Juno News - September 04, 2023


Alberta court rules against pandemic-related health orders (ft. Sarah Miller)

Mentioned
Sarah Miller Andrew Lawton Show Tamara Leach Chris Barber Coutts Smith JSS Barristers Jim Carahalios James Coates Chris Scott Tim Stevens Pawlowski Henshaw Hinshaw Dunlop
Justin Trudeau is losing young voters (ft. Sabrina Maddeaux) Tamara Lich and Chris Barber are on trial

Episode Stats


Length

13 minutes

Words per minute

166.23

Word count

2,209

Sentence count

130

Harmful content

Misogyny

1

sentences flagged


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

In this episode, we discuss the recent court ruling in the Whistle Stop case, the removal of a masking mandate from the Public Health Act in Alberta, and the potential return of masks to the Public Safety Act.

Transcript

Transcript generated with Whisper (turbo).
Misogyny classifications generated with MilaNLProc/bert-base-uncased-ear-misogyny .
Hosts, guests, and mentioned names generated with spaCy (en_core_web_sm), reconciled against Wikidata.
00:00:00.000 I actually would love to not have to talk about COVID.
00:00:11.460 I would love if this didn't loom over our heads as much as it does.
00:00:15.440 But this is still an issue that is continuing to rear itself.
00:00:19.660 For example, I mentioned the court cases in Alberta that have had a bit more of a positive outcome.
00:00:25.900 But next week, we have Tamara Leach and Chris Barber, two of the most prominent faces of the Freedom Convoy,
00:00:32.060 going to a criminal trial in Ottawa that is scheduled for 16 days.
00:00:36.500 But because there are a couple of breaks in there, it's going to go for the better part of a month.
00:00:41.340 And we also have, as always, the possibility that these things that were only ever suspended on the restriction front will be reintroduced.
00:00:49.800 But let's talk about some of the better news this week.
00:00:52.700 Sarah Miller is a lawyer who has dealt with many civil liberties cases from Alberta. 0.94
00:00:58.200 And she is with JSS Barristers and returns to the show in just a moment's time here.
00:01:03.580 Because Sarah is someone who has taken up these cases.
00:01:07.360 Now, she's not involved in the Whistle Stop case.
00:01:10.580 And she's also not involved in any of the cases that are affected by this decision that I alluded to at the beginning.
00:01:18.920 And this is the decision that is going to result in the returning of fines and the overturning of convictions.
00:01:26.840 But I still think she has a solid analysis on this.
00:01:30.420 And again, I have said time and time again, I'm happy to move on from this stuff when they do.
00:01:35.220 So if the other side stops talking about the bringing back masks and the other side stops talking about continued prosecutions,
00:01:42.600 then I will stop talking about all of the stuff that has been affected by this and all of that.
00:01:49.580 So Sarah Miller, good to have you on the show again.
00:01:51.520 Thanks so much for coming back.
00:01:53.660 Hi, Andrew. Good to see you.
00:01:54.880 So let's talk first off about this overturning decision.
00:01:59.040 Because when I saw the headline, it was like, oh, this is great.
00:02:01.160 You know, we've got some people in Alberta that are, you know, that may have just paid the fine to make it go away.
00:02:05.900 They're going to get a refund on it.
00:02:07.640 But there were a lot of cases I heard about that were unaffected by this.
00:02:11.040 So what is actually happening here?
00:02:12.760 Yeah, 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.
00:02:26.800 So the Public Health Act in Alberta is the act that empowers, at the time, Dr. Henshaw to make a CMOH order,
00:02:33.860 which restricted us and who we could interact with, how we could interact with them, right?
00:02:38.900 All of those gathering restrictions.
00:02:41.160 And Ingram is the case that said those orders that were made during the pandemic were not made appropriately.
00:02:49.600 And so therefore are essentially ultra-virus the act.
00:02:55.660 And so that's why everybody was excited, because it sounds positive.
00:03:00.660 If you're anti-COVID lockdown restrictions, it sounds positive when I summarize it that way.
00:03:06.880 But it sounds like there's a but there.
00:03:10.520 So my interpretation of this case would say I would not interpret it as to be really moving the needle very much, generally.
00:03:23.660 And if anything, the needle has been moved in the direction of strengthening lockdown.
00:03:31.380 So to really understand why that is, you have to look at the case that Ingram cites, which is CM.
00:03:39.340 And that case is an Alberta case that came out in the fall of 2022.
00:03:43.880 And the applicants in that case wanted masks.
00:03:46.660 So you were just talking about how people want masks to come back.
00:03:49.420 Well, the applicants in CM wanted masks, wanted mask mandates.
00:03:53.740 They were quite upset that the mask mandates had been removed.
00:03:56.820 And so they applied to the court regarding that masking mandate and said, we want those back.
00:04:04.020 And the court looked at the information in front of it and the evidence before and said, yeah, okay, you're right.
00:04:09.440 The order itself that removed the masking mandate was a public policy decision, not a health decision.
00:04:17.280 And so therefore is outside of the act, the Public Health Act.
00:04:21.700 So he found in favor, Justice Dunlop at the time, found in favor of the pro-masking group.
00:04:28.400 Okay, 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.
00:04:40.800 And the judge in Ingram says, great, I'm going to look at CM.
00:04:45.460 I'm going to look at the evidence before me from Dr. Hinshaw's to how these orders were coming about.
00:04:50.760 And the judge finds that there's too much interference from cabinet or elected officials and their public policy decisions on a health mandate.
00:05:04.340 So 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.
00:05:17.940 So we elect public officials, hopefully, to represent us and represent our interests.
00:05:22.960 If we elect somebody in Alberta, right, Premier Smith has been elected.
00:05:27.640 And if the majority of Albertans want Premier Smith in power, that also probably means that they want some of her public policy decisions.
00:05:35.980 Not, obviously not everything, but some, at least some.
00:05:39.640 And 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.
00:05:46.680 And in fact, if the CMOH does take into those public policy decisions or interests, that will be found to be Alta Ryer's Act.
00:05:56.280 So 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.
00:06:05.680 It removes a balanced approach, I would say, in making CMOH in the future.
00:06:14.880 Yeah, I mean, that's a very, it's a very sobering analysis.
00:06:18.160 Because 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.
00:06:25.220 And 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.
00:06:32.360 And 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.
00:06:45.420 And the judge said, yeah, you know, the party didn't follow its process to disqualify you and we've overturned it.
00:06:51.000 And then the next day the party says, OK, great, now we'll follow the proper process and disqualify you.
00:06:55.240 So it basically establishes the way to do this in a way that will be a bit more ironclad.
00:07:01.140 And 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.
00:07:12.820 And 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?
00:07:26.360 Yeah, so across the country, you know, we have decisions on BC, Manitoba, Alberta included, Ontario.
00:07:32.860 All of the courts have essentially found, yes, there might be Section 2 violations, all saved by Section 1.
00:07:40.320 And including Ingram in the sense of in the there was arguments in the alternative to the public health analysis I just gave.
00:07:49.760 And the court provided, you know, half of its decision is in obiter as in the alternative.
00:07:56.360 Let's talk about the constitutional issues.
00:07:58.240 And the government, rightfully so, admitted that there was Section 2 violations and the case came down to Section 1.
00:08:06.560 And the court said if if these orders were valid and implemented appropriately, they would have been saved by Section 1.
00:08:14.080 So even though the court didn't have to go there, it decided to just to make a determination on Section 1.
00:08:22.520 So it's not helpful.
00:08:23.520 Looking at some of the developments this week, I mentioned Chris Scott with the Whistle Stop Cafe.
00:08:29.540 We also have James Coates of Grace Life Church, Fairview Baptist Church as well.
00:08:35.400 I believe that was Tim Stevens, if I recall correctly.
00:08:38.920 Are these cases and the fact that charges have been withdrawn here, is this flowing from Ingram or is there something else going on here?
00:08:46.840 Yeah.
00:08:47.060 So as you noted, I'm not really involved in those.
00:08:50.200 I'm just observing from outside like everyone else.
00:08:52.220 But my understanding is that is the outcome of Ingram.
00:08:55.140 So 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.
00:09:16.080 And since the Crown is obviously not sure, it seems to me like they've decided to stay or withdraw all of the outstanding charges.
00:09:27.040 I know we have coming up next week, the criminal trials of Tamara Leach and Chris Barber.
00:09:34.380 That's going to be one that we're watching here.
00:09:36.080 But 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?
00:09:45.300 So I'm not aware of any outstanding right now.
00:09:50.280 There may be some in some of the provinces that I don't track.
00:09:54.960 I think that my own case, the Pawlowski matter that arose out of the Coutts border protest, is going to continue to be interesting.
00:10:12.240 So Mr. Pawlowski has been convicted of mischief for speaking at the Coutts protest, not participating in the protest, but speaking there.
00:10:19.920 And 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.
00:10:43.620 So I think that one will be interesting.
00:10:45.480 I think the CM case that I noted earlier, the one where pro-masking groups had applied to the court, that is under appeal.
00:10:54.440 So 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.
00:11:05.600 But it will obviously be some time before that decision is released.
00:11:10.180 Yeah. And I mean, obviously, certainly as a lawyer, you have to keep a level of hope alive.
00:11:16.620 And I think as a Canadian, we all have to keep a level of hope alive.
00:11:19.180 And I've heard some people say, oh, yes, and, you know, these things will go to the Supreme Court.
00:11:23.080 And then I'm like, just read the interviews that the Chief Justice was doing about the Freedom Convoy.
00:11:27.640 If you think that the Supreme Court is going into this without its mind made up in some way about this.
00:11:33.160 And 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,
00:11:42.520 it's very easy to see how that latitude expands and expands and expands.
00:11:47.040 And 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.
00:11:55.120 That's the government. That's them, their responsibility.
00:11:57.680 But when it's flipped and you have governments that are trying to do things to restrain its governments on those rare occasions,
00:12:04.700 then all of a sudden the courts are reading so much in and saying, oh, no, no, no, we don't give you deference now.
00:12:09.640 I have I have a lot of faith in our Court of Appeals and our Supreme Court in Canada.
00:12:15.440 So I to the extent that any of these warrant going to the Supreme Court of Canada and some some simply do not.
00:12:21.940 We have a very overburdened system and currently we don't have lockdowns in place.
00:12:26.520 Right. 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.
00:12:36.000 But I do have a lot of faith in our our Court of Appeal and our Supreme Court.
00:12:42.480 You 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.
00:12:53.220 And so whether that means that, you know, it's always going to land on the side of a more libertarian interpretation, maybe not.
00:13:01.460 But as long as we uphold the rule of law, that's the important part.
00:13:04.340 All right. Sarah Miller of JSS Barristers. Thanks so much for coming on.
00:13:09.020 Thank you, Andrew.
00:13:09.560 Thanks for listening to The Andrew Lawton Show.
00:13:11.960 Support the program by donating to True North at www.tnc.news.