Feb 22 Trial Update, Alberta lockdown challenge

Court began at 9 AM with a continuation of Applicant lawyer Leighton Grey’s redirect of Applicant’s expert witness Dr. Jay Bhattacharya, pictured at right.

Mr. Grey referred to his redirect a week ago, which got hung up on the admissibility of a Johns’ Hopkins study. Justice Romaine eventually ruled the study inadmissible due to its date of publication, after evidence was submitted in this case.

Mr. Grey started to refer to a study referenced in the John Hopkins study that was actually dated back to the time period when evidence was allowed.

Respondent lawyer Nicholas Parker objected that this was not proper redirect and introducing new evidence. Mr. Grey responded that the John Hopkins study may not be relevant because it was retrospective, but Justice Romaine had stated that studies from the proper time frame would be relevant.

Justice Romaine asked if the studies Mr. Grey was referring to were referenced in Dr, Bhattacharya’s expert report. Grey said no, but are contemporaneous, including the Douglas Allan report, two other studies from June and July 2021. On that basis, Justice Romaine allowed Mr. Grey to continue, but said she will allow Parker to question Dr. Battacharya afterwards on these studies.

Mr. Parker said the new studies are not put in into evidence. Besides, he had only received them this morning. His objection is that putting in new studies in redirect is not appropriate.

Mr.Rath said he believed that it was appropriate because Mr.Parker had put new material before Dr. Bhattacharya and had been aggressive with that material in an attempt to discredit the witness. Justice Romaine agreed that in principle new studies should not be put in redirect, but would allow this now because of Mr.Parker’s line of questioning on Dr. Battacharya earlier.

Dr. Bhattacharya then described the Allan study, and stated that its conclusions were similar to the retracted study Mr. Parker had aggressively asked him about previously.

Mr. Parker objected again that this was an attempt to inject new evidence into the case about the effectiveness of NPIs. Justice Romaine again overruled and allowed limited examination on these studies.

Mr. Grey asked about the two studies other than the Allan study, and Dr. Bhattacharya replied that like the retracted study and the Allan study, they found no correlation between lockdowns and drops mortality due to the virus. They also all highlighted the unequal effects of the lockdowns. Poor people, he said, were hit harder because they were more likely to do work that could not be transferred to a work-at-home situation and cited evidence from Toronto on this.

Mr. Grey asked Dr. Bhattacharya about several aspects of the three reports, including the fact there was no correlation between lockdown orders and excess mortality; there was comparison of countries, and these seemed to find a correlation between comorbidities and mortality. The doctor said that there is “a big fight between those who believe that lockdowns work– and some of these may have had prior beliefs—and those who are looking at the outcomes and the real-world counterfactuals.” In his opinion, he sides with the people presenting evidence.

Mr. Grey asked Dr. Bhattacharya to clarify why he said that NPIs (non-pharmaceutical interventions like masks, shutdowns of business, school closures, social distancing, etc.) mostly impact the poor. Dr. Bhattacharya said it is known that NPIs in rich countries affect the economies of poor countries. He spoke about a UN report about starvation in the third world caused by NPIs in rich countries.

Mr. Grey asked if NPIs protect the most vulnerable? Dr. Bhattacharya that the most vulnerable were still disproportionately impacted despite shelter in place orders. The NPIs do collateral damage, he testified, and more of that damage is done to the most vulnerable. Mr. Grey asked if closing schools does anything to protect the most vulnerable. Dr. Bhattacharya said that when weighing comorbidities, age is the most relevant factor and that the elderly are at the most risk. Dr. Bhattacharya noted that obesity can also double the risk. He stated that health resources are finite and directing finances to low risk, takes away care from the most vulnerable.

Dr. Bhattacharya said that Covid spread despite the lockdowns because we don’t have the technology to stop a virus like Covid from spreading. He conceded that lockdowns can slow the spread, but they actually delay herd immunity and so prolong the pandemic. There was hope the vaccines would stop the spread, he noted, but it hasn’t happened.

Mr. Grey noted that in cross examination that a study was presented to the doctor that said there is no path to herd immunity except through vaccination. Dr. Bhattacharya said this is false and referred to a Zika infection where herd immunity was achieved without the creation of a vaccine.

Mr. Grey noted that government lawyer Nicholas Parker had stated no churches in Alberta were closed during the pandemic and asked if Dr. Bhattacharya had heard of Grace life Church. Dr. Bhattacharya answered that he had, and it was his understanding they were subjected to onerous restrictions and capacity limits that made worship impossible. (In fact, Grace Life church was seized by the Government and closed for many weeks).

Mr. Parker then objected this was not a proper line of questioning for redirect.

Mr. Parker says that applicants’ lawyers were misleading; that there were only capacity limits.

Mr. Grey says that he had not misled the court, Mr.Parker did. Mr. Grey spoke of the fence that went up around Grace Life and that the RCMP had occupied the building. “The angel Gabriel didn’t come down and close churches,” the Justice Centre lawyer said.

Mr. Parker asked that Grey retract his accusation.

Justice Romaine said Mr. Parker did not mislead the court, but that she was not going to compel Mr. Grey to retract, though broadly hinting that he should. He did not.

Mr. Grey went on to ask questions about pre-symptomatic and asymptomatic spread, and eventually about the speed of the spread of the different variants. Here Dr. Bhattacharya made reference to the Omicron variant, that this clearly, by the speed of its spread, that there was a difference in the speed of transmission.

Later Mr. Parker would try to make something of this mention of Omicron, asking where in his expert report had Dr. Bhattacharya referred to Omicron. Dr. Bhattacharya replied that clearly he couldn’t have referred to it in his report because it didn’t exist when he filed it. Dr. Bhattacharya said he simply referred to Omicron when he spoke about the differences in variants.

At this point, Mr. Grey objected to Mr. Parker’s behaviour, and said he disrespected the witness by giggling and guffawing when he replied.

Justice Romaine disagreed, that Mr. Parker hadn’t disrespected the witness, however court observers note she had her head down and was reading something, and could not have seen the behavior.

After the break court began with the cross examination of Dr. Kindrachuk, expert witness for the Respondents, pictured at left. As Dr. Kindrachuk’s qualifications as a microbiologist were being read out by Mr. Parker, lawyer Mr. Rath objected to his qualifications as an expert on NPIs. Mr. Parker said he should be qualified as a virologist with regard to matters referred to in his report, and on the disease Covid-19. Mr. Rath specifically objected that he is not an expert on masking, Covid and reproductivity. He said a degree in microbiology has more to do with laboratory work and not lockdowns and constitutionally protect rights.

Justice Romaine said the objections will have to be dealt with regard to weight. She examined the oral hearing orders and saw no objections to the witness’s qualifications. She allowed the witness to be qualified as an expert and said any objections will be dealt with later with regard to the weight of his evidence.

Mr. Rath began by asking Dr. Kindrachuk to clarify that his background was in biochemistry, that he was not a physician, nor an epidemiologist. Dr.Kindrachuk pointed out that he was for the last 13 years a virologist. Mr. Rath asked if he had done any work on NPIs with hamsters. Dr. Kindrachuk replied they had done no work on masking hamsters.

Mr. Rath then asked about Dr. Kindrachuk writing a paper about the Sars-covid2 virus occurring naturally, as opposed to being created in a lab. Dr. Kindrachuk acknowledged that he had. Mr. Rath then asked if this is a political position. Dr. Kindrachuk answered, since 2020, yes.

Mr. Rath asked if Dr. Kindrachuck had looked at the DNA sequence. Dr. Kindrachuk replied that this was an RNA virus and had no DNA.

They then went into a back and forth on the efficacy of masks, and on the aerosol and droplet transmission of the virus. Mr. Rath questioned the efficacy of cloth masks and their use by inexperienced non-medical persons. He asked if Dr. Kindrachuk was aware of the many studies that showed masks were ineffective and Dr. Kindrachuk replied he had seen studies on both sides of the issue. Mr. Rath asked, “So is your report one-sided then.” Dr. Kindrachuk said no, and he thought that job of providing the opposing viewpoint was the responsibility of the applicant’s witnesses. He went on to say that there were something like 200 studies a day being published on Covid, and this was more than any one person could keep up with.

Mr. Rath asked if Dr. Kindrachuk had looked at any Alberta data specifically for his expert report. Dr. Kindrachuk said he had looked at comorbidity data, but mostly looked at data from around Canada when considering the spread.

Mr. Rath then asked if Dr. Kindrachuk saw any relation between vaccination and high rate of hospitalization in young people. Dr. Kindrachuk then cautioned about making a distinction between correlation and causation. It was then that Mr.Rath asked about graphs from the Alberta Health website that were scrubbed. Had he seen them. Dr. Kindrachuk said he had, “but without some context, I can’t make a judgment.” He would need to see the data underlying the graphs, and any specific reports related to it.

Mr. Rath then moved on to questions about vaccines and reproductive health, making reference to the VAERS. Dr. Kindrachuk said that VAERS is unverified, and that he had seen reports of vaccine injuries that were actually car crashes. Mr. Rath countered by saying he had seen reports of car crash fatalities listed as Covid deaths.

After lunch, the court began with opening statements by Alberta Government lawyer Nicholas Parker. He reviewed the case to date. He made a reference to the applicants request for adjournment when Hinshaw could not appear in September. He noted a similarity between Dr. Bhattacharya’s expert report in Manitoba court case and this one in Alberta. He attacked Dr. Bhattacharya’s and Mr.Redmond’s credibility as experts, while praising the testimony of his own experts. Parker stated that many of the Charter claims were not supported and therefore need not be considered by the court.

He stated that ultimately, the case should be decided on legal matters, not on the effectiveness of NPIs. Mr.Parker then gave a lengthy summary of Dr. Gordon’s evidence on hospital utilization and postponement and rescheduling of surgeries. He noted several paragraph’s in Hinshaw’s testimony. And he extensively quoted Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal decision in the Covid case saying, essentially, here, use this, that’s all you need.

After this, respondent expert witness Dr. Nathan Zelyas appeared as an expert on the PCR tests. In establishing his qualifications, that Dr. Zelyas was a contractor with the government, and that he was part of a team that provided advice to AB Health on an ad hoc basis.

Applicant lawyer Leighton Grey then began the cross exam by confirming that Dr. Zelyas’ evidence was essentially a rebuttal to evidence given by Dr. Bhattacharya, and he proceeded to ask about the cycle threshold of the PCR tests, quoting Dr. Bhattacharya that if the threshold is too high, there would almost a 100% return for Covid infection.

Dr. Zelyas qualified his answer, saying it depends on purpose for the test. It is very sensitive, but if you reduce the sensitivity too much, you necessarily capture the data you are looking for. Grey pressed him on whether an increase in cycles would increase false positives. Dr. Zelyas said it depends on how to define false positives.

Mr. Grey said Dr. Bhattacharya had noted that jurisdictions in Canada were using a CT of 45. Dr. Zelyas said it depends on the PCR kit. Some manufacturers require 45 cycles, some 40. And that going up to 45 cycles was entirely appropriate to look infection. He agreed that of the many different kits in Alberta, most were in the high 30s to 45 CT range.

Mr. Grey stated that Dr. Bhattacharya had said that a 37 CT would provide over 90 % false positives, and that over 40 CT, there would be 100% false positives. Dr. Zelyas began to answer that there may be false positives among the results, when he was cut off by an alarm in the court house at 2:38 PM

On resume, Dr. Zelyas informed the court that a great deal of expertise was needed to interpret a Covid culture, so it’s not practical way to test.

Mr. Grey asked about Dr. Bullard numbers (from the Manitoba court case). If PCR tests were wrong in 56% of cases, with all the cost of imposing lockdowns, it didn’t seem like very effective science.

Mr. Grey then asked, given the unreliability of the PCR test, whether it was a good idea to quarantine everyone who tested positive, asymptomatic and symptomatic.

Dr. Zelyas said in his opinion, it was important to take into consideration the caveats of PCR tests.

The cross-exam was then turned over applicant co-counsel Mr. Rath.

Mr. Rath asked if Dr. Zelyas recalled when he was appointed to the provincial advisory group. Dr. Zelyas couldn’t recall the specific date, but said it was early on in the pandemic, sometime during the first wave. Rath asked if he was advising on NPIs and Dr. Zelyas affirmed that he was. Mr. Rath then wanted to know if Dr. Zelyas was aware of any cost-benefit analysis done prior to the issuance of orders, or reports on any of the potential lockdown harms like drug and alcohol abuse, the psychological effects of masking children, etc. Dr. Zelyas said he was not aware of any reports on these aspects. He said he did recall a discussion on the effects of masks, mostly in reference to skin conditions.

Court adjourned until 9:30 AM Wednesday, February 23, 2022.