Feb 17 Trial Update, Alberta lockdown challenge

Court began by dealing with the Applicant’s request to amend the pleadings following Justice Romaine’s decision not to allow the Alberta Government’s September 2021 health directives to be considered by the court.

Jeffrey Rath

In response to the Crown’s argument’s that consideration of the directives would impede the trial, lawyer Jeffrey Rath argued that there have been two lengthy adjournments, both requested by the Crown. The first was so that the crown could marshal evidence. But he said the Crown and Chief Medical Officer of Health Dr. Deena Hinshaw should already have had in their possession evidence supporting any Charter breaches prior to issuing any public health orders. As shown in the testimony earlier in the week of Scott Long, Acting Managing Director of the Alberta Emergency Management Agency (AEMA or the Agency) from October 2020 until May 2021, there was no document prepared by the government, particular to this pandemic, that dealt with public health orders and Charter infringements. The second adjournment, Mr. Rath said, in September 2021, was necessitated by Crown allegedly misleading the court about the non-availability of Dr. Hinshaw to testify. Clearly Dr. Hinshaw was available. So that adjournment was entirely unnecessary, the Applicant’s suggest, and these issue of admissibility of the September orders could have, and should have, been dealt with then. So it wasn’t reasonable for the Crown to complain now about the schedule, to have the September orders disqualified on the basis of timeliness.

Justice Romaine cautioned Rath to watch his use of language. She noted that he had accused the crown the crown of lying and misrepresentation. These have not been proven, she said.

Dr. Hinshaw

Dr. Hinshaw

Rath replied that these are his clients’ positions, and “they are what they are.” He went on to say that Hinshaw had misread the public health act to claim she has the right to quarantine healthy people, and to not allow unvaccinated citizens into certain businesses. The legislation, he said, clearly only applies to those identified with having a communicable illness. And added Mr. Rath, Dr. Hinshaw also turned businesses into agents of the government. He continued that if the September directives were not included, then his clients would have to file a completely new case because they need resolution on these issues, and this might not be the best use of the court’s time. In any event, Mr. Rath said they intend to question Hinshaw on the September directives because “it would be revealing as to the processes that the government goes through to issue these directives.” He concluded by saying the Crown is attempting to take advantage of a procedural adjournment they requested.

Respondent’s lawyer Nicholas Trofimuk countered by say that the Crown did want to proceed with the September hearing, but the Applicants did not want to go ahead without the testimony of Dr. Hinshaw, so the adjournment was “by mutual agreement.” In regard to the issue of prejudice, he cited several legal precedents relevant to the to the issue as brought up in the application under consideration.

Mr. Rath came back by noting that any issue of prejudice can be cured by an adjournment.

Justice Romaine

Justice Romaine

Justice Romaine asked Government lawyer Mr. Trofimuk how much time the Crown would require to gather evidence in support of the September directives. Mr. Trofimuk noted that the Appliicants would have to file a claim citing specific Charter breaches, and they would have to submit evidence. He noted that the 4th wave, September directives, was very different because vaccines were available as they weren’t in the previous waves. When the Justice asked how long he would estimate an adjournment was needed, Mr. Trofimuk claimed it would lengthy.

Mr. Rath countered that the Crown is overstating the amount of time needed for adjournment. There is lots of evidence available, some of it from other cases before Alberta courts. And Mr. Rath noted, the Crown should have all the evidence already because they are required by the Charter to have it before they issue the Orders to lock down society.

Justice Romaine adjourned court for one hour to consider her decision.

Once court resumed, Justice Romaine referred to her decision yesterday to not allow the September Orders to be included in evidence. In submissions made overnight by the lawyers regarding the current application to amend the pleadings, she said no new evidence had been provided. She restated she will provide written reasons, but for now she noted that the October application was abandoned by the Applicants and that the application filed before the present hearing, made no mention of September Orders being included. She said there would be significant prejudice to the respondents if these Orders were to be allowed. As well, to do so would be very disruptive to the schedule of the Court. Further, it was her belief that the present case could resolve issues arising from the September orders. Because of that, it could be that no further litigation would be necessary.

Dr. Bhattacharya

The Court then turned to scheduling issues and it was noted that Dr. Bhattacharya was not available for the next two days, for further follow up questioning by the lawyers for the Applicants. The doctor’s redirect was interrupted by the issues of admissibility of the September public health orders.

Justice Centre lawyer Leighton Grey stated that this was not how they had thought the issues would unfold, and so were not prepared to proceed with the cross-examination of Crown’s witnesses. Dr. Bhattacharya is available all next week, and since Monday is an Alberta holiday, he suggested they begin with the doctor on Tuesday morning.

Mr. Rath added if the court were to continue today, they would be at a disadvantage, not having heard government lawyer Nicholas Parker’s opening statement.

Mr. Parker said he was willing to go ahead with his opening statement any time, but that he understood the applicants’ position.

Justice Centre lawyer Leighton Grey

Justice Romaine noted that both sides seem to agree on an adjournment until next Tuesday. But, she observed, this means that the court will sit beyond the time scheduled for the trial. Now the court hearing will probably continue into April. In order to expedite matters in the coming week, all agreed to extend the trial hours from 9 AM to 5:30 PM, depending on the availability of clerks.

Court adjourned until 9 AM Tuesday, February 22, 2022.

The Applicants plan to prepare and file a new application that will deal specifically with the post September CMOH Orders. That application will be filed and served on the Government next week.  It is anticipated that the new application will be adjourned along with the rest of the case into the first or second week of April, at which time trial will be continued.

It is unlikely that there will be sufficient time to question all of the witnesses in three days next week, nor will there be time for the Court to hear final arguments. The Applicants will seek to have the new application heard concurrently with the present one.

Otherwise, a completely new trial would be required, involving many of the same witnesses. In that event, the law concerning these important legal issues would remain unsettled for at least another year, which is unacceptable to the Justice Centre.

There are hundreds of related cases making their way through the Alberta Courts right now, the outcomes of which entirely depend upon the Ingram decision. These include the prosecutions of Pastors James Coates and Timothy Stephens, both of whom are represented by the Justice Centre.