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Manitoba Chief Justice rules Public Health Officials shouldn't be "second guessed"

MANITOBA: The Justice Centre for Constitutional Freedoms is disappointed in the two concurrent decisions of Chief Justice Joyal of Manitoba Court of Queen’s Bench, upholding lockdown policies. The first Decision held that the authority given to Chief Provincial Public Health Officer Dr. Brent Roussin was constitutional. The second Decision held that the Manitoba Government’s lockdown restrictions were justified in their violations of the Charter- freedoms of conscience, religion, expression and peaceful assembly. Chief Justice Joyal also found that there had been no unconstitutional violations of the Charter rights to liberty, security of the person, and that there was no violation of equality rights on lockdowns that saw stores restricted to selling only goods the government deemed essential and churches closed for worship.

The hearings on these issues occurred earlier this spring.

During Covid, the Manitoba Legislature, comprised of the people’s democratically elected representatives, had been sidelined in favour of the authority of Dr. Roussin. The issued Orders were not considered, debated, amended, or studied by the legislature. There was no requirement that Dr. Roussin provide the legislature with reports on the Orders, or the science which supposedly supports them.

The Applicants filed expert reports authored by world-renowned Stanford Professor, Epidemiologist Dr. Jay Bhattacharya, former Manitoba Chief Public Health Officer Dr. Joel Kettner, and Infectious Disease specialist and Medical Microbiologist Dr. Thomas Warren. The materials before the Court were comprised of more than 2000 pages of peer-reviewed science and government data.

The onus was on the Manitoba Government to justify its restrictions on Charter rights and freedoms as being reasonable, necessary, and beneficial.

One of the crucial issues discussed in this trial was the operation and reliability of the Polymerase Chain Reaction (PCR) test that is used by governments across Canada, including the Manitoba Government, to diagnose Covid and measure its spread. Manitoba’s expert microbiologist, Dr. Jared Bullard, admitted that the positive PCR does not diagnose whether someone has Covid-19, but rather is able to determine that a patient has remnants of SARS-CoV-2 in their nose which may have been there for up to 100 days. He acknowledged that a positive case could be someone who has not been contagious with Covid-19 for three months.

The action contended that Manitoba, Dr. Brent Roussin as Chief Public Health Officer, and Dr. Jazz Atwal as the Acting Deputy Chief Public Health Officer, failed to consider the collateral social and health costs of locking down society. The Applicants contended that the Public Health Orders which restricted religious gatherings, and indoor and outdoor gatherings could not be justified by section 1 of the Charter.

At 292 of the decision by Chief Justice Joyal, he stated, “In the context of this deadly and unprecedented pandemic, I have determined that this is most certainly a case where a margin of appreciation can be afforded to those making decisions quickly and in real time for the benefit of the public good and safety.”

He added, “…determination of whether any limits on rights are constitutionally defensible is a determination that should be guided not only by the rigours of the existing legal tests, but as well, by a requisite judicial humility that comes from acknowledging that courts do not have the specialized expertise to casually second guess the decisions of public health officials…”

“We are disappointed in these decisions and in the unwavering deference accorded to public health officials,” stated Manitoba lawyer Allison Pejovic. “We are carefully reviewing the decisions and are considering an appeal.”

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