Chamberland, Morissette, Dutil
Appeal and application for leave to appeal de bene esse from a declaratory judgment of the Superior Court. Dismissed. Incidental appeal. Allowed.
The trial judge characterized the appellant’s application attacking most if not all the orders in council and ministerial orders adopted by the government to contain the COVID-19 pandemic as an application for judicial review and not an application for habeas corpus.
The situation, which amounts to a dismissal concerning a separate cause of action, gives rise to an appeal as of right. In addition, three reasons support the conclusion that the judgment under appeal is well founded.
First, there is a problem of scale, since the impugned acts were infinitely more vast in scope than a judgment restricting a person’s rights, even his or her liberty rights, whether lawfully or not. Second, the notion of “deprivation of liberty,” which is the historical basis for a habeas corpus proceeding, cannot be extended at will in reaction to inconveniences that living in society imposes on everyone. Specifically, to constitute a violation of freedom of movement, the notion would require more than nearly all of the health-based restrictions at issue in this case. Leaving aside any public health issue, the person must be substantially deprived of this freedom, must not be able to move around or go where he or she wants at the time he or she chooses, must be unlawfully confined or detained against his or her will, or pre-existing, legally imposed conditions of detention must have worsened to such a degree that the person’s residual freedom has been considerably reduced. Third, the appellant is not seeking an order for release or an order to terminate his conditions of detention, as the respondents correctly note. The conclusions of the application indicate that this is not a habeas corpus matter. Finally, because the appellant does not wish to proceed by way of judicial review, both the appeal and the application should be dismissed in their entirety.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca