00:00:00.000I actually would love to not have to talk about COVID.
00:00:11.460I would love if this didn't loom over our heads as much as it does.
00:00:15.440But this is still an issue that is continuing to rear itself.
00:00:19.660For example, I mentioned the court cases in Alberta that have had a bit more of a positive outcome.
00:00:25.900But next week, we have Tamara Leach and Chris Barber, two of the most prominent faces of the Freedom Convoy,
00:00:32.060going to a criminal trial in Ottawa that is scheduled for 16 days.
00:00:36.500But because there are a couple of breaks in there, it's going to go for the better part of a month.
00:00:41.340And we also have, as always, the possibility that these things that were only ever suspended on the restriction front will be reintroduced.
00:00:49.800But let's talk about some of the better news this week.
00:00:52.700Sarah Miller is a lawyer who has dealt with many civil liberties cases from Alberta.
00:00:58.200And she is with JSS Barristers and returns to the show in just a moment's time here.
00:01:03.580Because Sarah is someone who has taken up these cases.
00:01:07.360Now, she's not involved in the Whistle Stop case.
00:01:10.580And she's also not involved in any of the cases that are affected by this decision that I alluded to at the beginning.
00:01:18.920And this is the decision that is going to result in the returning of fines and the overturning of convictions.
00:01:26.840But I still think she has a solid analysis on this.
00:01:30.420And again, I have said time and time again, I'm happy to move on from this stuff when they do.
00:01:35.220So if the other side stops talking about the bringing back masks and the other side stops talking about continued prosecutions,
00:01:42.600then I will stop talking about all of the stuff that has been affected by this and all of that.
00:01:49.580So Sarah Miller, good to have you on the show again.
00:02:12.760Yeah, so Ingram is the case that was recently decided in Alberta that found the CMOH orders were ultra-virus or inconsistent with the enabling legislation.
00:02:26.800So the Public Health Act in Alberta is the act that empowers, at the time, Dr. Henshaw to make a CMOH order,
00:02:33.860which restricted us and who we could interact with, how we could interact with them, right?
00:02:41.160And Ingram is the case that said those orders that were made during the pandemic were not made appropriately.
00:02:49.600And so therefore are essentially ultra-virus the act.
00:02:55.660And so that's why everybody was excited, because it sounds positive.
00:03:00.660If you're anti-COVID lockdown restrictions, it sounds positive when I summarize it that way.
00:03:06.880But it sounds like there's a but there.
00:03:10.520So my interpretation of this case would say I would not interpret it as to be really moving the needle very much, generally.
00:03:23.660And if anything, the needle has been moved in the direction of strengthening lockdown.
00:03:31.380So to really understand why that is, you have to look at the case that Ingram cites, which is CM.
00:03:39.340And that case is an Alberta case that came out in the fall of 2022.
00:03:43.880And the applicants in that case wanted masks.
00:03:46.660So you were just talking about how people want masks to come back.
00:03:49.420Well, the applicants in CM wanted masks, wanted mask mandates.
00:03:53.740They were quite upset that the mask mandates had been removed.
00:03:56.820And so they applied to the court regarding that masking mandate and said, we want those back.
00:04:04.020And the court looked at the information in front of it and the evidence before and said, yeah, okay, you're right.
00:04:09.440The order itself that removed the masking mandate was a public policy decision, not a health decision.
00:04:17.280And so therefore is outside of the act, the Public Health Act.
00:04:21.700So he found in favor, Justice Dunlop at the time, found in favor of the pro-masking group.
00:04:28.400Okay, so then we get Ingram and Ingram is a lot of individuals who are concerned about the restrictions and making an application to the court to say, hey, we don't like these restrictions.
00:04:40.800And the judge in Ingram says, great, I'm going to look at CM.
00:04:45.460I'm going to look at the evidence before me from Dr. Hinshaw's to how these orders were coming about.
00:04:50.760And the judge finds that there's too much interference from cabinet or elected officials and their public policy decisions on a health mandate.
00:05:04.340So what the result of this is, is that now the CMOH, the person in charge who's authorized under the Public Health Act to make lockdown measures, doesn't have to listen to our public officials.
00:05:17.940So we elect public officials, hopefully, to represent us and represent our interests.
00:05:22.960If we elect somebody in Alberta, right, Premier Smith has been elected.
00:05:27.640And if the majority of Albertans want Premier Smith in power, that also probably means that they want some of her public policy decisions.
00:05:35.980Not, obviously not everything, but some, at least some.
00:05:39.640And now if there's another pandemic, the CMOH does not have to listen to cabinet, does not have to do an iterative process with them.
00:05:46.680And in fact, if the CMOH does take into those public policy decisions or interests, that will be found to be Alta Ryer's Act.
00:05:56.280So it vests a ton of power with our medical officer and essentially tells them they do not have to worry about anything else except their health priorities.
00:06:05.680It removes a balanced approach, I would say, in making CMOH in the future.
00:06:14.880Yeah, I mean, that's a very, it's a very sobering analysis.
00:06:18.160Because on one hand, we can agree with the outcome, but as you're noting there, be very worried about the precedent that it will set.
00:06:25.220And I mean, just as an allegation, well, I guess it's not a similar case, but it reminds me of it for a reason I'll make clear in a moment.
00:06:32.360And back in 2022 or whenever it was, when there was the conservative leadership race and Jim Karahalios was running and he was disqualified by the party and he took the conservative party to court.
00:06:45.420And the judge said, yeah, you know, the party didn't follow its process to disqualify you and we've overturned it.
00:06:51.000And then the next day the party says, OK, great, now we'll follow the proper process and disqualify you.
00:06:55.240So it basically establishes the way to do this in a way that will be a bit more ironclad.
00:07:01.140And I am very aware of the fact that this was not a case that was decided based on any constitutional implications or any freedom of speech, freedom of movement, freedom of association.
00:07:12.820And on those issues, am I to understand that not a single court decision has really established that lockdowns and restrictions are not saved by Section 1 of the Charter, the reasonable limits part?
00:07:26.360Yeah, so across the country, you know, we have decisions on BC, Manitoba, Alberta included, Ontario.
00:07:32.860All of the courts have essentially found, yes, there might be Section 2 violations, all saved by Section 1.
00:07:40.320And including Ingram in the sense of in the there was arguments in the alternative to the public health analysis I just gave.
00:07:49.760And the court provided, you know, half of its decision is in obiter as in the alternative.
00:07:56.360Let's talk about the constitutional issues.
00:07:58.240And the government, rightfully so, admitted that there was Section 2 violations and the case came down to Section 1.
00:08:06.560And the court said if if these orders were valid and implemented appropriately, they would have been saved by Section 1.
00:08:14.080So even though the court didn't have to go there, it decided to just to make a determination on Section 1.
00:08:47.060So as you noted, I'm not really involved in those.
00:08:50.200I'm just observing from outside like everyone else.
00:08:52.220But my understanding is that is the outcome of Ingram.
00:08:55.140So that would be from a constitutional perspective, you know, a pro-libertarian perspective, that would be the positives of Ingram, is that it did result in this uncertainty as to whether or not any of the CMOH orders were implemented appropriately, according to the decision in Ingram.
00:09:16.080And since the Crown is obviously not sure, it seems to me like they've decided to stay or withdraw all of the outstanding charges.
00:09:27.040I know we have coming up next week, the criminal trials of Tamara Leach and Chris Barber.
00:09:34.380That's going to be one that we're watching here.
00:09:36.080But on the civil liberties front, are there any particularly novel or unique cases that you're still keeping an eye on that you think could actually perhaps have a bit more hope?
00:09:45.300So I'm not aware of any outstanding right now.
00:09:50.280There may be some in some of the provinces that I don't track.
00:09:54.960I think that my own case, the Pawlowski matter that arose out of the Coutts border protest, is going to continue to be interesting.
00:10:12.240So Mr. Pawlowski has been convicted of mischief for speaking at the Coutts protest, not participating in the protest, but speaking there.
00:10:19.920And it engages some interesting constitutional rights, which tie into COVID in the sense that the Coutts protest was related to protesting lockdowns and that we anticipate will be the conviction will eventually be appealed and sentencing that's happening later in September.
00:10:43.620So I think that one will be interesting.
00:10:45.480I think the CM case that I noted earlier, the one where pro-masking groups had applied to the court, that is under appeal.
00:10:54.440So it'll be interesting to see if the court of appeal makes the same determination regarding the structure and how a CMOH order should be issued.
00:11:05.600But it will obviously be some time before that decision is released.
00:11:10.180Yeah. And I mean, obviously, certainly as a lawyer, you have to keep a level of hope alive.
00:11:16.620And I think as a Canadian, we all have to keep a level of hope alive.
00:11:19.180And I've heard some people say, oh, yes, and, you know, these things will go to the Supreme Court.
00:11:23.080And then I'm like, just read the interviews that the Chief Justice was doing about the Freedom Convoy.
00:11:27.640If you think that the Supreme Court is going into this without its mind made up in some way about this.
00:11:33.160And I think this is the big problem is that we've seen here is that once the jurisprudence, as we've seen, has basically established that government had the latitude to do this,
00:11:42.520it's very easy to see how that latitude expands and expands and expands.
00:11:47.040And all of a sudden, I mean, even something as draconian as the Emergencies Act becomes within the ambit of, oh, well, that's, you know, legislative purview and all that.
00:11:55.120That's the government. That's them, their responsibility.
00:11:57.680But when it's flipped and you have governments that are trying to do things to restrain its governments on those rare occasions,
00:12:04.700then all of a sudden the courts are reading so much in and saying, oh, no, no, no, we don't give you deference now.
00:12:09.640I have I have a lot of faith in our Court of Appeals and our Supreme Court in Canada.
00:12:15.440So I to the extent that any of these warrant going to the Supreme Court of Canada and some some simply do not.
00:12:21.940We have a very overburdened system and currently we don't have lockdowns in place.
00:12:26.520Right. So so there is a question of mootness that is, I think, legitimate and live as to whether or not these should take up very valuable Supreme Court of Canada time.
00:12:36.000But I do have a lot of faith in our our Court of Appeal and our Supreme Court.
00:12:42.480You know, I do think that those that make it to the Court of Appeal will have the law applied and interpreted correctly for the most part.
00:12:53.220And so whether that means that, you know, it's always going to land on the side of a more libertarian interpretation, maybe not.
00:13:01.460But as long as we uphold the rule of law, that's the important part.
00:13:04.340All right. Sarah Miller of JSS Barristers. Thanks so much for coming on.