measures that were already in place. He goes on to cite a survey conducted that concluded that 68% of Quebecers were in favor of implementing a curfew order.

The government prosecutors ask Dr. Massé why he implemented a curfew order in Abitibi and not only in the GMA where the situation was urgent. Dr. Massé responds that cases were progressively increasing in the region prior to Christmas and that it does not take a large number of new cases in Abitibi to cause big problems. He further states that Abitibi was a region of reference in terms of hospitalizations for the rest of the province. As such, patients in the region that cannot be treated locally are sent to Montreal for treatment. He again testifies that public health needed to send a strong and uniform message to the population that would not result in confusion or ambiguity.

CROSS EXAMINATION BY DEFENSE LAWYER, OLIVIER SÉGUIN

Olivier Séguin, lawyer for the defendant, begins his cross-examination of Dr. Richard Massé by setting up the way the modern framework of the Public Health Act in Quebec was developed. He mentions how in 2001, the then Minister of Health, Rémy Trudel, developed the new Act. It is stated that Article 128 of the PHA (LSP) was never used. Both the witness and Séguin detail the history of the development of the modern Act beginning with its historical roots in the Civil Security Act (CSC). Séguin questions whether the appropriate authority to invoke a curfew is Public Health or Public Security. He references the Loi sur la sécurité civile which had jurisdiction in similar matters prior to the introduction of the Public Health Act in 2001.

The LSP is introduced on June 14, 2001, while the older Loi sur la sécurité civile is considered inadequate. Further discussion centers around the coordination of different ministries, the power to requisition the aid and support of other ministries, such as the ministry of security, for reasons of public health.

Séguin asks Dr. Massé what the difference is between a pandemic and an epidemic. Dr. Massé responds that a pandemic affects multiple countries while an epidemic is populational (within the bounds of our own territory).

Séguin provides the definition of both terms as defined by the Dictionnaire Druide. Some discussion about the definitions ensues as Dr. Massé expresses that he does not necessarily base his knowledge on the definitions provided by basic dictionaries, but rather by more complex medical textbooks.

The witness and lawyer continue to discuss protections of public health. Dr. Massé testifies that there are both individual and collective measures in public health to mitigate the spread of infectious diseases. The discussion then centers around the Loi sur la protection de la santé publique.

Dr. Massé offers that the LSP is broader and more all-encompassing than the former LPSP which dates back to 1972. The modern LSP focuses more on factors that determine health.

The ensuing exchange centers around governmental jurisdictions. Article 54 of the LSP states that the Minister of Health is counsel to the government. Article 2 of the LSP states that certain powers are conferred to the MSSS and Public Health. Article 123 of the LSP states that this is the case during a public health emergency.

Dr. Massé now comments on the swiss cheese model. He refers once more to individual versus collective public health measures.

Séguin asks Dr. Massé if the so-called war against disinformation could be considered a layer of cheese in the swiss cheese model.

Toward the end of his testimony, Dr. Massé suggests that a curfew order was one of the last available measures of public health used to slow the spread of infectious diseases like COVID-19. He further stated that he is not necessarily in favor of using all the available public health measures, specifically citing mandatory vaccination as an unacceptable measure, in his view. Judge Beaulieu asks Séguin why he doesn’t ask Dr. Massé why he is against mandatory vaccination. Dr. Massé replies that mandatory vaccination attacks the inviolability of the person (l’intégrité de la personne), and he would firmly defend this belief until his death.

The examination of the witness is concluded.

The lawyers for the defense inform Judge Beaulieu that they need time to modify their argumentation plan and their motion due to facts uncovered during the testimony of several of the witnesses.

DAY 3 – Wednesday, September 20, 2023

9h30 am – Lawyer for the defendant, Samuel Bachand, introduces a Project of amended motion (Projet de requête amendé) as a result of facts revealed during testimony, especially with regard to two key witnesses, Massé and Arruda. He claims the right to amend the defense’s motion.

Bachand petitions the court to allow the modifications based on the discovery that certain delegation of powers was not within the purview of public health objectives. He argues that the curfew order was beyond the limits of the authority granted by the LSP. He further argues that the Oakes test was not satisfied in terms of rational link between the measure and its objective, nor in proportionality. He further states that peaceful protests were directly targeted by the government and the authorities.

Bachand then states that the curfew breaches Article 7 of the Canadian Charter of Rights and Freedoms. Given the newly discovered evidence that materially changes the arguments he intends to present, Bachand petitions the court to normalize the situation by allowing modified arguments that reflect the new evidence.

Government prosecutor François Lamalice replies by arguing that the defense lawyers are not respecting the framework of their own Notice of Constitutional Question (Avis 76) and the Article 77 of Code of Civil Procedure (CPC). He states that he is now faced with several unexpected “surprises,” such as the withdrawal of witness testimony and evidence, the withdrawal of an expert report provided by Dr. Patrick Provost, and the liberation of the witness, Éric Litvak. He further mentions that they did not anticipate that the witnessing police officers would be called to testify on Charter grounds and not on the alleged facts of the situation. He argues that the framing of the debate would have to be respected and he demands that no further surprises be accepted by the court after all proof is submitted.

The government prosecutors argue that they do not know where the defense is heading and need time to adjust their strategy. They ask if further evidence will be submitted. They then ask that the Court require the defense to properly identify their arguments.

Samuel Bachand responds: There are no surprises and no prejudice. There is no motive to cede any ground to the government prosecutors. The theoretical basis for their case remains unchanged.

Judge Beaulieu reviews the anticipated changes brought forth by the defense and both parties go through the details of what will be added and what will be dropped from the proceedings. The government prosecutors request that the lawyers for the defense properly highlight the passages in their supporting documents and evidence workbook, as per rules of practice.

Pleadings are scheduled for 9:30am, Thursday, September 21.

DAY 4 – Thursday, September 21, 2023

PLEADINGS

Olivier Séguin, lawyer for the defendant, opens his pleadings with an anecdotal story about his trip from Montreal to Abitibi prior to the present proceedings. He shares with the court how he noticed large numbers of homeless people in and around metro stations in Montreal, such as Atwater. He notes that people outside were generally happy and smiling. He quotes Dostoyevsky, “everybody needs to be somewhere.”

He then describes his reaction to the pandemic declaration in China at the onset of the COVID-19 saga. He suggests that, within a very short span of time, we lost our appropriate framework of analysis. (cadre d’analyse) in a free and democratic society.

He suggests that, while the pandemic was still ongoing, it was difficult for the judiciary to take a position on governmental measures. But now, with the pandemic and all associated public health measures behind us, it is time for the courts to take back their power without hesitation.

Séguin introduces articles 1 and 9 of the Canadian Charter of Rights and Freedoms and their roots in principles of Common Law that date back to 1982. He argues that the curfew order very closely bordered on a state of detention. Violators could be arbitrarily detained by the State. He suggests that respecting the law does not always equate to acting morally. The law, according to Séguin, has its limits as they are inanimate objects. Laws do not have wants but only intentions.

Séguin continues by introducing Article 123, paragraph 8 of the LSP. He suggests to the court that Dr. Massé had no business conferring extraordinary powers in times of pandemic. He suggests that the role of the LSP is limited to epidemics. He goes on to argue that it is inexplicable that a curfew was declared on a national (provincial) level. He cites several examples of abuses of authority similar to the invocation of the curfew as a measure of public health. He argues that no one can say, “I am the law.”

Séguin continues to plead that the Emergencies Act was never before invoked for reasons of public health. This would be the first time that the Oakes test would be used to evaluate its legitimacy. He cites the Defense of the Realm Act (UK) and the War Measures Act in Canada. He exposes the history of the use of these Acts from 1920, 1947, and then 1970 in Quebec with the October Crisis. In 1988 a new Act is introduced, the Nouvelle Loi sur les mesures d’urgences en temps de paix.

Séguin pleads that, in 1970 with the October Crisis in full swing, a journalist asked the then Prime Minister Pierre Elliot-Trudeau how far he would be willing to go (to suppress the crisis) to which Trudeau responded, “just watch me.” Séguin suggests that this was very telling in terms of the dangers of arbitrary power.

Séguin goes on to explain how most Canadians are familiar with the Charter of Rights and Freedoms but very few have any knowledge of the Public Health Act (LSP). It is not a law that is commonly known by the public.

He petitions the court to render a judgement in law. He explains that the deep state, a sort of permanent government (author’s note: Séguin is referring to a permanent administrative state that operated through a plethora of bureaucratic departments) that has grown over the past 20 years now manages crises. They often determine their courses of action based on public opinion polling. Séguin argues that this is a profound error and that the guarantees of freedom and protections afforded to Canadian citizens have nothing to do with public surveys.

Séguin moves on to describe attacks on individual liberties. He offers that the Charter protects individual liberties, or singular rights. He frames this within the context of Dr. Massé’s earlier testimony whereby he describes having discussed with police officers the possible methods they could use to limit private gatherings. Dr. Massé suggested that the police would have to avoid entering private residences. As such, a curfew became a work-around that would result in the same objective. Séguin pleads that one is not free inside their home if they are not free to leave their home.

Séguin pleads that the decree (2-2021) is not based on any normal rule of law. He suggests that the presumption that Article 123, paragraph   8 of the LSP is constitutional is problematic. Here, we have a government issuing a decree with an arbitrary measure. As soon as we leave the framework of a free and democratic society, we can no longer debate or circumscribe the measure. We are left with total subjectivity and must ask ourselves; how far can we go?

Séguin reintroduces the interface between two separate laws, the LSP and the LSC. The LSP, he argues, does not apply to pandemics and the LSP does not consider the LSC.

State of national emergency: Séguin describes how the curfew was declared on January 8, 2021, in a fashion that was predetermined in length and applicable to all. It was a declaration that sent a signal of authority to exercise a measure of control. While the ends might be legitimate, the means run contrary to the spirit of a free and democratic society. People have the right to take risks. But in this case, the government had gone further than it ever had before since the introduction of our Charters. A dangerous precedent was set.

SAMUEL BACHAND, LAWYER FOR THE DEFENDANT, PLEADS (10:25am)

« Le pivot de l’argument selon le test Oakes est de tenir le gouvernement à l’objet de la loi qu’il a utilisé. »

The crux of the argument, according to the Oakes test, is to hold the government to the object of the law that it employed. Bachand argues that the government broadly surpassed the authority of the law. The LSP was not the appropriate legal vehicle and was limited in its scope to epidemics. Conversely, the LSC gave the government the authority to handle major catastrophes such as pandemics.

Bachand continues to argue that the Public Health authorities were subordinate to other jurisdictions. The LSP was the wrong instrument to invoke a national emergency.

Oakes test: “The nuclear bomb is not a weapon found in the arsenal of the LSP.” In this case, the curfew is not a public health measure.

LSC – Loi sur la sécurité civile – Bachand references a press conference from March, 2020, where he argues that Dr. Arruda had no specific motive to mince his words regarding the curfew measure. In Arruda’s opinion at the time, the measure seemed farfetched in the context of public health. In Dr. Arruda’s words, it is not something that is used in public health. Rather, it is a measure used in times of war or martial law, but not in public health and not within the purview of the LSP.

As per to Dr. Arruda’s testimony, the curfew, Bachand argues, was a communications tool. Bachand characterizes this as “good faith propaganda.” As was repeated often, the measure was intended to “send a clear message to the population.” As per Dr. Massé’s testimony, it was a measure of social control with a communicative nature, not a public health one.

Bachand reintroduces the Swiss cheese model and qualifies it as being conceptually awkward. It is a model, Bachand argues, that was developed by communicators and one that resembles an illustration aimed at children. Bachand argues that the model is nothing more than a communications tool and that it is not the job of public health to convey this type of information.

Bachand pleads that the objective of the curfew measure is outside the purview of the LSP. He continues to plead regarding freedom of expression and peaceful reunion. He cites C.S. Villeneuve in jurisprudence. The defendant’s protest convoy party is protected by articles 2a and 2b of the Canadian Charter of Rights and Freedoms and the authorities wilfully breached those rights. The protest was specifically targeted by the authorities, Bachand argues. The protest did not represent a specific threat to public health but instead served to defy authority.

Bachand cites articles 7 of the Canadian Charter and article 1 of the Quebec Charter of Rights and Freedoms. He frames his analysis within the Oakes test citing article 9.1 of the Quebec Charter. As per article 7 of the Canadian Charter, life, liberty, and security of the person means that a person has the right to do with their body as they see fit. This is constitutional guarantee. The curfew measure is rooted in penology. Bachand references article 742 of the Civil Code. He pleads that alternative measures were more appropriate, and that the curfew is a violation of article 7 of the Charter. Its scope is excessive in nature. Public health invoked the curfew as a complimentary measure rooted in control. It targeted youth, specifically recalcitrant youth. Yet the witnesses omitted to specify what percentage of the population was recalcitrant.

Bachand continues his arguments on the Oakes test. He argues that the objective needed to be urgent and real and that there existed no rational link between the objective and the measure, as per the LSP. Bachand cites Dr. Massé’s testimony regarding less aggressive alternatives.

Bachand pleads the lack of proportionality as per the Oakes test. In this case, he argues that the measure was used outside the purview of the LSP. The presumption that the measure was lawful reverses the pyramid (or hierarchy) of judicial norms. Public Health invoked the measures. The curfew placed everybody in a state that closely resembles detention. It gave the police unprecedented powers to detain citizens without suspicion of wrongdoing. Bachand argues that people do not have to justify their presence outside. The LSP was used as an expedient to turn the lives of people upside down. This led to several societal problems, including but not limited to spousal abuse, depression, consumption of drugs and alcohol, and other known problems. As the defendant, Stéphanie Pépin, testified, the measure caused family and relationship difficulties and the uneasy feeling of being locked in a cage. This represents an institutional prejudice.

End of pleadings for the defense.

François Lamalice, government prosecutor, begins his pleadings:

(Author’s note: The pleadings of François Lamalice are technical and procedural in nature. They resembled more of an exercise in combing through the specifics of the defense’s reamended motion.)

Lamalice reiterates that the case must be framed within the purview of the Notice of Constitutional Question (Avis 76, 77, C.P.C.) He then argues that the curfew was invoked by executive decree and benefits from a presumption of validity. He exposes the procedural nature of the measure as it is rooted in administrative law, not constitutional law.

Lamalice goes on to refute the defense’s allegations about the distinction between an epidemic and a pandemic as they are considered by the law. Lamalice argues that the LSP is adapted to deal with public health emergencies. He cites Dr. Massé as expressing that there is coordination between governmental bodies and ministries. The curfew decree was adopted by the government according to powers granted by the LSP.

Lamalice cites article 3 of the LSC. A pandemic is a major catastrophe (sinistre majeur). Article 2(1) qualifies the notion by adding, such as … pandemic.

Lamalice cites Bricka as jurisprudence.

(Author’s opinion: Bricka is the case most cited by government prosecutors in COVID related legal challenges. Its conclusions and theories border, in this author’s humble opinion, on underpinnings of authoritarianism. It essentially argues that the government is in its power to do virtually anything in times of public health emergency, as long as the actions are undertaken in good faith. It further suggests that the courts have no business reevaluating the legitimacy of measures undertaken in times of emergency and that great deference must be given to the legislature. Lamalice reiterates this point in his pleadings.)

Lamalice continues his pleadings by elaborating a comprehensive framework for all the possible ways in which fundamental freedoms can be limited or abridged.

(Author’s note: This begs the question, are freedoms still freedoms if they are not absolute? If governments can abridge freedoms for any manner of justification that they see fit, are they still freedoms?)

Lamalice argues that the alleged breaches of Charter rights such as freedom of expression were not beyond the considerations of Article 1. He contends that peaceful protests were not specifically targeted as alleged by the defense.

(Author’s note: Both participating police officers in the case testified on record that they were specifically targeting protests and did so by monitoring social media posts in advance.)

Lamalice argues that several exceptions to the curfew order were provided in the decree.

(Author’s note: The decree did not provide an exception for the homes and law enforcement was seen giving tickets to homeless people.)

Lamalice cites a previous case that invoked the legal concept of Habeas Corpus. He argues that the curfew had its limitations.

In terms of proportionality, Lamalice arguers that there was no breach of Charter rights within the framework of Article 1.

Rational link: The violation was insufficient according to Lamalice.

Objectives: According to Lamalice, the curfew had more than one objective and respected the legal framework as elaborated by the Supreme Court. The objective can be difficult to properly identify but, in this case, the ends justify the means.

Lamalice characterizes the measure as an electroshock treatment with the objective of protecting a fragile healthcare system. He reiterates that its primary objective was to send a message to the population to protect public health.

End of pleadings by François Lamalice.

1:45pm – Government prosecutor, Marie-France Lebel, begins her pleading.

Lebel opens her pleadings with an analysis of the Oakes test. She argues that the violations of Charter rights were justified under articles 1 and 9.1 of the Canadian Charter. She pleads that the threat to public health was real and imminent, and that the response was reasonable, rationally linked to its objectives, and proportional.

Lebel continues to argue that the decree was a public health measure that was properly measured and efficient. She argues that the pandemic was exceptional, urgent, and evolving. She states that, as such, the requirement to justify such measures is different from normal.

Lebel cites the Motor Vehicle Act (1985).

Lebel continues to argue the context of the LSP, articles 123 and 118. She pleads that the threat to public health was severe and that the measures in response were required but still limited. She cites article 122 of the LSP suggesting that the Legislative Assembly had the right to denounce the adoption of measures but failed to do so.

Lebel pleads that the measures were adapted as a function of the progression of the pandemic and its seriousness in terms of consequences, i.e., deaths, hospitalizations, healthcare system capacity and lack of tools (such as vaccination) to slow the impacts.

She argues that the measures already in place were ineffective or inadequate to achieve the goals of public health. She pleads that public health based their decisions on previous experience and on their knowledge but were facing time constraints to act. Lebel then argues on the basis of the precautionary principle in public health. Violations must be minimized but a great deference must be given to the government in terms of choice of measures. She sites the Trinity Bible Chapel vs. Ontario as jurisprudence.

Lebel then pleads that the curfew was temporary in nature. It had goals that were complimentary to other measures already in place to reduce contacts.

(Author’s note: The government prosecutor François Malice admitted in his testimony that the curfew would minimally impact the public since most people are already home between 8pm and 5am and, since restaurants and bars were already closed, they really had no reason to go outside. This author questions how the measure could be considered effective if, by the government’s own admission, it was minimally impactful. Other than sending a clear message, as it was repeatedly stated, the measure had no grounds in law, logic, or reason.)

Lebel continues her analysis of the Oakes test by suggesting that the curfew order had important objectives. She pleads that it served to establish the urgent nature of the threat to public health in terms of case numbers, hospitalizations, and deaths. She then goes on to describe the epidemiological situation as it evolved in December of 2020 and January of 2021. She cites government statistics on cases, hospitalizations, and deaths. In her analysis, she repeatedly admits that the situation was far more alarming in Montreal and the GMA. She does not reference the specific situation in Abitibi at this point.

Lebel argues that Abitibi-Témiscamingue is a zone of reference for Montreal. As such, the situation in Montreal has an indirect impact on the region as Montreal’s capacity to admit patients from Abitibi depends on its overall healthcare capacity.

End of pleadings.

2:50pm – Comments and cross examination

Having conserved time for commentary, Bachand returns to refute points alleged by the government prosecutors. He begins by refuting the point made by Lebel about the jurisprudence she cites that invokes the precautionary principle and the deference that must be accorded to the government in terms of choice of measures. Bachand argues that these choices were made by the government and not by the legislature. It is the government's actions that are in question.

Proportionality: Bachand argues that the damages resulting from the measures were improperly framed. The damages suffered by the defendant, such as arbitrary detention, affected the whole of the province. This was a direct result of the measure, as considered by Article 7 of the Charter.

END OF PLEADINGS AND PROCEEDINGS

A decision is to be rendered by the Honorable Judge Beaulieu on January 30, 2024, at 2pm EST in Amos, Québec.