[1]                                      This is a summary conviction appeal arising from the conviction of the appellant, Ms. Chipesia, by Provincial Court for violating gathering restrictions imposed by s. 61 of The Public Health Act, 1994, SS 1994, c P-37.1 [Act]. On April 24, 2021, Ms. Chipesia was among 100 or more people who attended a rally billed as a “children’s freedom rally FUN DAY in the park”. The trial judge found that her participation in the event violated a public health order [PHO] made pursuant to the Act and The Disease Control Regulations, RRS c P‑37.1 Reg 11 [Regulations]. The PHO has since been rescinded. It restricted outdoor gatherings to no more than 10 persons. Following the event, Ms. Chipesia was charged with breaching the PHO.

[2]                                      A trial concerning the charge was held at Provincial Court. Ms. Chipesia was one of eight accused. Leading up to the trial she was represented by the same counsel as several other accused. At the start of trial, she discharged her counsel and has since represented herself.

[3]                                      The common issue raised by the defendants at trial related to whether s. 25.2(2) of the Regulations was validly enacted and whether the PHO was made pursuant to a valid delegation of power. In his judgment rendered January 17, 2023, R v Drebit, 2023 SKPC 8 [Trial Judgment], Agnew P.C.J. found each accused guilty. In so doing, he dismissed their arguments concerning validity for the same reasons he gave in R v Wong, 2023 SKPC 7 [Wong], in respect of an earlier rally at the same location.

[4]                                      At trial Ms. Chipesia focused her efforts on arguing that the PHO violated her right to freedom of conscience and religion. At the outset of trial she said she intended to argue that point under s. 2(a) of the Canadian Charter of Rights and Freedoms. The trial judge found that she had not provided advance notice of her intent to raise the Charter issue. Nor had she complied with the Court’s practice directives for raising such arguments. None of the other parties received notice that they would need to prepare to argue a Charter question. Although it does not appear to me that the trial judge prevented her from making arguments she wished to make, he advised during trial that because she had not served a notice concerning her Charter question, he would not give effect to any Charter arguments.

[5]                                      As well, Ms. Chipesia advanced arguments during the trial based on The Saskatchewan Human Rights Code, 2018, SS 2018, c S-24.2 [Code], but had made no complaint under the Code. The trial judge determined that in the absence of a complaint, he had no jurisdiction to entertain her arguments in that respect. He also observed that Provincial Court generally has no jurisdiction to hear matters arising from complaints concerning Code violations; the Code provides for this Court to have that sole jurisdiction.

[6]                                      The trial judge therefore concluded that Ms. Chipesia made no arguments to which he could give effect and he dealt only with the issues of valid enactment and delegation.

[7]                                      Ms. Chipesia’s notice of appeal contains one ground, which states: “Violation of fundamental human rights Canadian Charter of Rights and Freedoms”. She asks this Court to overturn the conviction and withdraw the fine. No other accused were involved in this appeal.

[8]                                      The respondents’ arguments on appeal were all advanced by counsel for the Attorney General for Saskatchewan [AG]. Although the AG’s position was that there was no valid basis of appeal when Ms. Chipesia had failed to give notice pursuant to The Constitutional Questions Act, 2012, SS 2012, c C-29.01 [CQ Act], out of caution they did not limit their arguments to that in responding to her appeal. The AG filed a helpful brief that sought to address arguments that might be considered to have been raised by a memorandum of argument that Ms. Chipesia had filed.

[9]                                      The issues raised by Ms. Chipesia in her memorandum of argument and/or oral argument were limited to violations under s. 2 of the Charter, and that the province’s actions were contrary to s. 10 of The Children’s Law Act, 2020, SS 2020, c 2 [CLA], and An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 [FNIM Act]. She did not, however, apply to amend her notice of appeal to assert breaches of the CLA and FNIM Act.

[10]                                 For the reasons that follow, I conclude that Ms. Chipesia’s appeal is without merit and must be dismissed.

[11]                                 Section 813(a)(ii) of the Criminal Code provides a right of appeal from a sentence passed in respect of a summary conviction offence. Section 812(1)(d) designates this Court as an appeal court in Saskatchewan. Pursuant to s. 822, ss. 683 to 689 apply (with limited exceptions) to summary conviction appeals under s. 813.

[12]                                 Pursuant to s. 686(1)(a), an accused may succeed on an appeal of his or her conviction if the verdict was unreasonable or unsupported by the evidence, on the basis of a wrong decision on a question of law, or if there was a miscarriage of justice.

[13]                                 Section 686(1)(b)(iii) of the Criminal Code is a curative provision. It provides that even if an appellant establishes an error by the trial judge, the court may dismiss the appeal if it finds that no substantial wrong or miscarriage of justice occurred.

[14]                                 Ms. Chipesia’s appeal must be dismissed. Although I will provide some brief discussion below of other issues raised in her written and oral arguments, the CQ Act represents the full and simple answer to her appeal. Sections 13, 13.1 and 14 state as follows:

[15]                                 Ms. Chipesia’s appeal must fail because at no stage in the proceedings below or before this Court did she serve or file any notice that challenged the validity of the PHO, nor any law or regulation. No notice having been served, neither Provincial Court nor this Court had jurisdiction to entertain any such challenge. See: Saskatchewan Government Insurance v Gorguis, 2013 SKCA 32 at paras. 17 to 36, 360 DLR (4th) 607.

[16]                                 Because that was the only ground contained in her notice of appeal, Ms. Chipesia’s appeal must fail.

[17]                                 Ms. Chipesia contended in argument before me that the CLA applied because it was a children’s rally and there were children present. She argued that the PHO created instability for Canada as a nation and harmed children and therefore was contrary to s. 10 of the CLA which provides as follows:

[18]                                 For several reasons, Ms. Chipesia’s arguments concerning the CLA cannot succeed.

[19]                                 First, the CLA, including and particularly s. 10 which sets out the best interests test, was enacted to govern parenting and how the Court makes parenting determinations. Nothing in the CLA even remotely suggests that it would apply to or negate otherwise valid government actions such as the PHO. That is made entirely clear by the opening words of s. 10(1) that clearly state its purpose: to define what a Court must consider in “making, varying or rescinding a parenting order” [emphasis added]. On its face, it does not govern state actions such as the making and enforcement of public health orders. Nor do I see any other provision of the CLA to suggest that the Legislature intended it to constrain state action based on the “best interests of children”.

[20]                                 The AG contends that the “best interests” principle was not intended to apply in a matter such as this. They cite Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4, [2004] 1 SCR 76, and in particular refer to the following passage from the majority’s reasons. The issue was whether various Charter provisions could override the manner in which s. 43 of the Criminal Code justifies the reasonable use of force by parents and teachers in correcting the behaviour of children in their care. The majority held that the “best interests” formulation is an important factor in many contexts but did not apply universally:

[21]                                 Finally, even if the “best interests” principle were to operate as Ms. Chipesia suggests, an argument that the PHO was contrary to the best interests of children would have to be grounded in evidence. Ms. Chipesia called no evidence at all. Evidence at trial was limited to a brief agreed statement of facts which the trial judge found Ms. Chipesia to have joined in. That statement identified no children, though photos forming part of it depicted a few children who represented a small minority of those present.

[22]                                 Accordingly, this argument must fail on the merits, though the Court need not have considered it at all because it was never pleaded.

[23]                                 Ms. Chipesia’s contention concerning the FNIM Act was as follows (from her written memorandum of argument):

[24]                                 Ms. Chipesia’s arguments under this heading must fail for the following reasons.

[25]                                 Although the FNIM Act was intended by Parliament to impact on state action, that was specific to the delivery of child and family services to First Nations, Inuit and Metis children.

[26]                                 In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 [Reference], the Supreme Court of Canada issued a decision that centred on the FNIM Act. Had Ms. Chipesia tendered evidence that could have triggered any provision of the FNIM Act, I would have invited supplemental submissions, but in my view that is unnecessary in the complete absence of such evidence.

[27]                                 Unlike s. 10 of the CLA, the FNIM Act was enacted at least in part with the intention that it would impact on state action. Section 8(b) of the FNIM Act provides that one purpose is to “set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children”.

[28]                                 In Reference, the Supreme Court summarized the pith and substance of the FNIM Act in the following manner:

[29]                                 That discussion continued in paras. 43 to 45, where the Court examined the FNIM Act’s objectives at a deeper level: to affirm that the inherent right of self‑government includes jurisdiction regarding child and family services, to establish national standards for providing child and family services in the Indigenous context, and finally to contribute to the implementation of the United Nations Declaration of the Rights of Indigenous Peoples. On that last point, the context recognized by the Supreme Court was focused on the rights of Indigenous families and communities to retain shared responsibility for the upbringing, education and well-being of their children.

[30]                                 As such, it would be possible for a government to breach the FNIM Act. However, that did not occur here.

[31]                                 First, there was no evidence adduced of any conflict between the PHO and the well-being of any Indigenous child or groups of children. Nor was there evidence that any children present at the rally were Indigenous, though perhaps one could argue that the PHO disincentivized attendance as that clearly was its intent. There was no evidence of any conflict between any particular family’s or community’s wishes and the PHO. It is not enough for Ms. Chipesia to declare that she attended the rally in the face of the PHO to fight for freedom for children. She refers in her materials to “my children” but adduced no evidence. Indeed, she never mentioned the FNIM Act at trial, nor was there any evidence of persecution or unequal treatment of any individual.

[32]                                 Second, Ms. Chipesia referred to no self-governing legislation that would conflict with the PHO. The FNIM Act does not appear to create stand-alone individual rights that might be infringed by the PHO. Rather, the Supreme Court concluded that:

[33]                                 Third, where the primary objects of the FNIM Act are to govern the provision of child and family services, I struggle to comprehend how the PHO could violate the FNIM Act when it had nothing to do with the provision of such services.

[34]                                 Finally, as with her arguments concerning the CLA, Ms. Chipesia’s notice of appeal does not refer to the FNIM Act, nor did she seek leave to amend it to include a ground concerning the FNIM Act. Nor did she file any notice of constitutional question pertaining to the FNIM Act.

[35]                                 Accordingly, Ms. Chipesia’s arguments concerning the FNIM Act must fail.

[36]                                 In Grandel v Saskatchewan, 2022 SKKB 209 [Grandel], the validity of public health orders imposing gathering restrictions was challenged. Konkin J. found that the orders restricted freedom of expression under the Charter, but that the restrictions were reasonable and demonstrably justifiable and thus saved by s. 1 of the Charter. No evidence or arguments made at trial or before me would differentiate this case from Grandel to persuade me to not follow it. Judicial comity precludes me from reconsidering those decided issues. Again, here there was no evidence adduced by Ms. Chipesia. As the AG observes, Grandel featured some 3,800 pages of epidemiological evidence, affidavits and cross-examinations of several expert witnesses – a formidable evidentiary record on an essentially identical legal issue. None of the exceptional circumstances described in R v Sullivan, 2022 SCC 19, 413 CCC (3d) 447, exist here.

[37]                                 The appeal of Grandel was argued recently, with the Court of Appeal reserving decision. In the circumstances, judicial comity requires that I follow Grandel, though I would do so in any event.

[38]                                 The issue of validity of The Disease Control Regulations and valid delegation leading to the issuance of the PHO were canvassed in detail in the recent decision of Megaw J. in R v Friesen, 2024 SKKB 20 [Friesen]. Friesen addressed numerous appeals from convictions under various public health orders. Many of the appellants were defendants convicted by Agnew P.C.J. in the Trial Judgment. The issues raised are substantially identical to those addressed in Wong, the companion decision of Agnew P.C.J. that he adopted in the Trial Judgment.

[39]                                 The AG filed correspondence asking whether I wished to receive supplementary submissions regarding Friesen. Had the questions answered in Friesen been raised by Ms. Chipesia in her notice of appeal or submissions, I would have afforded the parties the opportunity to speak to Friesen. As they were not raised by her and are not in issue here, I do not consider that necessary.

[40]                                 Ms. Chipesia’s appeal of her sentence was restricted to asking that it be vacated in conjunction with overturning her conviction. As I dismiss her appeal concerning guilt, I need not address the sentence imposed.