Alberta judge’s anti-free speech ruling must be challenged

Alberta Court of Queen's Bench Justice Adam Germain's ruling hostile to a free and democratic society

Don HutchinsonPolitically determined public health guidelines during the covid-19 pandemic have come with a cost.

Governments have defined essential and non-essential services, ostensibly to ensure Canadians have access to food. Not all can afford essential services food – that’s a story for another day – so food banks have remained open alongside grocery sellers. Several non-essential businesses closed because of COVID constraints. Others are on the verge of joining them as interim government supports expire.

Governments determined how many could gather, where, at what distance from one another, and most recently whether a vaccine passport is needed to enter. The long-assured as “non-mandatory” vaccine is ever more required, making use of progressively coercive measures directed toward those who wish to dine at a struggling restaurant, travel by air or rail, or satisfy managers of worthiness for continuing employment. Whether in government, health care, emergency services, or private sector, it’s jabs for jobs. ‘Fully vaccinated’ is already being supplemented by booster shots.

The above actions caused varying degrees of infringement on Canadians’ human rights. Government actions, largely based on guidance from advisory ‘science tables,’ have arguably been “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” as section 1 of the Canadian Charter of Rights and Freedoms expresses it.

Churches have, for the most part, been treated as comparable to businesses where people gather who are not employed there. Hand sanitizer, masks, social distancing, and capacity limits have been broadly, but not universally, accepted.

Click here to downloadBut in a culture that claims to value diversity and to guarantee freedom of expression, what is the cost to the individual or institution that voices a different message from that of government?

Calgary pastor Artur Pawlowski has a propensity to dissent from government regulation in his efforts to share the Gospel. In the past, despite notice from government authorities, he repeatedly used sound amplification equipment on city streets without a permit and failed to adhere to food preparation regulations when providing meals for the impoverished. On October 13, Pawlowski was sentenced for acts of civil disobedience which a judge had determined in June violated public health guidelines as also outlined in an earlier Alberta court order.

In Canada, those who engage in civil disobedience must be prepared for potential consequences delineated by governing authorities when those authorities implement measures prescribed by law. Bible passages oft-referenced by Christians who support or engage in law challenging acts reinforce that reality.

A more recent historical example is the Reverend Dr. Martin Luther King, Jr., who knew the potential consequences of marching for civil rights in the 1960s U.S. King did not resist when arrested and was peaceably taken to prison. While behind bars, he penned the inspirational Letter from Birmingham Jail, giving written voice to his Biblically informed peaceful assembly style of protest against unjust laws.

Pastor Pawlowski had to know he would potentially be subject to penalty for his actions in protest of laws he considers unjust. Imprisonment or probation, a requirement to adhere to public health guidelines during the period of probation, and a fine could all reasonably be anticipated. What could not be foreseen was a judicial order that Pawlowski mouth the majority opinion on COVID-19 government health measures at any time he might present his dissenting opinion in public. To me, and I am sure to many, the order of Justice Adam Germain, a representative of Canada’s independent judiciary, is improper, objectionable, and offensive to the concept of a “free and democratic society” as proclaimed in Canada’s constitution.

Jail Pawlowski. Fine him. That’s fair game. But Justice Germain’s order inhibits free speech by compelling involuntary speech.

A collection of interconnected and interactive independent fundamental freedoms is outlined in section 2 of the Charter. Among the freedoms listed are conscience, religion, thought, belief, opinion, expression, peaceful assembly and association. The combination comes into play in this situation.

Agree or disagree with Pastor Pawlowski, the response to dissenting thought, belief, opinion and expression in a free society is speech by someone on the other side of the issue, not dictated language as compelled by government or court.

The response to dissenting action in violation of law includes a reasonable list of penalties but cannot include court direction authorizing continued dissenting speech only when accompanied by corresponding mandated expression of judicially determined thought, belief, opinion, and words.

It would be regrettable if this decision by a single judge of the Court of Queen’s Bench goes unchallenged. I expect the decision will be appealed for two reasons. Artur Pawlowski is a fighter. And the speech encumbering order of Justice Germain pleads for reconsideration by the Alberta Court of Appeal.

The price of dissent in Canada’s free and democratic society cannot be the impairment of free thought, belief, opinion and expression.

Dissent, in fact, is a hallmark of a free and democratic society. Dissenting actions may bring consequences. But non-hateful dissenting opinions and words must be accepted even by those who disagree with them. Neither government nor the courts should be permitted to command a citizen to utter words to which he or she personally objects. Dissent is the price of living in a free society.

Difference – including in religion, thought, belief, opinion, and expression – is the cost, and benefit, of living in a diverse society.

Don Hutchinson is the Principal of Ansero Services, a Canadian charity furthering the task of Christian witness through partnering for religious freedom, and author of Under Siege: Religious Freedom and the Church in Canada at 150 (1867–2017).

Don is a Troy Media Thought Leader. For interview requests, click here.

Editor’s note: Justice Adam Germain served as a Liberal member of the Legislative Assembly of Alberta from 1993 to 1997. He was named to the Court of Queen’s Bench of Alberta by Jean Chretien.


This commentary was submitted by Convivium, Cardus’s online magazine. Cardus is a leading think tank and registered charity. Convivium is a Troy Media Editorial Content Provider Partner.

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