Don’t Make Idiots into Martyrs

This post is co-written with Mark Mancini

In Alberta Health Services v Pawlowski, 2021 ABQB 813, a judge of the Alberta Court of Queen’s Bench sentenced a preacher opposed to anti-pandemic public health measures and his brother to steep fines for contempt of court. The defendants had ostentatiously breached court orders requiring them to comply with various public health requirements, and there is no question that they deserved punishment. But the remarkable thing about Justice Germain’s ruling, and the reason, we suspect, why it made the news, was an additional component of his order. “[W]hen … exercising [their] 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)” the defendants

must indicate in [their] 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.

This order manifests a deeply disturbing, not to mention likely unconstitutional, disregard for freedom of expression. And Justice Germain’s judgment suffers from other deep flaws on its way to this untenable conclusion, which make his decision all the more troublesome.

We should start by saying that, on a personal level, we have very little sympathy for the defendants’ cause. While reasonable people can always debate the specific measures being taken by the authorities―even to combat a pandemic―there is nothing reasonable in denying the seriousness of the situation, or in opposing vaccinations, which are our only hope to get out of this mess. And while both of us have written with some sympathy about civil disobedience, as practiced by people such as David Thoreau and Martin Luther King, civil disobedience involves acceptance of punishment―not flagrant disregard of the court system.

But the court system, for its part, should not beclown itself, even when dealing with jackasses. Justice Germain, alas, sets the tone quickly. “Alberta”, he writes,

has been and is in its worst shape ever concurrently with these sanction hearings. It is not an overstatement that Pastor Artur Pawlowski and his brother Dawid Pawlowski have contributed to this ominous health situation by their defiance of the health rules and their public posturing, which encourages others to doubt the legitimacy of the pandemic and to disobey the AHS Health Orders designed to protect them. [5]

The idea that the defendants deserve punishment not only for breaking the rules and the court orders enforcing them (which, to repeat, they do), but also for what they say and for what others make of what they say runs through Justice Germain’s reasons and taints his decision. Much of the opinion concerns what the judge personally thinks of the conduct of the defendants. But whatever one’s personal views, a judge cannot justify a decision that forces someone to agree with a particular law. The decision, in this sense, is incompatible with a free society where people can be required to comply with the law, but not to support it, as a majority of the Supreme Court held in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269.

One example of Justice Germain letting his personal views get the better of his judicial duty is his indignation at the fact that the defendants present themselves as martyrs. He is especially upset because one of them has done so “on a speaking tour in the United States where he parlayed his title as a pastor and the fact that he had been arrested for holding a church service into a rally cry that attracted like-minded individuals”. [33] For Justice Germain,

It is disappointing that Pastor Pawlowski had to air his grievances about Alberta in another country. Leaders and statesmen don’t do that. During his sanction hearing, AHS played some trip reports in which Pastor Pawlowski oozes hubris, while relishing in his notoriety. He got to take a picture with a governor of a U.S. state. He is proud of what he asserts is the love of the U.S. people for him. Love he implies he is not feeling in Canada. [34]

In a free and democratic society, no citizen is legally required to be a patriot. Punishment for not loving one’s country in accordance with its authorities’ idea of what such love ought to look like is a hallmark of dictatorial regimes. It is distressing to see a Canadian judge failing to comprehend this.

In a slightly different vein, Justice Germain is also angry that Mr. Pawlowski’s “accuses the Court of being a ‘tool of the government’” and so “show[ing] no civic understanding of the independence of the Courts and their distance from the government”. [35] To the extent that this anger contributes to Justice Germain’s choice of punishment for the defendants, it comes perilously close to being a sanction to the old contempt by “scandalizing” the court―that is, by making statements tending to bring the court into disrepute or to undermine its authority. The Ontario Court of Appeal held that this offence was unconstitutional in R v Kopyto, 62 OR (2d) 449, all the way back in 1987.  

Next, Justice Germain observes that, even as “Pastor Pawlowski makes much virtue of his status in Canada as an immigrant from Poland”, he also “describes health authorities as Nazis”. [36] To the judge, “[i]t defies belief, that any immigrant from Poland (having studied the atrocities of the Nazis in that country) could identify a doctor of medicine trying to keep people alive as a Nazi”. [36] At human level, one might sympathize with Justice Germain, but coming from a judge as part of reasons for sentencing, the suggestion that an immigrant might be held to some kind of special standard due to his origins strikes us as troubling.

These personal views take centre stage in Justice German’s opinion. The law is forgotten; only briefly does Justice Germain seem to acknowledge the relevance of freedom of expression to the case before him―and in a way that shows that, in truth, he just doesn’t get it. He says that “Pastor Pawlowski is entitled to express views about the government, the Courts, and AHS, but he must do it in a respectful, hate-free way that does not breach AHS Health Orders”. [37] To be sure, freedom of expression doesn’t extend to breaching court orders. But nor does it have to be exercised in a “respectful, hate-free way” as a matter of law (though as a matter of morality, we usually hope the freedom of expression is exercised in this way). One might, of course, refer to the US Supreme Court’s well-known decision in Cohen v California, 403 US 15 (1971), the “fuck the draft” case, where Justice Harlan famously wrote that “one man’s vulgarity is another’s lyric”. (25) But, closer to 2021 Alberta in time as well as in jurisdiction, let us note Justice Miller’s opinion for the Court of Appeal for Ontario in Bracken v Town of Fort Erie, 2017 ONCA 668, where it was argued that a loud protest was tantamount to violence and hence unprotected by the Charter’s guarantee of the freedom of expression:

A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b) [of the Charter].

…

A protest does not cease to be peaceful simply because protestors are loud and angry. Political protesters can be subject to restrictions to prevent them from disrupting others, but they are not required to limit their upset in order to engage their constitutional right to engage in protest. [49-51]

Justice Germain insists that

Pastor Arthur Pawlowski, his brother Dawid Pawlowski, and others that I dealt with in the sanction hearings are on the wrong side of science, history, and common sense on this issue. The growing number of dead and dying in North America from COVID-19 infection cannot be ignored, nor defined as a false reality. [38]

This is true. But the consensus view of science, history, and common sense, even to the extent that it exists, as here, is not and must not be an official ideology that all citizens are required to endorse. For this reason, while Justice Germain’s sentencing the defendants to a fine and community work is justified, his further order quoted at the beginning of this post is not. In a free and democratic society, which is what the Charter says Canada is, citizens are not required to make themselves into instruments of government propaganda when they engage in political or religious speech. Nor are they required to confess to their own heterodoxy, as Justice Germain would have the defendants do. It is for others to make that showing against them.

We might understand what Justice Germain did if he had framed his opinion in traditional legal terms. But his findings on s. 2(b) of the Charter, such as they are, are couched in personal opinion and conjecture. He does not conduct any analysis about freedom of expression of the sort that we have come to expect from Canadian courts. Indeed, he does not refer to precents on freedom of expression either. When it comes to determining whether his order is justified under s. 1, the only way Justice Germain addresses proportionality is through a comparison of his remedy to an order of jail time. He says that “many reasonable individuals will view the sanctions that I impose to be more beneficial in repairing the harm Pastor Pawlowski and his brother did to society than a short period of jail that will perhaps martyr them in the eyes of their followers”. [43] Yet this is not the test. Our constitutional law, in order to afford speech protection, does not count how many “reasonable people” support a particular exercise of speech or a particular way of repressing it. Not to mention, this statement does not consider, at all, the severity of the impact on the defendants’ freedom of expression—no matter how distasteful we might find their message.

We should note that Canadian case law on the subject of compelled speech is relatively sparse and nowhere near as robust as one would wish it to be. While National Bank, to which we refer above, rightly described attempts to coerce support for existing laws as totalitarian, Slaight Communications v Davidson, [1989] 1 SCR 1038 upheld an arbitral order that an employer state certain facts, found by the arbitrator, in a letter of recommendation provided to a former employee. The majority distinguished National Bank on the basis that Slaight concerned compelled statements of fact, rather than of opinion.

Ostensibly the order given by Justice Germain is framed as a factual statement. There is thus at least an argument that it is valid under Slaight. But this matter is also different from that case―even assuming that it was correctly decided. Justice Germain’s order applies whenever the defendants are speaking on a broad swathe of issues of pressing public concern and, contrary to what was the case in Slaight, the defendants vigorously―if not at all reasonably―dispute the facts they are required to convey. Justice Germain’s order requires them to undermine their own messaging and so to expose themselves to public ridicule if they wish to speak at all.

Thus, even as he gets on his high horse about science, common sense, and the importance of respecting court orders, Justice Germain simply ignores the constitution which constrains his own powers. In denouncing the defendants’ quest for martyrdom and, seemingly, punishing them for their opinions, he is in fact making them into martyrs. Indeed, thanks to him, they are now martyrs for free speech rather than only for covidiocy. We hope that there is an appeal, and the Justice Germain’s decision is reversed. So long as it stands, it is a much more serious affront to the dignity of the Canadian judiciary than anything the defendants―whom we do not mean to excuse―have done.

And that, perhaps, is the important point. COVID-19 has challenged all Canadian institutions in different ways. The challenges have been significant. Courts specifically have been asked to rule  that, at times, public necessity outweighs personal freedoms. We believe COVID-19 presents a number of these situations quite starkly. But when courts must make this judgment, they should do so by predictably applying established doctrines, and in a way that gives due respect to the rights and freedoms at issue. When the judicial analysis is perfunctory, or advanced as part of a personal opinion, public belief in the courts as guarantors of a government of laws, not men, is understandably diminished. This should worry us.