Sask. appeal court dismisses protest camp charter case

In February of 2018,a teepee went up in Regina's was can a park. It occupied the park and local headlines for months, and arrests were made before the camp was eventually dismantled.

However, following the arrests a legal challenge was made based on constitutional arguments. Those arguments have also been dismantled, now for a second time, as a recent decision from the Saskatchewan Court of Appeal found no error in a previous judge's ruling on the matter.

The decision, dated Sept. 15, written by the court's Chief Justice Robert Richards with Justices Peter Whitmore and Lian Schwann in concurrence, states the arguments of the appellants cannot succeed, and as a result the appeal was dismissed.

The decision lays out how the camp was erected, beginning with a single teepee in February of 2018. It also states how varying actions were taken in response to the camp, which apparently ran afoul of accepted park uses.

Eventually, when the teepee was not dismantled, on June 18 police moved in, and in what the decision calls an “emotionally charged” situation, Richelle Dubois, Gaylene Henry, Constance Dubois, Prescott Demas, Dinah-mae Papequash and Shannon Corkery were arrested. They were released when the central teepee was taken down, according to the decision.

Although the camp was resurrected, those who had been arrested sought legal “declarations that the dismantling of the camp and their arrest and detention on June 18, 2018, had unjustifiably infringed their freedom of expression and their right to be free of arbitrary detention.”

At the same time, the provincial government was seeking an order requiring the protesters to vacate under the Recovery of Land Act and the Provincial Capital Commission (PCC) asked for an order that protesters comply with park bylaws. The park protesters filed notice they would argue certain sections of the laws being relied upon for these orders were constitutionally invalid.

A then-court of Queen's Bench judge dealt with the case, and ultimately decided in favour of the government and the PCC, and ordered the protesters out of the park. Further, she found the arrests were lawful and the detention not arbitrary.

A notice of appeal took issue with those decisions, claiming “a number of errors allegedly committed by the Chambers judge.”

The park protesters argued the judged reversed the onus of proof when conducting the analysis required by the Charter of Rights and Freedoms, that she failed to factor reconciliation into that analysis, and that she made improper findings of fact in relation to the reason for the arrests and detention.

The panel of appeal court judges disagreed with these arguments.

Specifically, on the point about reconciliation, they found that the “goal of reconciliation” can play into such an analysis but that they understood the then Queen's Bench judge found the protesters, referred to as appellants, had not satisfactorily explained how reconciliation played out in the assessment of the Charter issues or how reconciliation could be given legal effect in the circumstances of this case.

Two other arguments that appear to have been part of a written submission were also explored within the decision. These too, the panel of appeal court judges found unsuccessful.