CCLA Seeks to Appeal Nova Scotia Anti-Protest Injunction

July 19, 2021

In mid-May, the Attorney General of Nova Scotia along with the province’s Chief Medical Officer applied to the court for a special kind of court order called an injunction. This order was obtained without the presence of any other parties, and while it was sought in relation to a planned protest challenging public health restrictions, the order that the province actually got from the Court went much further. It effectively barred all public protest activity and made anyone in breach of the order immediately subject to arrest for contempt of court. Importantly, the public health measures could already be enforced by ticketing, but the province’s injunction provided a new and harsher instrument for enforcement, likely designed to deter protesters. CCLA has argued, since the order was obtained, that it went too far and should be rescinded or narrowed. We were granted an opportunity to have a rehearing before the court, which would have allowed us to challenge both the legal and factual basis for granting the order.

Before the CCLA’s rehearing was scheduled, the province asked the Court to discharge (i.e. cancel) the injunction, arguing it was no longer “necessary.” While CCLA did not want the injunction in place, we did want the legal issues that resulted in it being granted in the first place to go before the Court. At the rehearing, however, the province argued that the case was “moot” and there would be no benefit to having a rehearing for an injunction that was no longer operative. The Court agreed and the rehearing was dismissed.

While the injunction is no longer in force in the province, we remain concerned about the circumstances that led to such a broad injunction being obtained without the Court hearing any arguments from any party other than the government. The order curtailed fundamental freedoms under the Canadian Charter of Rights and Freedoms and we do not believe that there was a legal basis for granting this kind of order. CCLA is now seeking the Nova Scotia Court of Appeal’s permission to appeal the initial decision that granted the injunction. Permission is needed in this case because while the rehearing was still pending, the time for appealing the initial decision expired. Our motion for this permission is going to be heard on Thursday, July 22, 2021. CCLA’s materials are available below.

Updates on the outcome of the hearing to come.

Court Documents

• CCLA Notice of Motion
• CCLA Affidavit in Support of Motion
• CCLA Brief of Argument
• CCLA Brief of Authorities