In an effort to help non-lawyers understand the court process, and response to many emails inquiring about our lockdown challenges, the Justice Centre would like to answer some common questions.
Alberta Lockdown Challenge
No date has been set to hear the Charter challenge, but it is expected in 2021.
Going in, we knew, as experienced constitutional lawyers, that injunctions are extremely difficult to obtain, because the Government is not required to show or prove that the steps being taken for public health are justified. That said, it was decided to attempt to improve Christmas for many Albertans who were suffering under extreme social, financial and mental hardship under Covid restrictions and public health Orders that banned visitors to private homes, kept families locked out of nursing homes, shut down weddings and funerals for more than a handful of people, and forced masks on the majority of the population that do not have a medical or religious exemption.
The Court presumed that Public Health Orders are in the public interest. Often whether an injunction is granted depends entirely on the viewpoint of the Justice hearing the case as injunctions are highly discretionary. Injunctions are intended to provide a short-term solution before the full case is heard, so they don’t allow for a full examination of the legal (or scientific) issues being before the court. That combined with the presumption of the orders being valid law, which means the Crown did not have justify its actions, caused the injunction to not be successful. Having a “law” struck down before a full hearing is a high hurdle to overcome.
There is a three-part test for injunctions, the Justice Centre met the first part of the test, a serious issue to be tried, as well as the second test, presenting evidence to the Court that irreparable harm is being caused. The third test is called the balance of convenience, and on this test, we were not successful. The balance of convenience means the Judge looks at who is likely to suffer more if an injunction is granted and makes a values decision on that issue. The Justice Centre would have to show that more harm would be done by continued enforcement of CMOH Orders. In the view of the Justice presiding over this injunction, she decided the public could be more harmed if Chief Medical Officer Deena Hinshaw’s advice and opinion was ignored. No detailed evidence was required to be presented by the government to prove this.
The expert evidence presented by the Justice Centre in this hearing for an injunction was in affidavit form with exhibits, totaling more than 500 pages and included the affidavits of:
A respected, retired Alberta doctor and former surgeon
An expert report from a University Professor with a PhD in Global Health Research
An expert report from David Redman, former Executive Director of the Alberta Emergency Management Agency, retired Lieutenant Colonel, with over 25 years military experience, with vast experience in logistics and formulating plans to deal with a variety of emergencies, including pandemics.
In addition to these experts for the injunction, the larger Charter Challenge to be heard later in 2021 includes additional evidence from:
An Alberta doctor and Professor of Pathology and Laboratory Medicine
Dr. Jay Bhattacharya -Professor of Medicine at Stanford University and research associate at the National Bureau of Economics Research. He directs Stanford’s Center for Demography and Economics of Health and Aging and is Co-author of the Great Barrington Declaration.
Additional experts are pending. This legal action also includes challenging the validity and reliability of PCR tests.
Manitoba Lockdown Challenge
The Manitoba Lockdown challenge began with an initial hearing on February 9, 2021 in Winnipeg, on a challenge to the constitutionality of the Public Health Act delegating broad authority to the Chief Provincial Health Officer to make Public Health Orders.
A decision has not yet been issued by the Court on this hearing.
The second part of the legal challenge is the Charter Challenge which is scheduled for an eight-day hearing beginning April 19, 2021. This part of the lawsuit challenges Manitoba’s lockdown measures as unjustified violations of various Charter freedoms. This legal action also includes challenges the validity and reliability of PCR tests.
The Manitoba action contains an expert report for the Justice Centre authored by world-renowned Stanford Professor Dr. Bhattacharya and more than 2000 pages of peer-reviewed science and government data.
Additional expert reports are being prepared and will be filed in the weeks to come, and our deadline for filing is not until April 1.
BC Challenge to Provincial Health Orders
For the British Columbia challenge to provincial health orders in which we represent churches and individuals, the Justice Centre provided the Court with over 1000 pages of expert evidence, including sworn testimony from an experienced and credentialed Epidemiologist and former Chief Provincial Medical Officer of Health, as well as from an Infectious Disease Specialist. These reports were filed well in advance of the main hearing, and in fact were before the Court when it denied the BC government’s application for an injunction against our clients.
The Justice Centre must follow strict evidence rules for filing expert affidavits for the Court, and no evidence can be introduced once a hearing begins. There are always deadlines and timelines in litigation. Court dates are set by the Court, and the Justice Centre (and also the opposing party) do not choose the dates or how fast we can be heard in court. The Justice Centre carefully selects its experts with consideration for those the Court will view with deference and credibility.
The Justice Centre is reviewing the Court’s decision in B.C.
A Decade of Fighting for Freedom
The Justice Centre is entirely independent and committed to fighting for the freedoms of all Canadians. We are not associated with any other groups or organizations, cannot be influenced, and receive no government funding. Our lawyers and staff are deeply committed to fighting for the freedom of Canadians. With a 10-year history of fighting for the constitutional freedoms of Canadians, and many successes (see Concluded Cases, and Out of Court Victories), our entire team has very carefully targeted legal strategies taking into account how the court system works, to challenge these unconstitutional lockdowns.
Not all court cases are won at the lower court level. At times, the Justice Centre does and must appeal a decision to a higher court, such as the Appeal Court of the province, to achieve a successful removal of restrictions on Charter freedoms. This is expected and is part of the legal process. Court proceeds slowly, and some matters are complex and need to be heard at a higher level of Court.