Discussons around this flag have been ongoing for nearly 13 years. (File photo/ paNOW Staff)

By Nigel Maxwell

Court proceedings

Sask. Court of Appeal upholds lower court’s decision in flag dispute

Aug 12, 2020 | 12:00 PM

All appeals have been dismissed by the Saskatchewan Court of Appeal (COA), with relation to arguments surrounding a controversial flag once flown outside Prince Albert City Hall.

In a written decision this week, the COA upheld an award of costs against the City for its misconduct in handling the Prince Albert Right to Life Association’s (PARLA) application to fly its flag, but declined to issue a declaration the City violated the Canadian Charter of Rights and Freedoms in the unique circumstances of the case.

Discussions around the pro-life flag date back to 2007, but it was not until May 2017 when the city ultimately declined to fly the group’s flag following some public backlash. At a trial last June, an application for a judicial review was dismissed, but PARLA was still awarded $6,000 for legal costs.

The trial judge determined the city did not follow its own flag policy or proceeded in a procedurally fair manner, and had not provided any “intelligible or transparent reasons” why it would not fly the flag.

The trial judge also concluded because the city no longer had a policy to fly flags, there was no point including that aspect in the decision. But PARLA was still seeking a declaration the city unreasonably violated the Charter’s freedom of expression. The Saskatchewan Court of Appeal however disagreed.

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“This was not a case that would settle a recurring point of law, thereby preventing further disputes,” Justice J.A. Ottenbreit wrote.

He then went on to explain “this was also not a case that presented issues of broad public importance beyond the present litigants.”

Ottenbreit also agreed with the original trial judge’s decision that because the city no longer had a flag policy, the matter was now moot.

In addition to PARLA’s charter challenge, the City filed its own appeal of the costs award. And just like the charter question, the court of appeal once again sided with the original trial judge’s decision that the city was at fault, and that PARLA was denied procedural fairness.

“That it failed to engage in a transparent process and give intelligible reasons, were not based on presumptions but were grounded in facts that evidenced a mishandling of PARLA’s application,” Ottenbreit wrote.

“PARLA, after making the application, was stonewalled by the city until it became impossible to fly the flag as had been done in past years. Members of the community are entitled to better treatment than this from public officials.”

On behalf of PARLA, the Justice Centre for Constitutional Freedoms has released a written statement, defending the decision to take the matter to the courts.

“When a municipality violates citizens’ rights, the Charter tasks our courts with the responsibility of vindicating citizens’ rights and providing a just and appropriate remedy for the violation, which may be a court declaration,” Justice Centre staff lawyer Marty Moore stated.

“We appreciate the Court’s recognition that our clients were ‘stonewalled by the city until it became impossible to fly the flag’, but believe it is necessary for courts to expressly uphold citizens’ Charter rights against unreasonable infringement by government.”

PARLA now has 30 days to appeal and could take the matter to the Supreme Court. Speaking with paNOW on Tuesday, Moore said the next move was still “under consideration.”

Meanwhile city solicitor Mitch Holash explained to paNOW the courtesy flagpole was an idea intended to promote constructive public discourse between interest groups and was never expected to be used as a platform for court cases.

“The city is of course pleased that all claims against the city have been dismissed and more pleased that it was done on the basis that there was no breach of the charter of rights and freedoms found to occur in these circumstances,” he said.

With respect to the $6,000 penalty the city must still pay, Holash explained the city described “the city was quite prepared to pay those costs and move on and has learned its lesson in terms of the courtesy flagpole.”

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nigel.maxwell@jpbg.ca

On Twitter: @nigelmaxwell@jpbg.ca