Judicial Review Update – August

August 31, 2022 Yarmouth. It poured with rain on court day and driving was scary but our eagerness to get to our destination helped keep everyone focussed. We had a general idea of how the day was going to play out but were especially delighted to see the many supporters who came out to join the court session with us (it was a full courtroom!). There was great interest in the outcome of the day and many many people sent us messages of good luck and strength.

One of the first items to be addressed was the motion for Mootness which the Respondents had put forward in the hopes that it would be heard that day. Citizens’ Alliance and JM by his litigation guardian KM (CANS) had previously responded to the motion with a request to cross-examine the Respondents’ witness but had been informed that she would not be available. The Respondents suggested in their motion that CANS would have no need to cross-examine but the opportunity to question a high-level executive from the Department of Health is not one to be passed up. More on that to come at a later date.

Public Interest Standing (defined as a serious issue raised by a party with a direct or genuine interest and applicable where there is no reasonable and effective alternative for the issue to come before the court) was asserted by CANS. The Respondents suggested that their Mootness motion, if successful, rendered any assertion of Public Interest Standing irrelevant because the review would no longer be considered viable if it was declared moot. The main questions Justice Keith asked in response to the Respondents were around whether CANS was an incorporated entity and did it have the ability to bring suit into the court (both of which are correct); had standing been an issue, it would have been identified much earlier in the Judicial Review.

The Justice queried whether the principal ground for the Review is that the Orders and the protocols imposing the restrictions and Covid-vaccine mandates are ultra vires the HPA (this means that the Respondents acted outside of their jurisdiction and without proper authority), to which CANS’ counsel agreed. The second ground for the Review is that the Orders and protocols breach the Charter.

As part of the Motion for Directions, the Justice gave priority to mapping out a practical timeline for submission of and responding to motions as well as agreeing upon the next court date. The judge expressed concern around the length of time the Respondents have taken (and continue to take) to produce the record of evidence and materials used to justify the restrictions and Covid-vaccine mandates; CANS has yet to receive any part of this record which (according to the rules around time limitations) is due after 5 days of the initial filing of a Judicial Review (Nov 04, 2021 in this case) . Consequently the Respondents were ordered to produce the record by October 31, 2022 with the stipulation that anything omitted would have to be accompanied by a short explanation on why it is being omitted. This stipulation came about after CANS’ counsel expressed concern around the breadth and quality of the Record which the Respondents could limit using the April 2021 section 17 addition to the Health Protection Act allowing them to make any information they deemed so to be privileged.

All in all a very positive court session for CANS and we look forward in great anticipation to finally receiving the Respondents’ record at the end of October! 

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Judicial Review update: April

All motions were granted by the court; a much desired outcome for CANS and its members: “The Applicant, Citizens’ Alliance of Nova Scotia (CANS), comes before this court seeking to engage the Judiciary to perform a vital and rigorous ‘check’ among the ‘checks and balances’ integral to Canada’s constitutional democracy. The Applicant is asking the Judicial branch of government to take a critical look at decisions and actions taken by the Executive branch of government to determine if they are reasonable and lawful”

How have I been? Well…

How have I been? Well…
I suppose it starts with the Freedom Convoy in Ottawa. It was an emotional few weeks, and it culminated in a violent quelling of a peaceful protest, which was perfectly in line with the Canadian Charter of Rights and Freedoms Section 2(c) (the fundamental freedom of peaceful assembly). It was legal to participate in, and fund, such a gathering until the government decided to pass orders and measures which made it illegal.

Responses

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  1. Part 1 on Comment:
    Why was it not brought out that it would be totally unreasonable to permit the defense more time in gathering information. If the original mandate(s) were legitimate, then the defense should already have all the information required to make their case.
    If they do not already have the information, then forcing their mandates on the people should already be illegal and therefore stopped immediately.
    Why did the lawyer not call for and the judge not make the decision that all future C mandates be stopped until suitable documentation is provided demonstrating their worthiness or necessity (determined by an independent panel).
    (Cont)

    1. Part 2 of Comment:
      Cont. from above
      Why was it not brought out that it would be totally unreasonable to permit the defense more time in gathering information. If the original mandate(s) were legitimate, then the defense should already have all the information required to make their case.
      If they do not already have the information, then forcing their mandates on the people should already be illegal and therefore stopped immediately.
      Why did the lawyer not call for and the judge not make the decision that all future C mandates be stopped until suitable documentation is provided demonstrating their worthiness or necessity (determined by an independent panel).
      When you see costly time wasted in debating which mailing address should be used, how many weeks should be allowed for a response, lawyers and judge mumbling away while not even speaking into their mikes, and other useless time wasters, there needs to be a demand that lawyers should at the very least, show up prepared!