To Moot Or Not To Moot

“There Is No Circumstance In Which Unlawful Action Is Appropriate” William Ray

Citizens’ Alliance NS (CANS) was in Court this past Friday December 06^th to argue against the Mootness motion which the Respondents (Strang et al. / Attorney General NS – AGNS) had submitted in August of 2022 and then re-submitted in October of this year. 

Mootness is the concept that some thing (incident or action) that was relevant at a given point in time is no longer relevant because that point in time for that issue/reason has passed. Most court cases against the pandemic lockdowns, restrictions and mandates across the country have been shut down due to Mootness.

The AGNS’ general argument (in the case of this Judicial Review) is that since the October 04, 2021 public health order which mandated the proof of vaccination was no longer in effect (in its entirety) as of May 23 2023, the NS Government therefore says the issues which CANS brought forward are no longer relevant, namely:

• The illegality of the Public Health Orders from the very start (Prima Facie) 
• The CMOH acting outside of his legislated authority from the start (Ultra Vires)
• The known-from-the-start inefficacy and harms of the covid-19 inoculations (Bad Faith)

Mootness is an absurd stance when it comes to this topic. It shows a disconnect from the reality of the harms of the last four years which remains shocking. William Ray (WR) Agent for CANS offered to the Court an eye-opening analogy of a bank robber “making a withdrawal using a firearm instead of a bank card”  who, when apprehended after the crime, claims Mootness because said crime is now over: “Yeah, but I’m not doing it anymore!”. Let that percolate for a minute.

The day opened by addressing any issues with the filings before getting into the meat of it. Right away, the Respondents asked for both affidavits which CANS had put forward to be struck or partially struck. 

Dr Chris Milburn’s affidavit was struck in almost its entirety due to the Respondents and the Court not having an ink-signature hard copy of the filing even though all parties had had the digital files for a fortnight (the hard copies were stuck in postal transit). There were three exhibits in Dr. Milburn’s affidavit one of which was a Nova Scotia government document : A Guide to the Health Protection Act and Regulations 2005 and this was the only exhibit allowed to remain. This guide states “that there is no ability to implement mandatory immunization in Nova Scotia even in a public health emergency” under the section of “Public Health Emergency” in the document .

The Guide also provides clear details on the administration of the Health Protection Act (HPA). The Respondents raised concerns that there is nothing provided by CANS to verify that the clearly government-produced document was in fact a government document so Justice Keith asked the Respondents’ own affiant Tara Walsh (TW) to verify and confirm that the Guide was in fact a government document – which she did. She also confirmed that the Minister of Health did not declare a Public Health Emergency as required by section 53 of the HPA. 

The other exhibits (the ones that were struck) were

1. the Health Protection Act itself which has judicial notice meaning it is automatically considered evidence as it is a statute of the NS Legislature and
2. the supply contract between Pfizer Canada and the Federal Government of Canada which states in section 5.5:  “Purchaser acknowledges that the Vaccine and materials related to the Vaccine, and their components and constituent materials are being rapidly developed due to the emergency circumstances of the COVID-19 pandemic and will continue to be studied after provision of the Vaccine to Purchaser under this Agreement. Purchaser further acknowledges that the long-term effects and efficacy of the Vaccine are not currently known and that there may be adverse effects of the Vaccine that are not currently known.”

Shelly Hipson’s affidavit was partially struck because:

1. she provided a useful one page write-up on each FOIPOP that stated the question, the date range of the data she requested and the key statics of what she was sent (numbers quoted from the official FOIPOP response); this was seen by the AGNS as opinion on the data instead of primarily meta-information “data that provides information about other data, but not the content of the data itself”. 
2. some of her FOIPOPs were too large to be printed four times over (the Court needs two copies of a filing for itself and each party gets a copy) so a reduced version was provided and secure cloud access to the full digital version was sent to all parties also a fortnight ago. According to online access logs, all parties accessed the affidavit on or shortly after it was filed on Nov 22. Despite this, both the Respondents and the Court stated that they did not have the full affidavit so any FOIPOPs for which Shelly had received data were struck and only the FOIPOPs for which there was no data available were allowed. The positive thing is that even the FOIPOPs without any data speaks volumes on the lack of evidence to support the mandates from the start.

CANS’ argument by Agent William Ray,  was crafted so as not to be dependent on the affidavits and we did get some key information from both affidavits in front of Justice Keith so the day continued.

Counsel for the Respondents then spoke briefly about the validity of the Judicial Review since the Orders and proof of vaccination mandate were no longer in effect. Justice Keith asked lots of important, pointed and clarifying questions of the Respondents focussing especially on how a declaration of mootness affected access to justice for the people of Nova Scotia. The Respondents answered by suggesting that individuals could submit a judicial review if they had issues with government-made decisions or go to their elected officials; a collective groan of disbelief came from the observers in the Court and likely online too. The judicial review process, while doable for an individual, can have prohibitive costs associated with it (filing fees, printing costs, often exorbitant lawyer fees, travel and time off for hearings). As for elected officials, they have repeatedly and pointedly turned a blind eye to the harm of the mandates and the suffering caused to their own constituents in favour of conforming to party politics and maintaining the public health narrative supported by the NS Government both legislative and bureaucratic; this comment from the Respondents shows yet another example of a complete lack of awareness of the reality of the last few years for Nova Scotians.

The affiant for the Respondents, Tara Walsh (TW) was up next. TW was the managing director for covid-19 communications during the duration of the declared “State of Emergency” in Nova Scotia and was there to confirm when the Public Health Orders (PHO) had started and then ended; a narrow and irrelevant set of information in the face of the illegality of the Orders from the start. TW was able to confirm that a s.53(2) “Public Health Emergency” was never declared. The PHO was issued under the authority of s.32 on which CANS bases our ultra vires (beyond the scope of authority which is the white collar way to say illegal). S. 32 authority is for Medical Officers to investigate and report on individual communicable disease cases and issue “orders” to persons who have a communicable disease not lock down every healthy Nova Scotian for two years. This meant that the actions listed under s.53 (2) of the HPA should never have come into play (actions such as a voluntary immunization program which was as far from voluntary as one could get). She also confirmed that she was not responsible for the content which she was told to communicate and (I might suggest) which she communicated with no thought to the legality or veracity of the information; she is the modern day equivalent of “I was just following orders”. 

“ It is difficult to get a man to understand something when his salary depends on his not understanding it.”- Upton Sinclair 

Another interesting item to note is that TW interpreted the language around the proof of vaccination to be the law because that is what the intention of the language was even though no law had been made only Orders issued by the CMOH who does not have the ability or power to make law; note however that Bill 174 at first reading stage is attempting to give those exact powers to the CMOH – this would mean that “the Chief Medical Officer becomes an officer of the House of Assembly with similar protections as the Chief Electoral Officer has under the Elections Act” and can choose to call another pandemic under any laws that he would then have the power to make. This, it would seem, could be an attempt to make “legal” what had been previously done ultra vires.

After a break for lunch, William Ray (WR) for CANS delivered his argument. The main points in WR’s argument spoke directly to illegality, ultra vires and bad faith. There were many case law references provided (53 in total) which supported a decision against mootness being declared and which WR delivered in a clear, firm and no-nonsense manner – with the occasional insertion of humour. An adjudication, which is “a formal judgement on a disputed matter”¹, is the desired outcome: 

“The adjudication would cause the administrator [the CMOH] and his antecedents to act within the Law which should at all times restrain them. There is no future circumstance that could arise or any set of material facts that would give the administrator or any of his antecedents just cause to act unlawfully”

“The Respondent says that a breach of the Law is moot if it happened in the past. If this matter is not adjudicated this will be accepted as the new Law of Nova Scotia”. This was also pleaded by the CCLA in AGNS v. Freedom Nova Scotia et al and CCLA; they argued that the injunction, issued by the judge, had the effect of creating new law and gave powers to the Attorney General which that position never had. In the protocol to the October 4th iteration of the public health order it claims that “proof of vaccination requirement is the law in Nova Scotia under the Health Protection Act Order issued by the Chief Medical Officer of Health Oct 4th imbedded protocol”

The protocol also threatens massive financial penalties and the literal closure of our organization dedicated to fighting covid restrictions…..if we refused to comply with covid restrictions…

‘If necessary, enforcement action could include fines of $2,422.50 per individual or $11,622.50 per corporation. It could include closure of the business or organization hosting the event or activity until they comply”

WR then put the question to the Court that if the Order is indeed moot then why does the Crown continue its prosecution of Summary Offense Tickets under an order by the CMOH that ceased to exist, by the statement of the respondent, entirely in May 2023?

The statement was made to show that a Live Controversy continues to exist. A case is Moot when no amount of legal proceedings on the case will change its outcome and therefore it is irrelevant (no Live Controversy). To apply the Respondents’ logic to this case: no matter how blatantly it can be shown that illegality, ultra vires and prior-knowledge bad faith drove the Respondents’ response to Covid-19, it’s still moot because it’s not happening anymore;  oh and in this case, let’s keep the legislation we broke in place in case we need to gaslight the public again. 

Without this Judicial Review there will be no proper investigation into what happened during those two years of our lives. CANS asserts that without adjudication, the same connection and risk exist in this matter since the CMOH or an antecedent could very likely act in the same manner in the future and predictably breach the personal and corporate rights of Nova Scotians (again). The unreasonable misapplication of the administrators home statute would potentially affect private and corporate rights in the future under that same statute and that makes it a Live Controversy.

The day ended shortly after 3:00 with Justice Keith reserving his decision until a later date. While the day started off with a seeming loss, it quickly turned around to feeling like a very positive day with some very well-articulated arguments. We have worked our hardest and tried our best to show the Court that before the proof of vaccination mandate, before the declared “State of Emergency”, even before the very first Covid-19 press conference with public health measure dictates on March 06 2020, the Respondents knew they were acting outside their legislation and knew that the so called vaccines were neither effective nor safe. ², ³

It is hoped that we don’t have to wait too long to find out whether the Judicial Review halts at Mootness or whether it finally continues on to the actual Review.

1. Oxford Dictionary ↩︎
2. FOIPOP #: 2022-00626-HEA Exhibit 10 of Shelly Hipson’s affidavit ↩︎
3. FOIPOP #: 2022-01349-HEA Exhibit 11 of Shelly Hipson’s affidavit ↩︎