Court of Appeal upholds Queen’s Bench decision in flag debate

City to still pay $6,000 to PARLA, court rules, finding organization was ‘stonewalled’ until it was no longer possible to fly the flag; PARLA’s pleas for judicial declaration that rights were violated dismissed

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

The city will still have to pay $6,000 in costs to the Prince Albert Right to Life Association (PARLA), but there won’t be a court declaration regarding whether the organization’s rights were infringed upon, the Saskatchewan Court of Appeal ruled Monday.

The decision is the latest in a legal dispute that’s been unfolding for three years between the city and PARLA. The dispute came out of the city’s refusal to fly PARLA’s flag on the courtesy flagpole in 2017. The flag in question pictured a fully-developed cartoon fetus named Umberto the Unborn and the words “please let me live.”

Monday’s decision upholds a ruling made at the Court of Queen’s Bench in 2019. Both the City and PARLA appealed that decision, but for different reasons. Both appeals were dismissed.

The 2019 decision found that the city didn’t follow its own policy and failed to move forward fairly. It also found that doing an analysis of charter rights to determine whether the breach was a reasonable limit under the law was impossible due to the lack of intelligible or transparent reasons provided by the city in denying PARLA permission to fly their flag. The 2019 decision said the city mishandled PARLA’s application.

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 that 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 decision regarding their flag.

However, in 2018 the city voted to rescind the flag bylaw and end the practice of flying guest flags on the courtesy flag pole. That flag pole, the closest to City Hall in Memorial Square, has sat empty since. That move made PARLA’s application legally moot, as the typical order made when a court finds charter rights have been infringed upon would be to send the decision back to the original body — in this case the city — for a proper hearing.

With the bylaw no longer in place, it wouldn’t matter as the flag couldn’t fly anyway.

PARLA felt that since their rights had been infringed upon, the court ought to have made a declaration regardless.

The Court of Appeal disagreed.

“This was not a case that would settle a recurring point of law, thereby preventing further disputes,” wrote Justice Ottenbreit in Monday’s decision.

He continued that it was “also not a case that presented issues of broad public importance beyond the present litigants.”

Ottenbreit also agreed with the Queen’s Bench judge that the case is moot, as the original question before the court had seized to exist.

Meanwhile, the city’s appeal arguing that it shouldn’t be charged the costs in this case and arguing against the reasoning of the lower court, was also dismissed.

Like the lower court before it, the Court of Appeal placed much of the blame squarely on the city’s shoulders.

Ottenbreit agreed that the city’s decision was “neither the product of a transparent process, not was it supported by intelligible reasons and no reasons were articulated at all. In the circumstances, (the judge) would have no hesitation in finding that there as a denial of procedural fairness.”

He wrote that Queen’s Bench “found fault with the behaviour of the city both in its handling of PARLA”s application go fly its flag and its failure to provide intelligible or transparent reasons for its decision.”

 Ottenbreit agreed the city’s decision lacked procedural fairness.

“PARLA … was stonewalled by the city until it became impossible to fly the flag as had been done in past years,” he wrote.

“Members of the community are entitled to better treatment than this from public officials.”

The city’s lack of a clear decision or reasons behind one prevented the courts from “properly exercising judicial oversight over (the) city’s behaviour,” Ottenbreit ruled, adding that “public actions and decisions should not be this inscrutable.”

Mayor Greg Dionne declined to comment as he had not yet seen the decision.

In a press release, the Justice Centre for Constitutional Freedoms, which intervened on behalf of PARLA in the case, said they still believe it’s necessary for courts to stand up and do something when rights have been infringed upon by a government body.

 “Charter freedoms need to be defended or they will be lost,” said Marty Moore, Justice Centre staff lawyer, in a press release. “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.”

 “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.”