LEGISLATIVE CHANGES REQUIRED TO PROTECT THE RIGHTS AND FREEDOMS OF CITIZENS OF ALBERTA AS DISCUSSED AT THE NATIONAL CITIZENS’ INQUIRY, RED DEER, APRIL 28TH, 2023
I recently appeared at the National Citizen’s Inquiry. (NCI, Red Deer, April 28, 2023, Day 2) https://rumble.com/v2ly5as-jeffrey-rath-at-the-national-citizens-inquiry-nci-into-canadas-covid-19-res.html
This paper was drafted at the request of the Panel of the National Citizens’ Inquiry.
The subject of my testimony was the need for Premier Smith to immediately amend various Alberta Statutes to ensure that the Medical Dictatorship that we all suffered under during the COVID Public Health Mismanagement Crisis in Alberta is never allowed to happen again.
I hold Honors degrees in Political Science and Law from the University of Alberta and the University of London, London School of Economics and Political Science. I have practiced constitutional and administrative law for 32 years and have argued cases in most of the senior appellate courts of Canada including the Supreme Court of Canada.
I am deeply concerned that with regard to individual rights and freedoms, the courts need to be told by our legislatures that it is the people who govern through the legislatures, not the administrative state governing through the courts and judge made law.
In my testimony in Red Deer, I highlighted two Supreme Court of Canada cases The Vavilov Decision (https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do) and the Dore Decision (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7998/index.do) that need to be legislated out of existence.
In both cases, the Supreme Court of Canada has elevated the standard of review regarding the mythical “reasonable decision maker” to such a level that it is now virtually impossible for the citizen to prevail against an administrative decision maker or tribunal. This is because the Supreme Court requires lower courts in Canada to defer to the alleged “expertise” of bureaucrats or tribunals. Added to this stacked deck is the new tendency of senior appellate courts including the Supreme Court of Canada to require lower courts to take “judicial notice” of the findings of “expert” bureaucrats.
In Vavilov [2019] 4 SCC 793 para 231 The Supreme Court, quoting itself states:
Presumably, if Parliament entrusts a certain matter to a tribunal and not (initially at least) to the courts, it is because the tribunal enjoys some advantage that judges do not. For that reason alone, review of the decision of a tribunal should often be on a standard more deferential than correctness.
What I pointed out at the National Citizens’ Inquiry is that these concepts are “judge made law” based on the Supreme Court of Canada finding that legislatures “by implication” intended this deference or they wouldn’t have set these tribunals up or delegated such unlimited authority in the first place.
As such, as a matter of law, this implied deference can be done away with by clear and express legislative language.
A simple amendment to the Administrative Procedures and Jurisdiction Act RSA 200 Chapter A-3 would solve this problem.
I propose the following amendment:
Judicial Review or Appeals of Administrative Decisions
8. All Judicial Reviews of or Appeals from any administrative decision of a decision maker or an Administrative Tribunal shall be held as a hearing de novo to a single Justice of the Court of King’s Bench.
(a) the record in the court below may be relied upon by the Court and the parties but no findings of fact are binding on the reviewing Justice.
(b) no deference shall be accorded the party alleging a restriction of rights and all findings of the reviewing Justice shall be made on the standard of correctness with the party alleging a lawful restriction of rights having the burden of proof on a balance of probability that the decision subject to review or appeal was correct.
The reason for this suggestion is simple. It is time to roll back the degree to which public servants as members of the administrative state now operate with little or no judicial or legislative oversight and have demonstrated through COVID that they cannot be trusted with the power entrusted to them under the statute.
I would further propose that s. 66.1 of the Public Health Act RSA Chapter P-37, which prohibits legal action for damages suffered as a result of Public Health Orders, be abolished and replaced with a section that expressly confers liability on any member of government having been found to have exercised powers under that act negligently or maliciously.
The proposed amendment to the Public Health Act:
Public Health Act
S. 29 (1) This section and the powers conferred herein are strictly limited to Orders that apply to individuals known to be infected with a communicable disease that are knowingly spreading such disease in the community after they have been advised of their infection and upon evidence tendered to a Judge or Justice that the individual is knowingly spreading the disease to others.
S.29 (2) The powers conferred in this section shall only apply to the closure of a business or privately owned property or facility upon evidence tendered to a Judge or Justice that the business is involved in spreading a communicable disease due to unsafe or unhygienic practices beyond the normal scope of operation of such business or private endeavor. In no event shall the powers conferred in this section be applied to a church or a religious gathering.
S.29 (3) In no event shall the powers conferred in this section be utilized by the Chief Medical Officer of Health as if they were powers granted to Cabinet under the Alberta Emergency Management Act.
S. 66.1 REPEALED
S. 66.1 (REPLACEMENT) All decisions or Orders made under this Act shall be subject to review by a Justice of the Court of King’s Bench upon application by an affected party. In the event that The Court determines that the Order exceeded to power of the Chief Medical Officer of Health under this Act and that if a person or business suffered injury, death, or economic loss as a result, the Government of Alberta shall be liable to pay the legal costs of the affected party on a full indemnity basis and the affected party shall be entitled to a judgement for economic losses and monetary damages arising from the impugned Order as against the Government of Alberta. This section shall apply retroactively to January 1st, 2020 without any limitation under the Alberta Limitations Act being applied to any action brought hereunder.
Someone like Dr. Deena Hinshaw should not be able to escape liability for negligently issuing Public Health Orders under the Public Health Act nor should anyone in a position of public trust be able to make negligent public statements such as recommending that people engage in their own personal vaccine experiments by taking one of every vaccine product presently available without any concern for whether or not adequate safety studies exist or whether or not such reckless public health advice would lead to injury or death.
A further example of ridiculous public health advice was found in the October 25, 2022, Dr. Theresa Tam document entitled Mobilizing Public Health Action On Climate Change In Canada (Mobilizing Public Health Action on Climate Change in Canada) and its follow up April 17th, 2023, Perspectives on Climate Change and Public Health in Canada Document. (https://www.canada.ca/en/public-health/corporate/publications/chief-public-health-officer-reports-state-public-health-canada/state-public-health-canada-2022/what-we-heard-perspectives-climate-change.html) Both of these documents were tendered as exhibits to the National Citizens Inquiry Red Deer, Alberta
In my National Citizens Inquiry testimony, I mistakenly referred to these documents and Dr. Theresa Tam as “delusional”. I now realize having researched the issue more thoroughly that the correct term for a person referring to climate change as being caused by “capitalism”, “ableism” and “heteronormativity” is “psychotic” and not “delusional”. I unreservedly apologize for this error on my part.
The point however is that the current state of the law under Vavilov and Dore from the Supreme Court of Canada is that decision makers who are demonstrably psychotic can not be challenged based on their presumed “expertise”.
A future ruling (absent legislation) could look something like this:
A COURT SOMEWHERE IN CANADA
Citizen v. Tam
2024
Held: The appeal from the decision of Dr. Theresa Tam is dismissed
FACTS
Dr. Theresa Tam is an expert in public health.
Dr. Theresa Tam decided “without immediate and effective action, climate change poses catastrophic (public health) risks for present and future generations”.
Dr. Theresa Tam decided that “capitalism”, “ableism” and “heteronormativity” are root “causes of climate change”.
In the name of public health Dr. Tam has ordered all able bodied, heteronormative or capitalist persons and their employees to be confined to their residences to meet government ordered emissions targets.
JUDGEMENT
In applying the “precautionary principle” enunciated by the Honorable Chief Justice Paul Crampton in the Colvin v. AG Canada (airport hotel incarceration) case the government is expressly permitted by the Federal Court of Canada to affect the incarceration of Canadians for “public health purposes” for “reasonable” periods of time notwithstanding the Charter of Rights and Freedoms.
Dr. Tam is an expert in public health. I take judicial notice that Dr. Tam has said, with the concurring authority of the Honorable Chief Justice of the Supreme Court of Canada in the “Carbon Tax Reference” at the Supreme Court of Canada, that climate change is an existential threat to Canadians.
On this basis, I find that the Public Health Order to confine all able-bodied, heteronormative citizens who either own businesses or who are employed by privately owned enterprises to their homes, for six months, in order to meet emissions targets arbitrarily decreed to be “reasonable” by the World Health Organization and Public Health Agency of Canada as part of their public health mandate to eradicate capitalism in Canada to be appropriate.
The decision falls within a range of “reasonable” decisions that could be made by a “reasonable” decision maker imbued with “expertise” and unlimited, delegated power.
This decision falls within the range of “reasonable” decisions that could be made by a Canadian bureaucrat upon the pronouncement of a “public health climate change emergency”. Further, the test in R. v. Oakes regarding section 1 of the Charter does not apply as per the decision of the Supreme Court of Canada in Dore v. Barreau du Quebec. In applying Charter principles with a view towards the degree to which the decision falls within a reasonable range of such decisions it is not subject to reversal by this Court.
COSTS
On the issue of cost, the Court awards costs on a solicitor and own client basis jointly and severally against Citizen and Legal Counsel in their personal capacity for having the temerity to challenge governmental authority.
While on its face the above fictional ruling may appear absurd, however, this is an accurate synthesis of decisions that were made by Canadian Courts as upheld by Appellate Courts during the reign of COVID terror inflicted on the citizens of Canada by the Canadian Government of Justin Trudeau.
In order to ensure fairness and to ensure that the Courts should have the most recent information before it The Alberta Rules of Court should be amended to ensure that Judicial Notice is not permitted to be taken of anything other than the most basic uncontroverted facts. Judicial notice should be prohibited in cases of any assertion of scientific fact by a party disputed by the opposing party.
No Court should be permitted to take judicial notice of facts as complex as to whether a vaccine or public health measure is “safe and effective” or that climate change is man made, or whether any measure imposed by a government in Canada would have any effect on global climate change given the volume of CO2 increases annually by China and India.
If a Justice doesn’t feel up to the task of making a ruling on complex facts a trial should be permitted to proceed by Civil Jury.
Below is a proposed amendment to the Alberta Rules of Court:
JUDICIAL NOTICE
Rule 1.4
1.4 The Court shall not take Judicial Notice as a means of determining any fact in dispute between the parties, nor shall The Court be bound by findings of fact or Judicial Notice taken of any matter in any other Court including the Court of Appeal of Alberta or the Supreme Court of Canada. All factual matters in any proceeding are to be determined de novo on fresh evidence tendered by the parties.
1.4 (1) Upon application of a Party to a proceeding where a matter involves factual determinations that will impact on the rights of a party under the Canadian Bill of Rights, the Alberta Bill of Rights, or the Charter of Rights and Freedoms, The Court shall order that the hearing proceed as a Trial by Civil Jury.
CHARTER OF RIGHTS AND FREEDOMS
Throughout the COVID human rights crisis Canadian courts routinely rejected human rights challenges and applications for injunctions brought by citizens on the basis that rights under the Charter were limited in application. These findings included that Dore v. Barreau du Quebec obviated the need for a full R. v. Oakes analysis requiring the government to prove that the measure was “demonstrably justifiable”; infringed the right “as little as possible” to achieve the desired objective (Beaudoin et al. v. AGC et al); that the asserted infringed activity (like running a business) didn’t have Charter protection; or that rights like freedom of movement (mobility) were always subject to government regulation including incarceration. (Colvin et al v. AGC)
CANADIAN AND ALBERTA BILLS OF RIGHTS
In the case of Ingram et al v. AG Alberta the learned Justice Romaine as upheld by the Alberta Court of Appeal found that Property Rights under the Alberta Bill of Rights were the subject of the same limitations as found by the Supreme Court of Canada in the case of Authorson v. Canada. Specifically that property rights in Alberta are merely procedural and not substantive and can be overridden by a government bureaucrat exercising delegated legislated authority.
The finding in Authorson involved the Canadian Bill of Rights and was again based on the Supreme Court of Canada finding implied Parliamentary intention and as such can be over-ridden by specific statutory amendment.
CABINET CONFIDENTIALITY
One of the most glaring aspects of COVID litigation was the degree to which governments sought to shield themselves from their decisions being reviewed by the Court. In the Alberta context in the Ingram Case the Alberta Government successfully shielded Cabinet from having to disclose the options that were presented to them by Dr. Deena Hinshaw as being possible Public Health Act Orders that they could direct her to make.
In the federal context, the Trudeau government is still refusing to disclose contracts with Pfizer, Moderna, Johnson and Johnson and the manufacturer of AstraZeneca on the basis of cabinet privilege and non-disclosure clauses embedded in those contracts. Many people have good reason to believe that the Canadian COVID supply contracts contain clauses that expressly state that the manufacturers do not warrant the safety of their products because the products were rushed to market without adequate safety studies being conducted and that the government of Canada indemnifies the manufacturers and saves them harmless from any legal actions for killing or injuring Canadians. If this is true, it would provide evidence of the Government of Canada and Dr. Theresa Tam deliberately misrepresenting to the citizens of Canada that the vaccines being mandated were “safe and effective”.
PROPOSED AMENDMENT TO THE ALBERTA INTERPRETATION ACT
1. All statutes in Alberta including statutes of the Government of Canada must be interpreted in a manner consistent with the spirit and intention of both the Charter of Rights and Freedoms, The Canadian Bill of Rights the Alberta Bill of Rights. For greater clarity:
a. All property rights in Alberta under the Alberta Bill of Rights or the Canadian Bill of Rights are substantive and not procedural. Any statute or delegated statutory authority including the right to the economic proceeds of personal or corporate property may not be infringed absent proof beyond a reasonable doubt that the infringement serves an actual public benefit that can not be accomplished through less intrusive means and in every case require full compensation for economic losses, damages and compensation to be paid to the affected party;
b. The power of the Province of Alberta over Property and Civil Rights in Alberta under S. 92(13) of the Constitution Act 1867 is absolute and shall not be infringed by any statute of the Government of Canada including the Criminal Code of Canada except as set out below:
i. In the case of the Criminal Code of Canada firearms may only be the subject of prohibition or seizure in the case of a judicially ordered peace bond, mental health order or bail condition on evidence that the person in question is a threat to themselves or others;
ii. Upon conviction of a citizen for an offence under the Criminal Code of Canada involving violence, threats of violence, conspiracy to commit a violent act or any offence where the continued ownership of a firearm of the person may give rise to a concern that the person may use a firearm in the commission of an offence under the Criminal Code of Canada.
iii. All federal regulations purporting to regulate or license the possession or ownership of a firearm in Alberta shall be interpreted as being of no force and effect and shall not be enforced by any court of competent jurisdiction in the Province of Alberta.
2. Where a decision of an administrative decision maker exercising delegated legislated authority infringes on an asserted right of a citizen under the Charter of Rights and Freedoms the Canadian Bill of Rights or the Alberta Bill of Rights on a prima facie basis, upon application of a person for injunctive relief the Court shall require the decision maker to prove that the decision is the least intrusive means of fulfilling the government objective and that the decision was made to prevent the imminent destruction of the government or people of Alberta. Failing such evidence, the court shall always decide issues of irreparable harm and balance of convenience in favour of the person whose rights are alleged to have been infringed.
3. In no Judicial Review or Appeal of or from an administrative decision or tribunal where a right under the Charter of Rights and Freedoms or the Alberta Bill of Rights or the Canadian Bill of Rights is engaged, the Court shall not accord any weight to the alleged expertise of the decision maker or tribunal. The Court shall make its determination upon the evidence tendered at the hearing in the Court of King’s Bench with the administrative decision maker or tribunal bearing the onus of proof on a balance of probabilities on the standard of correctness that the decision was correct.
4. Where a Judicial Review or Appeal from an administrative decision or tribunal decision where rights under the Charter of Rights and Freedoms, The Canadian Bill of Rights or The Alberta Bill of Rights are at issue and the Judicial Review or Appeal is based on or implicates a decision of the Federal or Provincial Cabinet the Court shall order that the Privy Council Office or the Deputy Minister of the Executive Council immediately provide all relevant documents or records with the exception of the names of Cabinet Members and the positions they took on any decision or any records that are classified as “Secret” or higher from the perspective of national security.
CONCLUSION
These proposals will not solve every problem we have encountered in attempting to protect the rights of the citizens of Canada through government mismanagement of Public Health during the COVID Public Health Mismanagement Crisis.
These proposals would not prevent Cabinet from making the same decisions as were allegedly made by Deena Hinshaw through the Public Health Act under the Emergency Management Act or from invoking the “Notwithstanding Clause” of the Constitution Act 1982. What these changes would do is force a government to go on record and hold a vote in the Legislature or force the Premier to go on record so that citizens would know which of their elected representatives voted against their rights and allow citizens to take redress at the ballot box against those legislators that betrayed the sacred trust of a citizen’s most basic human rights.
These proposals should serve as a litmus test for the election of any legislator in Canada.
Any politician seeking legislative office that is not willing to implement these proposals to roll back the power of the administrative state does not deserve your vote.
Jeffrey R.W. Rath, B.A. (Hons.), LL.B. (Hons.)
Foothills, Alberta
May 5th, 2023