A flag from opponents of abortion will never fly at Prince Albert City Hall, but lawyers representing the Prince Albert Right to Life Association argue that's a "moot" point. (file photo/ paNOW Staff)

By Nigel Maxwell

Flag debate

Opponents of abortion appeal city’s flag decision

Jul 9, 2019 | 1:51 PM

A court case surrounding a controversial flag being flown at Prince Albert City Hall, could be headed back to court.

Lawyers representing the Prince Albert Right to Life Association have filed an appeal of an earlier court ruling. In June, an application for a judicial review of the city’s decision not to fly their flag at the courtesy flag pole was dismissed, but the group was still awarded $6,000 for legal costs.

The trial judge determined that 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. Lawyer Gordon Kirkby, who is helping represent the Right to Life group, told paNOW the issue of charter rights has not been fairly addressed.

“Fundamentally what is being dealt with in the appeal is the question of ‘mootness'”, as he put it.

The trial judge decided at the time of the trial that because the city no longer had a policy to fly flags, there was no point including that aspect in the decision. Kirkby said he would disagree with that argument.

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“It is our view that it is important that the court say that yes in this case. The charter rights were violated, even though there might not be the remedy of flying the flag,” he said. “This may not be so important in this case but this case has precedential value and we would be concerned about implications in other situations.”

John Carpay, lead council for the defence and president of the Justice Centre for Constitutional Freedoms, said there was a victory in the sense that the city got its “knuckles rapped” but added the award of $6,000, which would go to cover the legal costs, was not enough to cover the time put into the case.

“If that were to be translated into some market value, I don’t even know what that would be but it would be many multiples of $6,000,” he said.

The city ended its courtesy flag practice in May 2018. The city’s solicitor Mitch Holash told paNOW the appeal was not entirely unexpected.

“The matter was determined really to be a moot issue by the court in the Queen’s Bench decision and so we wonder about the productivity of the exercise here,” he said.

Holash said he would consider a cross-appeal, adding he had two weeks to make a decision.

“It would be a normal practice to cross-appeal so that all the issues are properly before the Court of Appeal. If they have to go there, they may as well consider all the issues,” he said.

In a previous article on paNOW Holash said the city tried to work with the group to find an alternative to the flag in 2017. He said applications to use the courtesy flag pole as part of local celebrations require the flag design to be submitted to the city in advance as part of the approval process, which wasn’t done in this case.

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nigel.maxwell@jpbg.ca

On Twitter: @nigelmaxwell