City ordered to pay $6,000 after ‘mishandling’ application to fly pro-life flag in 2017

Prince Albert Right to Life Association awarded costs despite dismissal of application for judicial review of policy that no longer exists

Herald file photo. The Celebrate Life Flag is pictured prior to being run up the flagpole in May 2016.

The City of Prince Albert has been ordered to pay the Prince Albert Right to Life Association (PARLA) $6,000 despite the Court of Queen’s Bench dismissing PARLA’s application for judicial review of the City’s denial to fly their pro-life flag from the courtesy flagpole.

The judicial application dates back to 2017, when the city declined to fly PARLA’s flag, which depicted a cartoon fetus, named Umberto the Unborn, and the words “please let me live.”

In a written decision issued Friday afternoon, Justice G. V. Goebel ruled that “it is evident that the City did not follow its own policy or proceed in a procedurally fair manner. Further, I am unable to complete any reasonable analysis because of the lack of intelligible or transparent reasons.”

She wrote that the proceeding was brought as a result of the “mishandling” of the application to fly the flag on the courtesy flagpole in May 2017.

In April of that year, petitions circulated asking the city to reject the pro-life flag.

In early May of 2017, Mayor Greg Dionne said the association’s application was put on hold pending the group’s submission of a new, nationally-recognized flag. He said he’d be open to a different flag that doesn’t portray an image of a fully-develop fetus.

 “Once they come up with a new flag, that flag will fly,” he said.

He acknowledged that a new design wouldn’t be approved in time for the 2017 flag raising.

PARLA never received any communications from the city in response to its application to use the courtesy flagpole, instead reading about the decision in local media reports.

Under the flag policy at the time, the Director of Community Services reviewed applications to use the flagpole. The policy also said flags of organizations which may be considered controversial, contentious or divisive shall not be flown and that flags of commercial, political or religious organizations required city council approval.

In November of 2017, PARLA filed for judicial review of the city’s flag policy decision. In May 2018, the city ended the practice of allowing access to a courtesy flagpole.

“The City had a duty to follow its own prescribed procedure and to ensure general fairness … Here there is no doubt that the policy was not followed,” Goebel wrote.

“No intelligible response nor decision as communicated to the applicants … In the circumstances, I would have no hesitation in finding there was a denial of procedural fairness.”

Still, she wrote, PARLA’s application to the court is now moot, because the flag policy no longer exists.

“The ‘heart of the dispute disappeared when the City repealed its policy eliminating any future use of the flagpole by the applicants,” the decision said.

“The appropriate remedy would result in the matter being directed back to the City. Given that the policy no longer allows for public access to a courtesy flagpole … there remains no live controversy between the parties and the application is moot.”

Goebel did not rule on whether the city’s decision was reasonable or whether it violated Charter rights or could be trusted to conduct a proper charter analysis under its policy.

“The way that it was handled, between the city council and Prince Albert Right to Life, was very unjust and very unfair,” said Valerie Hettrick, president of the Saskatchewan Pro-Life Association. “Because of a few radical pro-abortionists having a meltdown over this little flag, they took us to task.”

Hettrick said the broader issue at play was the right to free speech. The decision reflects the idea that municipal governments have to serve the people, regardless of their own views on a given subject, she added.

“That (Goebel) awarded $6,000, which we really hadn’t asked for, is a sign to me that municipal governments need to be a little bit more careful on how they handle situations in their cities,” she said. “It’s just really a matter of sticking up for what we believe in, and we have every right to do so.”

The Justice Centre for Constitutional Freedoms sent out a press release late Friday praising the decision.

“The Court’s decision appropriately rebukes the City for treating free speech unfairly,” Justice Centre staff lawyer Marty Moore said in a press release.

Moore, along with Philip Fourie of Kirby Fourie Coertze in Prince Albert, acted as counsel for PARLA.

Calls to Dionne and to City Solicitor Mitchell Holash were not returned as of press time.

The city’s decision to repeal the courtesy flagpole policy was initially sparked by PARLA’s application for judicial review.

 “It’s sad that we had to do this, but as the keeper of the purse, I don’t think that we should be using taxpayer’s dollars to fight a case when we give it away to the community freely,” Dionne said in 2018.

“(The courtesy flagpole) was only used about 10 weeks, legitimately, of the year by other organizations, and we can still get them their advertising and what they require by doing a proclamation.”

with files from Amanda Short, Saskatoon StarPhoenix