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Challenge of Nova Scotia’s sweeping injunction against public gathering continues

KJIPUKTUK (Halifax) – After a judge struck down a challenge of the injunction on public gatherings last month, calling the matter “moot,” a non-profit organization is determined to have their day in court.

The Canadian Civil Liberties Association (CCLA) is continuing a challenge to the ethics of an injunction against public gatherings to the province’s court of appeals. 

In a hearing Thursday, Nasha Nijhawan, representing the CCLA, requested an extension of time to file a notice of appeal. 

On behalf of the Attorney General, lawyer Duane Eddy argued that the injunction is a dead issue, saying the challenge has no standing because the original order has been vacated. 

The injunction has been subject to both public scrutiny and pause from legal experts, who raised concerns about the scope of the gathering ban.

The injunction, ordered by the provincial government and granted by the Supreme Court of Nova Scotia, took effect on May 14, the day before an anti-mask and anti-vaccine disinformation campaign, “Freedom Nova Scotia,” planned to deliberately violate public health orders in a demonstration at Citadel Hill. 

The May 14 news release from the Nova Scotia Government was specifically titled, “Injunction Granted to Stop Anti-Vaccine, Anti-Lockdown Protests.” 

“Our collective responsibility is to keep everyone safe,” Premier Iain Rankin said at the time.

The injunction “prohibits any rally that would contravene the province’s public health directives.” The injunction goes further, “also prohibit[ing] organizers from continuing to promote the rallies on social media.”

It didn’t take long for things to go wrong. As I wrote in May: 

“The injunction signifies an escalation by the provincial government and police; an escalation so sweeping that in the same day, the injunction was used as justification to ticket and arrest demonstrators at a Free Palestine caravan rally in Halifax’s south end. 

In total, more tickets were issued at the Free Palestine (17) car rally than an anti-mask rally (11).”

The injunction was lifted on June 22, a week before the decision was scheduled to be challenged in court, at the request of the provincial government. The timing around the injunction ending left a roadblock for challengers of the order, forcing the CCLA to challenge an order that no longer exists. The CCLA argues, however, that its implementation creates a precedent in Nova Scotia that ought to be reviewed by the province’s Supreme Court. 

In a July 19 press release, the CCLA said of the injunction:

“It effectively barred all public protest activity and made anyone in breach of the order immediately subject to arrest for contempt of court. Importantly, the public health measures could already be enforced by ticketing, but the province’s injunction provided a new and harsher instrument for enforcement, likely designed to deter protesters. 

While the injunction is no longer in force in the province, we remain concerned about the circumstances that led to such a broad injunction being obtained without the Court hearing any arguments from any party other than the government. The order curtailed fundamental freedoms under the Canadian Charter of Rights and Freedoms and we do not believe that there was a legal basis for granting this kind of order.”

A major legal issue raised by the CCLA and law experts alike revolves around the procedures of an “ex parte” hearing, used to implement the injunction in the first place. “Ex parte” or “for one party” hearings are usually reserved for emergency restraining orders or temporary custody. The orders remain in place until a formal hearing, where both parties can argue their case, and a judge can weigh the evidence.

Nijhawan argued Thursday that the challenge is not seeking a “de novo” hearing, where a judge looks at the matter with a fresh set of eyes. Instead, the CCLA wants to appeal the underlying order, made by the Attorney General, to seek the injunction to begin with. 

The question the Justice must answer is whether they have discretion to hear an appeal on an order that has already been vacated. The request, for an extension to file an appeal, is set to be reviewed in two weeks, after additional submissions from the CCLA and a response from the Attorney Generals’ Office.

See also: Judy Haiven: Halifax police not letting a good injunction go to waste

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