Judicial Review update on February 07 Hearing

Tuesday February 07 in Halifax started off as a crisp, chilly morning; very suitable for a much needed clear-headed day at the Supreme Court of Nova Scotia. There was a small crowd of supporters and more who joined online as we settled into the room to wait for Judge Keith to start the hearing.

CANS had requested accommodation for members who chose not to wear face masks while inside the courthouse hallways and courtroom. This accommodation was honoured by the staff and most especially the sheriffs who were cordial and helpful throughout the morning and into the afternoon.

The only matter before Judge Keith was that of adding a nurse co-applicant to the review; the amendments that were made to the notice were not being challenged. The nurse (SM) was present in the court, having driven in from the Valley where she lives. During a regular week she drives to New Brunswick to work in her trained profession as a nurse because she is not allowed to work in her home province without proof of Covid-19 vaccination. This despite the desperate shortage of trained healthcare workers that we in Nova Scotia are currently experiencing and despite it being common knowledge, amongst even the most disconnected of us, that these “vaccines” do not stop the spread of the infection (many of us know jabbed friends and colleagues who have had Covid-19 multiple times). Go figure.

The court session started shortly after 10:00 AM and ended just before 1:00 with one break in between. Counsel for CANS clearly and passionately described the harm that the Chief Medical Officer’s re-stated health Orders had caused and continue to cause especially to our healthcare workers and to those involved or employed in what were deemed (but never defined) as “High risk settings”. She extolled the arbitrary and illogical nature of the mandates; the ever-moving target of the re-stated  Orders making the corresponding changes to the Judicial Review inevitable; the great harm to so many Nova Scotians from being affected by the unnecessary and ineffective restrictions. The Respondents’ counsel focussed on how process and timelines may be in question.

The judge did what judges must do: ask clarifying questions of both sides, consider the arguments that have been offered and apply legal tests to help arrive at a decision.

Mootness did come up but this was an agenda item to be addressed at a future hearing. Consider this analogy: harm and damage done with knowledge and intent cannot be mooted just as assault cannot be mooted simply because it stops. 

The judge wrapped up the day’s session and reserved his decision until next Friday (February 17 Please see correction below). Counsel for both sides have been asked to provide some further information to inform that decision.

It was a long court session and we were exhausted by the time it was over, we all left with a sense of unfinished business around the proceedings and the most we can expect from the process is that it will result in a fair, reasonable, logical, and ethically sound conclusion.

Update February 18, 2023: I must apologize for not sharing the fully accurate information: Justice Keith reserved decision and requested case law research and submissions from Counsel for both sides on a point of law concerning the Civil Procedure Rules governing Judicial Review, this was due on Feb 17. He granted a few days after that for Counsel to respond to each others’ submissions. He will then set a return date on which to render his decision (this date has not yet been set) and establish deadlines for the Applicants’ anticipated Record Motion, challenging the deficiency of the Record which the Government filed with the Court on October 31, 2022.