Western Standard - EXCLUSIVE： Calgary lawyer shares closing arguments for Judicial Review of COVID lockdowns

00:00:00.000 Hello, I'm Melanie Rizdin with the Western Standard. Joining me right now is lawyer Jeff

00:00:05.420 Rath, one of the lawyers that was involved in the Ingram versus the Alberta government as well as

00:00:13.380 the Chief Medical Officer of Health, Dr. Dina Hinshaw, a lawsuit that has been sort of ongoing

00:00:19.080 for over a year now and final arguments are in. So we are just going to get an update on those

00:00:26.420 final arguments that have been submitted by Mr. Rath. Jeff, thanks for joining us.

00:00:32.440 Always a pleasure, Melanie. Thanks for having me.

00:00:35.360 So these final arguments, typically with final arguments, they would be sort of done in person

00:00:41.900 in a courtroom, but with this particular situation, they were submitted in a written form.

00:00:48.280 Am I assuming that you have received the written arguments on the other side or defense?

00:00:54.920 no we haven't yet oh you haven't our uh our written final argument we'll receive theirs on the

00:01:03.400 10th of july and then we'll have two weeks to we'll have two weeks to respond or to reply so

00:01:08.920 that's where we're at uh in the proceedings uh right now so all of the arguments will be finalized

00:01:15.240 you know you know the argument will be finalized uh you know by roughly the 25th of july okay

00:01:21.960 so let's talk about uh first of all let's talk about let's set up the the the actual claim um

00:01:28.600 the lawsuit what uh uh there was a number of claimants involved with this um why don't you

00:01:34.840 give us a bit of a summary on uh on what this entailed sure well we're representing rebecca

00:01:40.520 ingram and of course ms ingram uh owned a business in calgary that was completely devastated by

00:01:48.680 deena hinshaw's order she owned a fitness facility um that was shut down uh you know by

00:01:55.720 order of dr hinshaw without anybody from alberta health ever determining that a single case of

00:02:02.200 covid had either been contracted or spread by ms ingram's business which is known as the gym

00:02:08.280 in calgary so from our perspective you know the closure of her business was arbitrary it was

00:02:14.120 contrary to law and uh both you know that order and a number of other orders that ms ingram was

00:02:20.760 complaining about you know if you recall the silly how many friends we could have orders

00:02:25.800 um you know our submission is the masking orders themselves are ridiculous because they're not for

00:02:31.400 a bona fide medical purpose on the face of the orders themselves they say you can work for a

00:02:36.600 medical mask a non-medical mask or face covering so in other words on the very face of the orders

00:02:43.560 themselves you know somebody could put a piece of mesh screen over their face um that would

00:02:49.160 completely comply um you know with these orders and we say that you know that for these orders to

00:02:54.680 be constitutional they can't be arbitrary they can't be capricious they can't be silly and our

00:03:00.680 submission is that on the face of the masking orders the masking orders themselves uh you know

00:03:05.480 were just downright silly so you know that's in part what we were arguing you know we're arguing

00:03:10.360 to the court i mean there's no porosity standard for the masks and i mean what we submitted in our

00:03:15.560 written argument was you know it's akin to uh bringing in an order ordering somebody to put

00:03:21.160 up a chain link fence to keep dust from blowing onto their neighbor's property the orders were

00:03:26.520 poorly drafted and were promulgated without any real medical necessity on the face of the orders

00:03:32.840 themselves. Now, you were working alongside with another lawyer, Leighton Gray, who was brought in

00:03:40.720 with the Justice Center for Constitutional Freedoms, and working together on this case to

00:03:47.720 support the claimants. Can you give me some of the main arguments? I know you've sort of mentioned

00:03:54.080 sort of an umbrella of what the case was about. What were some of the main arguments that you

00:04:00.700 guys had sure and to be clear we're representing um uh rebecca ingram and um my good friend

00:04:09.120 leighton gray was representing heights baptist church north side baptist church aaron blacklaws

00:04:14.700 and tori tanna so we were representing rebecca ingram the name plaintiff but um mr gray was

00:04:20.740 representing through the jccf a number of other named plaintiffs uh in in this case so from our

00:04:28.020 perspective we raised uh a number of arguments both constitutional and non-constitutional um one

00:04:35.020 of the things that caused us the most concern was that we found you know what through in the court

00:04:39.980 hearing through cross-examined from dina hinshaw that the the so-called chief medical officer of

00:04:45.700 health orders weren't even her orders you know she said the process was that she gave recommendations

00:04:51.540 to cabinet and then cabinet actually issued the orders so what we're saying is that you know that's

00:04:56.880 ultra vires the scope of of the act the other thing that we're saying is that under the structure of

00:05:03.040 the act that if you want to close businesses you can't do it by chief medical officer of health

00:05:09.280 order um you know you've got to involve a judge in the process um full compensation has to be paid

00:05:16.800 you know there's a number of processes set out in the public health act that were not followed with

00:05:21.520 regard to these orders and in that regard we say that the orders were all ultra vires the public

00:05:26.800 Health Act. The other thing that we were arguing was that unlike cases in other provinces and

00:05:33.100 unlike other provinces, Alberta is unique in that Alberta has its own Bill of Rights

00:05:40.900 that mirrors the Canadian, or not mirrors, that in essence replicates the Canadian Bill of Rights

00:05:48.120 as it pertains to provincial legislation and provincial actions. Other provinces have human

00:05:54.800 rights legislation but none of them have a bill of rights in the same manner that alberta has a

00:06:01.220 bill of rights so this is an issue that wasn't considered in gateway in manitoba and wasn't

00:06:06.460 considered in other cases that were argued in british columbia and of course what we say

00:06:11.160 with regard to the bill of rights is that any legislation that is inconsistent with the bill

00:06:17.580 of Rights is a nullity. And in fact, the Public Health Act itself says that the Public Health Act

00:06:27.200 is subordinate to the Bill of Rights and that the Bill of Rights is paramount over the Public

00:06:33.340 Health Act. So from our perspective, that causes a number of problems for the government of Alberta

00:06:38.680 because they've acknowledged that there were various violations or infringements of the

00:06:45.120 charter rights of the plaintiffs, which could then be saved by Section 1 of the charter.

00:06:54.180 But the problem for them is, or for the government is, that under the Bill of Rights, there is no

00:06:59.060 Section 1. The only way that a government, the government of Alberta, can violate a right under

00:07:05.440 the Alberta Bill of Rights is to actually pass legislation saying that the legislation will

00:07:11.680 operate notwithstanding the Bill of Rights so it's you know it has a notwithstanding provision in it

00:07:17.440 so there's a mechanism for the government to abrogate rights under the Bill of Rights but

00:07:22.240 they have to pass special legislation to do it and notwithstanding the fact that they passed

00:07:27.280 all kinds of COVID related legislation the government never took the step of declaring

00:07:34.800 public health act orders issued under the public health act to be to operate notwithstanding the

00:07:43.540 bill of rights so we say that that is fatal to the hinshaw orders and the hinshaw orders themselves

00:07:49.680 are therefore of no force in effect the other thing that we say in that regard is that the court

00:07:55.180 has an obligation under canadian constitutional law and we cited a case i believe called campbell

00:08:01.740 at the Ontario Court of Appeal where that court found that it was trite law that you're supposed

00:08:10.120 to decide matters in a non-constitutional manner rather than deciding them constitutionally which

00:08:18.020 means that the ultra-virus argument that we put forward as well as the arguments under the Bill

00:08:23.840 of Rights have to be considered in advance of the charter arguments and if the orders fall

00:08:30.440 on the basis of those non-constitutional submissions,

00:08:34.960 then the court doesn't even get into considering, you know,

00:08:38.580 charter violations and getting into the whole Section 1 analysis, right?

00:08:43.700 So from our perspective, we only get into Section 1

00:08:46.760 if those first two arguments don't succeed.

00:08:51.600 So we're going to be very interested, obviously,

00:08:53.340 in hearing what the court has to say in that regard.

00:08:56.240 Right.

00:08:56.380 And so during, I mean, this has been going on for over a year.

00:09:02.560 The proceedings have lasted quite long.

00:09:05.480 What stood out to you the most throughout this process?

00:09:12.200 Well, there are a number of things.

00:09:13.980 I think we've spoken about them before.

00:09:15.580 One of the things that really stood out to me is the lack of knowledge that the government

00:09:20.680 has in and around the effect of these orders on the citizens of Alberta it was really clear in

00:09:28.760 cross-examining Dina Hinshaw you know she knew that there were going to be very grave consequences

00:09:35.420 from these orders that could include people committing suicide business bankruptcies the

00:09:41.140 destruction of the economy of Alberta etc but nobody issuing these orders apparently had any

00:09:47.380 real interest in determining to what how many suicides were going to you know would occur how

00:09:52.520 many suicides did occur how many business bankruptcies would occur or did occur as a

00:09:58.320 result of these orders so to me there's just this really this real solid lack of even curiosity on

00:10:05.220 the part of government officials as to the lives that they were devastating in this province with

00:10:11.840 very, very controversial, you know, and I would say experimental public health measures

00:10:19.040 around which there's a huge scientific debate swirling as to whether or not, you know, the

00:10:25.940 COVID orders themselves killed more people in Alberta than COVID.

00:10:30.580 Certainly, you know, in certain age cohorts, if you're looking at people under the age

00:10:34.520 of 50, certainly there's a very strong argument to be made that the orders may have killed

00:10:40.520 more people than COVID. And the lack of curiosity around this issue to be is really, really

00:10:48.340 troubling. You know, another thing that came clear, and all of the witnesses admitted to it,

00:10:55.240 they were taking all of their advice and guidance from the so-called scientific advisory panel.

00:11:01.880 The scientific advisory panel had no trained psychologists or psychiatrists on the panel.

00:11:08.040 nobody was giving the government advice apparently with regard to the harm the psychological harm

00:11:16.160 being caused to citizens of this province by these intrusive orders telling people how many

00:11:22.120 friends they can have well locking people in their homes over christmas denying people the

00:11:27.520 ability to worship in church bankrupting businesses etc etc and you know no mechanisms

00:11:34.980 were put in place uh you know to make sure that you know these things didn't happen in fact we

00:11:40.900 had with evidence from one alberta government witness who actually stated that the government

00:11:45.940 intentionally structured the economic um support programs to not provide full support to businesses

00:11:55.620 so there was a very deliberate and bloody-minded decision made at the governmental level to impose

00:12:02.180 penalties or impose hardship on certain classes of businesses for the benefit of the public at large

00:12:11.600 or the alleged benefit of the public at large, while deliberately not fully compensating those

00:12:17.920 people on behalf of the public. And to my way of thinking, this is something that has to be

00:12:23.580 redressed on a going forward basis. Absolutely. And I think too, when you're discussing that

00:12:30.920 um that the government has to produce some sort of a burden of of proof or evidence that that

00:12:37.400 these measures were necessary when there has not been sufficient or or uh you know as you're

00:12:45.240 mentioning uh barely any um research or investigation into the outcome of the decisions

00:12:53.320 uh seems like uh an interesting part of that argument for sure well and it goes well beyond

00:12:58.840 that i mean that's where i think we get into you know the section one arguments i mean uh you know

00:13:04.120 we've got the government acknowledging that rights were infringed i think dr hinshaw even

00:13:08.920 acknowledged that she knew that you know that she was infringing the rights of citizens of this

00:13:13.720 province and you know under you know under cross-examination and one of the concerns that

00:13:19.160 you know we have obviously is that where rights are infringed and where the government is invoking

00:13:24.360 section one of the charter as a defense or as they are in this case and this is submitted in

00:13:30.440 our written argument there's an obligation on the part of the government to make sure that

00:13:35.160 the infringements are as little as possible so they had lots of other uh you know measures that

00:13:40.920 they could have implemented that wouldn't have caused as much harm as the measures that they did

00:13:46.360 but there's no real evidence before the court that any real cost benefit analysis was done of the

00:13:51.960 measures uh you know that they did apply and that there's no evidence whatsoever that any um

00:13:59.720 thought was given to what they could do other than what they did which from our perspective

00:14:06.920 you know fails the constitutional test under section one of the charter so with with regard

00:14:13.800 to your client miss ingram what is she seeking out of this and then kind of the second part of

00:14:19.720 that question would be how is the result going to impact the other people that were participating

00:14:26.600 in the in the proceedings um where we have the uh heights baptist church and uh some other

00:14:33.960 people just claimants this is a judicial review proceeding so we're not seeking damages at this

00:14:39.560 stage but obviously what ms ingram is seeking is declarations uh you know that the orders were

00:14:45.560 you know uh ultra vires the government of alberta because they offended the bill of rights

00:14:50.600 they were we were seeking declarations that the orders themselves um you know were ultra vires

00:14:56.040 the public health act itself um you know we're seeking uh declarations that the orders that were

00:15:02.520 issued um and that are at issue in these proceedings you know offended various sections

00:15:07.720 of the charter of rights and freedoms you know from the standpoint of having the court declare

00:15:12.520 all of these orders to either been unlawful under you know under the statute law of alberta or

00:15:19.080 alternatively under the charter of rights and freedoms of alberta so you know this was obviously

00:15:25.480 uh you know a test case it doesn't capture all of the orders that were issued by dr henshaw

00:15:31.400 because of other rulings in this case so you know obviously you know we'll be proceeding forward

00:15:37.640 whether it's by you know class action lawsuit with regard to the vaccine passport issue

00:15:43.960 or otherwise you know there are a number of orders that caused a lot of harm to people in this

00:15:49.480 province that were not captured in this you know in in this proceeding and that will remain live

00:15:57.480 before the courts so you know in essence you know this is the opening so i think in what's going to

00:16:04.520 be an ongoing or you know opening battle and what uh what you know i perceive will be an ongoing war

00:16:11.080 until such time as we're capable of electing somebody in this province that actually gives

00:16:16.840 a damn about the rights of the citizens of this province and comes up with uh comes up with a way

00:16:22.440 to fully compensate all of the people in this province that have been damaged by these hurtful

00:16:27.880 orders of dr hinshaw you know orders of cabinet in effect because dr hinshaw in fairness to her

00:16:34.120 repeatedly swore under oath that these were not her orders that these were orders that came from

00:16:38.920 cabinet and uh you know like uh sergeant schultz and hogan hero hogan's heroes you know she was

00:16:44.600 just following orders right so you know i guess that's you know that's what we're going to be

00:16:49.160 dealing with on a going forward basis now if this is successful for your client and the others

00:16:54.920 involved what kind of precedent will this set what what ramifications will that have for say others

00:17:01.240 who who suffered through uh lockdowns and losing their business and and things like that what do

00:17:07.480 you see coming well certainly i think it provides it's going to provide a huge amount of vindication

00:17:13.880 uh to those of us that have been you know of the view that uh you know that these orders were

00:17:18.760 improper throughout one of the live issues that you know that's remaining outstanding and we

00:17:23.400 well you know you know could well end up uh you know being an issue for the court of appeal if

00:17:28.520 if the court doesn't reconsider it is you know an issue in and around the the john that john

00:17:34.580 hopkins meta analysis that came out um you know that came out earlier this spring that basically

00:17:42.660 found that uh the you know non-pharmaceutical interventions of the types that were employed

00:17:49.100 by dr hinshaw actually caused more harm to society than good um you know we say that the court should

00:17:55.360 the full benefit of hindsight and you know in cross-examining witnesses in a case you know we

00:18:01.520 should be able to put anything to them you know to have them you know have a witness um you know

00:18:07.360 reconsider their position or admit that what they did was wrong uh we weren't able to put certain

00:18:12.960 pieces of evidence to the witness as a result of rulings of the learned trial justice and those

00:18:18.240 continue to be issues going forward i mean i think what we say say in our written argument you know

00:18:23.760 is that you know keeping up-to-date evidence as to the harms caused by the MPIs out of this proceeding

00:18:30.720 you know is artificial and the court should have the full benefit of hindsight in judging the

00:18:37.360 propriety of what these people did from the standpoint of both their competence and their

00:18:42.400 credibility before the court and we have Alberta Court of Appeal authority you know on that point

00:18:49.200 um you know that will become you know germane as we move forward i mean you know what we say is

00:18:54.640 you know this is akin to galileo challenging the fines of the roman catholic church

00:18:58.720 but he's a heretic for finding that the earth revolves around the sun rather than vice versa

00:19:06.560 and having galileo being prevented from bringing forward expert witnesses that agree with his

00:19:11.920 position on trial on the basis that the whole proceeding should be artificially limited to the

00:19:17.520 information that was available to the decision maker at the time you know the time the decision

00:19:24.240 was made you know to lock Galileo in his house for the rest of his life you know we think it's

00:19:29.280 a pretty you know we don't think that that's a way that the court should be proceeding with

00:19:33.280 regard to these matters and that the court should have the full benefit of hindsight

00:19:37.360 with regard to the most up-to-date scientific evidence as to the propriety of these matters

00:19:44.720 Now, for instance, that Hopkins study, being that that was released in the spring, were you able to bring that forward as evidence at that age or no?

00:19:59.760 to have put forward as evidence and we were repeatedly told by the court that the evidence

00:20:04.560 before the court was only going to be limited to evidence that was available to the decision

00:20:09.840 maker prior to the orders having been issued and you know and we say that that's contrary to

00:20:15.120 alberta law and contrary to authority from the alberta court of appeal um you know that's binding

00:20:21.120 you know on the court and um you know we've stated uh you know in our you know in our final argument

00:20:28.320 You know, that if the court doesn't reverse itself on this, you know, on the Hopkins study, you know, being available, that a mistrial may in fact be required on the constitutional issues, given the degree to which the standard practice of cross-examination has been departed from in this case.

00:20:48.100 so as you mentioned uh you are waiting it sounds like till about uh you know early to mid-july to

00:20:56.700 hear back from the defendants and then are you expecting to understand um how this is going to

00:21:04.180 be ruled on did you say by the end of july uh well it's well the case will be fully in the hands of

00:21:12.280 learned injustice uh you know before the end of july but you know obviously these are very complex

00:21:18.520 issues um i don't and i honestly don't envy madam justice romaine in having to deal with this case 0.56

00:21:25.240 um you know she could be anywhere from you know six to twelve you know like you know three to

00:21:29.960 six to twelve months and coming to a decision um uh with regard to this matter i would you know so

00:21:36.520 um you know you know i'll leave it at that i think at this stage i mean it's not

00:21:42.760 uh i gave up a long time ago guessing how long judges were to take to render decisions

00:21:47.480 especially in cases as complex as this one absolutely all right well thanks very much for

00:21:53.640 a bit of a breakdown as to your final arguments for the case and uh i you know obviously we'll

00:22:01.080 stay in touch with you and and when we have more information or perhaps we we get some information

00:22:07.880 from the defendant's side we can touch base again and and have a look at that and then obviously we

00:22:14.440 will await the ruling from the justice at the end of all of this all right well thank you very much

00:22:21.480 Melanie. It's always a pleasure having the ability to chat with you. So thank you. Thanks so much, Jeff.

Western Standard - June 22, 2022

EXCLUSIVE： Calgary lawyer shares closing arguments for Judicial Review of COVID lockdowns

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