Western Standard - June 22, 2022


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

Mentioned
Jeff Rath Dina Hinshaw Leighton Gray John Hopkins
EXCLUSIVE： CTF Ontario director Jay Goldberg on Bill C-11. Sask universities drop COVID mask mandates, with one condition

Episode Stats


Length

22 minutes

Words per minute

164.21

Word count

3,695

Sentence count

43

Harmful content

Misogyny

1

sentences flagged

Toxicity

3

sentences flagged


Summary

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

Final arguments have been submitted in the Ingram v. Alberta Government Lawsuit. In this episode, we get an update on the final arguments submitted by the Alberta Government and Chief Medical Officer of Health, Dr. Dina Hinshaw.

Transcript

Transcript generated with Whisper (turbo).
Misogyny classifications generated with MilaNLProc/bert-base-uncased-ear-misogyny .
Toxicity classifications generated with s-nlp/roberta_toxicity_classifier .
Hosts, guests, and mentioned names generated with spaCy (en_core_web_sm), reconciled against Wikidata.
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 0.81
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 0.95
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 0.96
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.