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CARPAY: Bad ruling against a church’s charter rights begs for an appeal

“Judge Shaigec has gone off the judicial rails, not regarding the facts, but in failing to apply a proper two-step Charter analysis.”

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The dismissal of the Charter freedoms of Pastor James Coates by Alberta Provincial Court Judge Robert Shaigec on June 7, 2021, is crying out to be appealed.

As any first-year law student can tell you, Charter claims are judged in two simple steps.

First, the court rules on whether a government action (law, policy, health order, arrest, charge, fine, prosecution, imprisonment etc.) violates one of more of the Charter freedoms to associate, assemble, worship, express oneself, travel, and move about freely without facing house arrest or prison. For the past 39 years the Charter has been part of Canada’s constitution, courts have ruled that charges, fines, tickets, arrests and prosecutions clearly qualify as “government action.” The moment that a citizen is charged with violating a federal, provincial or municipal law (whether the penalty is jail time or only a fine) is the moment when that citizen’s Charter rights and freedoms are impacted. The existence of a particular law, and being charged with violating that law, are one and the same.

Next, if the answer is ‘yes’ and some form of government action violates one or more Charter rights or freedoms even in a small way, the court must make a separate assessment as to whether the violation of that Charter freedom is “reasonable” and “demonstrably justified” with compelling evidence “in a free and democratic society.” At this second step of the process, the government is obligated to put forward medical and scientific evidence to try to justify its public health orders, or to justify whatever other law, policy, ticket, fine, arrest or prosecution is violating Charter freedoms.

The facts of this case are not disputed, apart from some minor details. 

In early 2020, when Premier Jason Kenney compared COVID-19 to the Spanish Flu of 1918, everyone in Alberta became terrified of the new virus. Governments across the globe believed the dire predictions of Dr. Neil Ferguson of Imperial College of London, who also warned that we were dealing with a virus as deadly as the 1918 Spanish Flu, which killed 50 million people at a time when the world population was barely one fourth of what it is today.

Pastor James Coates and the GraceLife Church congregation initially complied with all public health orders. However, as the “two weeks to flatten the curve” turned into the permanent violation of our human rights and Charter freedoms, the church members (like so many other Canadians) observed the politicians’ ongoing fearmongering was simply not based on facts. 

In our 15th month of lockdowns, the government’s own data and statistics show COVID-19 is harmless to 90% of Canadians, and has a 99.77% survival rate. Death rates in Canada in 2020 were in line with those of 2019, 2018, 2017 and prior years. Statistics show COVID-19 has not had any significant impact on population life expectancy. This isn’t the Spanish Flu of 1918. Not even close. 

To date, politicians have not put forward evidence to back up their repeated claims lockdowns save lives. Lockdowns harm the mental and physical health of millions of children and adults. The Manitoba government’s own expert witness, Dr. Jared Bullard, admitted in court under oath that PCR testing for COVID-19 is not accurate 56% of the time.

Governments and media dishonestly use ‘case’ numbers to keep Canadians in a state of permanent fear. But children are as likely to die of lightning strikes as they are to die of COVID-19. Canadians under 70 should be more afraid of dying in a motor vehicle accident than dying of COVID-19.

After significant research, deliberation and reflection, Coates and his congregation eventually ceased to comply with Kenney’s irrational and unscientific public health orders. Since the fall of 2020, they have held normal, regular church services. The government has not presented any evidence in court that GraceLife’s full church services have caused any harm to anyone.

Judge Robert Shaigec has gone off the judicial rails, not regarding the facts, but in failing to apply a proper two-step Charter analysis.

Public health orders obviously violate Charter freedoms. This is further confirmed by the 35 days Coates spent in jail.

Limiting church attendance to 15% of fire code capacity obviously violates citizens’ freedoms of association, religion and peaceful assembly as guaranteed by the Charter. Public health orders that make it illegal for people to hug each other and sit next to each other obviously violate the Charter-protected freedom of association. A legal requirement to cover one’s face is an obvious violation of the Charter’s rights to liberty and to express oneself freely, and for many individuals this law also violates the Charter-protected security of the person. Whether these limits are reasonable, necessary, and producing more good than harm is an entirely separate legal question, to be answered at the second stage of Charter analysis: is the violation of the Charter freedom “demonstrably justified in a free and democratic society?”

Unfortunately, Shaigec ignored the obvious impact of public health orders on the Charter freedoms of religion, association, expression and peaceful assembly. He instead embarked on a hair-splitting exercise that finds no support in 39 years of established Charter jurisprudence. 

Strangely, Shaigec ruled the enforcement of public health orders did not violate the Charter freedoms of Coates. This is a mystifying finding, and entirely misses the point. The Coates case involves a constitutional challenge to the health orders themselves, not their enforcement. If a law is unconstitutional, that law’s enforcement is also unconstitutional.

Shaigec cites seven reasons for his conclusions, none of them supported by case citations from other court rulings: Alberta Health Services and the police were acting under the authority of the Public Health Act; GraceLife Church was not “targeted” by government; similar restrictions applied to “secular” activities and gatherings; health bureaucrat Janine Hanrahan acted reasonably and professionally; the RCMP did their best not to disturb church services; the police acted on reasonable grounds in issuing the ticket; the police did not obstruct a religious service (prohibited by section 176 of the Criminal Code.)

None of these seven reasons shed any light on the judge’s outlandish and bizarre thesis that law enforcement does not qualify as “government action” to which the Charter applies.

Shaigec suggests that citizens’ Charter rights are not violated when they are threatened, intimidated, ticketed, fined and jailed; he seems to believe that as long as the enforcement of a law is carried out in a reasonable manner, there are no Charter violations. Amazing. 

It will be interesting to find out whether the Alberta Court of Queen’s Bench agrees upon hearing the appeal that will be filed by the Justice Centre.

John Carpay is a Columnist for the Western Standard. He is also president of the Justice Centre for Constitutional Freedoms (jccf.ca) which represents Pastors James Coates and Tim Stephens, and other Canadian challenging lockdowns in courts across Canada

John Carpay is a Columnist for the Western Standard. He is also President of the Justice Centre for Constitutional Freedoms and the former Alberta Director of the Canadian Taxpayers Federation.

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3 Comments

3 Comments

  1. Dominic Ieraci

    June 9, 2021 at 4:44 pm

    I despair at what has happened to canada. Truly eye opening how little our rights and freedoms matter to the politicians. Even the courts are no help. Canada is a failed state at this point.

  2. berta baby

    June 9, 2021 at 4:18 pm

    John is the man, thank you sir! Unfortunately the courts are no longer about Justice , they are a weapon used by these governments to suppress freedom… interesting enough though…. thousands of folks gathered ass to mourn to mourn the loss of the family in Ontario.. ( which was horrible) but the double standard is gross.
    No police assaulting people no organizers jailed… just Christian pastors get that treatment and only under Jason kenney

  3. Claudette Leece

    June 9, 2021 at 3:31 pm

    Thanks John if not for guys like you, the government would be happy to trample all over our rights. Looks again like judges are judging the laws but making them

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Opinion

WAGNER: The prominent Toronto political scientist who called Communism ‘democratic’

As it turns out, some members of Canada’s Left have a fairly positive view of communism.

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Some commentators have noted the silence of Canada’s Left in the face of anti-government protests in Cuba. Why the reluctance to condemn a communist dictatorship?

Well, as it turns out, some members of Canada’s Left have a fairly positive view of communism. One such prominent Canadian leftist was C.B. Macpherson (1911-1987), an internationally-renowned political scientist who taught political theory at the University of Toronto. Among other things, he was especially known for his critiques of capitalism and individualism.

Interestingly, Macpherson also defended Soviet Communism as genuine democracy in action. This can be seen in a series of CBC radio messages he delivered in 1965 that were subsequently published as a book entitled The Real World of Democracy. These lectures argued there were three forms of government that could be legitimately called democracies: the liberal democracies of the West, the Soviet bloc countries, and the one-party states of the Third World. 

As Macpherson put it, “democracy is not properly to be equated with our unique Western liberal-democracy.” Instead, “the clearly non-liberal systems which prevail in the Soviet countries, and the somewhat different non-liberal systems of most of the underdeveloped countries of Asia and Africa, have a genuine historical claim to the title democracy.”

Macpherson explained the meaning of democracy has undergone some change over time. It hasn’t always referred to the kind of constitutional system common in the Western countries: “Democracy originally meant rule by the common people, the plebeians. It was very much a class affair: it meant the sway of the lowest and largest class.” Thus, Macpherson argued Soviet Communism and other one-party states can legitimately be called democracies, based on this definition. That is, he used this conception of “democracy” to describe some of the world’s most brutal and repressive regimes. 

Karl Marx’s proposed “dictatorship of the proletariat” was an expression of genuine democracy in Macpherson’s view. He noted many people would find it outrageous to consider the dictatorship of the proletariat to be a form of democracy. “But,” he wrote, “to call it democracy was not outrageous at all: it was simply to use the word in its original and then normal sense.”

Macpherson’s analysis gets even worse. Lenin extended Marx’s theory by arguing a revolution would need to be undertaken by a relatively small group of class-conscious people he called the vanguard, which is to say, the Communist Party. 

From the Communist perspective, since the vast majority of people in any society are debased by the structures of capitalism, they cannot be trusted to participate in political decision-making. To allow their participation would just perpetuate the problems of the old, capitalist society. Only the vanguard could bring about the necessary reforms. As Macpherson explains: “Lenin, building on Marx, came out for a seizure of power by a vanguard who would forcibly transform the basic relations of society in such a way that the people would become undebased and capable of a fully human existence, at which point compulsive government would no longer be needed.” 

In Macpherson’s view, this rule of the vanguard to “forcibly transform” society is democracy in action, despite the fact that it involves politically motivated executions and concentration camps. Democracy, it seems, becomes indistinguishable from dictatorship.

Macpherson evokes what he calls the “broader concept of democracy” to legitimize the Marxist-Leninist state: “Wherever the circumstances are such that no motion towards this kind of society is possible except through the action of a vanguard, then the vanguard state, so long as it remains true to its purpose, may be called democratic.” Thus, in his view, an outright communist state can be legitimately called a democracy. Many of the most brutal, bloodthirsty, and repressive regimes in the 20th Century were democracies in this sense. Who knew?

Using a similar line of argumentation, the one-party dictatorships of the Third World can also be justified as democracies. Invoking Rousseau, Macpherson wrote one-party states can be legitimately called democracies because “there is in these countries a general will, which can express itself through, and probably only through, a single party.” As a result, “opposition to the dominant party appears to be, and sometimes actually is, destructive of the chances of nationhood. In such circumstances opposition appears as treason against the nation.” Thus, a one-party state, where opposition to the ruling party is punished as “treason,” can be a legitimate form of democracy. (Don’t tell Justin Trudeau.)

Macpherson was an internationally known and respected political scientist. The views he expressed were not the rantings of a black-clad activist running wild in the streets. Some elements of the intellectual Left truly believe that a Marxist-Leninist state (or any other Left-wing single-party state) is a genuine democracy. Despite the inescapably violent and murderous nature of communism, some Canadian leftists view it favourably. 

The lessons of the 20th Century have not been learned. Ideas that inspired inhuman tyranny – what C.B. Macpherson happily calls the “broader concept of democracy” – seem to be making a comeback.

Michael Wagner is a columnist for the Western Standard

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Opinion

MORGAN: COVID has shown the need to overhaul Canada’s health care system

“We need to stop pretending the American and Canadian models of health provision are the only ones on earth. In fact, only two other countries on the planet explicitly ban private health care insurance: Cuba and North Korea.”

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After his retirement, Ralph Klein was quoted expressing regret for having backed down on his “third-way” health care reform plan. We are paying the price today for the government’s lack of will of yesteryear.

Canada’s health care system has long been considered a sacred cow. We have been taught since childhood that it’s the best health care system on the planet; it’s the very thing that defines what it means to be Canadian. Any efforts to reform the system are immediately framed as potentially moving us towards the dreaded American system.

The most politically expedient way to deal with health care challenges has been to blindly toss more money into the system without changing how anything is being done. Government reaction to the COVID-19 pandemic has devastated our finances and exposed massive shortcomings in the health care system. Both these problems are good cause to undertake a serious overhaul of the status quo.

Alberta has 11,120 physicians and 32,000 nurses. We have 161 hospitals and spend more per capita on health care than most other provinces. At the peak of the pandemic, the number of COVID-19 patients in hospital beds was just over 500 people. Why did this volume of patients seemingly bring our system to the brink of collapse? If we don’t ask ourselves some tough questions and begin to make some serious changes to our system, we could find ourselves vulnerable to a true systemic meltdown if a more serious pandemic hits us down the road.

In the event of a widespread medical crisis, a system needs to be able to pivot in order to meet sudden new pressures. Our socialized system has led us into centralizing our treatments and procedures into hospitals. Many services and procedures are being performed in hospitals when they could have been done in outside, specialized clinics. When something like a pandemic occurs, entire wings of hospitals can be closed off while large blocks of staff are placed under quarantine. This leads to procedures deemed as being non-essential being deferred which leads to long backlogs of medical procedures which could take months, or years, to catch up on. If we had more health facilities outside conventional hospitals, our hospitals could focus on acute health care needs while elective and non-urgent procedures continue unhindered in clinics.

In order to get these specialized clinics, we will need to allow more private investment into health care provision. We have to set aside that ingrained prejudice against profit-based models in health care provision. Private clinics for general practitioners haven’t crushed the system. Private facilities for everything from hip replacements to dialysis won’t either. This is not a matter of reinventing the wheel. Most European nations allow for private health provision within a publicly funded, universal model. Entire private hospitals are integrated within public systems. We need to stop pretending the American and Canadian models of health provision are the only ones on earth. In fact, only two other countries on the planet explicitly ban private health care insurance: Cuba and North Korea.

Many other systems are outperforming Canada’s in both outcomes and in cost. It does not deserve the status of sacred cow.

We will also need to take on the public sector unions. Organized labour has traditionally battled every form of health care reform every step of the way. How many years have we battled back and forth over something as simple as the outsourcing of hospital laundry services?

How many stories have we heard about nurses who game an incredibly generous overtime system to the point where some have earned over $200,000 per year? Alberta’s nurses are the highest paid in Canada yet they immediately started rumbling about striking when the Kenney government proposed a modest 3% pay reduction. We are in an economic crisis as well as a pandemic. If we can’t even get modest concessions from unions in times like these, we won’t be able to sustain our service levels for much longer. Seniority systems and contract clauses make it difficult to schedule staff based on surges leading to sporadic shortages and over staffing at times. It’s going to take some strong will and it will take some labour disruptions, but the union stranglehold on health care provision needs to be ended.

We need to look beyond the politics of envy and let people pay out of pocket for enhanced services. They wouldn’t be jumping the queue. They should be jumping out of one queue, and into another, allowing both to receive quality services faster.

Let’s face it, people have been leaving the country in order to “jump the queue” for decades. These people aren’t always rich, but they are desperate. If a person is given a choice between suffering or potentially dying on a waiting list for treatment or selling their home and seeking treatment in another country, most will sell the house. Let’s keep those dollars here and have regulated pay-for-service models that allow for private insurance. It will lead to shorter wait times for all. Don’t look at it as if it is a person cutting the line ahead of you, look at it as if a person wants to spend their own money in order to shorten the line for all of us.

Canada’s health care system is rigid and obsolete. The pandemic has shown us we are always teetering on the brink of overrunning our capacity despite constant increases in health care spending. Our economy is in shambles and government deficits are unsustainable. If we want to have a strong, universal health care system we can rely upon during times of crisis, we need to dramatically reform our current one. There’s no better time than right now to begin that process. Let’s hope our political leadership can find the will and courage to take on this difficult but essential task.

If they can’t stand their ground on a modest wage reduction for nurses, they won’t be able to do what really needs to be done in the long term.

Cory Morgan is the Alberta Political Columnist for the Western Standard and Host of the Cory Morgan Show

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Opinion

CONROY: Biles did the best she could under the circumstances

Simone Biles has just as much of a right to take a break, step back, or make any other choice for her career which she sees fit.

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Simone Biles’ choice to withdraw from the remaining Olympic events is respectable when you look at her reasoning.

Characters like bombastic TV personality Piers Morgan would disagree, but Biles’ choice to withdraw from the remaining gymnastics competitions in this year’s Olympics is not only honourable but, sadly, predictable. The lives of professional athletes have always been caught up in a sporting culture that has only grown more and more toxic with the years.

The modern world of competitive athletics places values of unachievable proportions onto its athletes. Theories have been offered pointing to the rampant doping in athletes being largely because of unrealistically high expectations for their performance. These unrealistic expectations can lead people on both sides to do crazy things.

It’s no secret larger organizations like the International Olympic Committee (IOC) — an entity historically known for openly partaking in corruption — not only allow these smaller entities to get away with abusing their athletes, but go so far as to create a culture encouraging it. The IOC has long since been turned from an organization valuing athletics over all else into a business seeking profit.

In 2018, Biles bravely came forward saying she had suffered abuse at the hands of Larry Nasser, the former doctor for the American women’s national gymnastics team. Biles was among dozens of other gymnasts who accused Nasser of sexual abuse. He later pleaded guilty and is currently serving a 60-year prison sentence.

Biles said the abuse she suffered under Nasser during her teen years left her with trauma and thoughts of suicide. The athlete was told by her coaches and superiors at USA Gymnastics to trust Nasser, which is why she rightfully places the blame on USA Gymnastics for the suffering she went through.

It wasn’t Biles who let the team, the Games, America, or anyone else down, it was Biles who was abandoned by the establishments meant to protect her.

Simone has handled this situation with a level of grace and maturity very rarely seen in someone so young. It’s amazing to watching her take on criticism from the likes of Morgan and others who feel entitled to her and her career.

They seem to be taking it as a personal attack of sorts because Biles has chosen to put her mental health above her career for seemingly the first time ever. Biles has recently been open about her history of sexual and other forms of abuse during her athletic career.

With an autobiography already under her belt, word she will be attending virtual college soon for business administration, and even placing fourth on a season of Dancing with the Stars, Biles is already more accomplished at 24 than most of her critics can say at twice her age. She deserves to pursue whatever she wishes to, and while gymnastics maybe her passion it is healthy to maintain a sense of well-roundness.

Biles has competed in five gymnastics world championships and games already, and won four gold medals at the 2016 Rio Games alone. Biles holds an impressive portfolio and is objectively known as the most accomplished American gymnast in the world right now.

Achievement like that doesn’t come cheap. Athletes like Biles give up every other aspect of their life in order to put the full focus, energy, and time into their sport. She switched from public school to homeschooling in 2012, allowing her to up her training hours from 20 hours to 32 hours weekly.

She currently maintains a schedule of full seven-hour practices Mondays, Tuesdays, Wednesdays, and Fridays and allows herself half practices on Thursdays and Saturdays.

Gymnastics is one of the most dangerous sports one can compete in. With increasingly intricate moves now being completely banned by many athletics organizations for their potential to cause damage to the person performing them, completing many of these tricks requires full mental engagement. When one’s head isn’t in a positive, stable enough place to engage fully, disaster can easily strike.

The vault routine incident many believe led to Biles’ withdrawal from the team and other remaining events have been described by those in the community as Biles “losing herself in midair.” This short drop in focus apparently almost ended tragically, she failed to complete a double and-a-half turn which could have left her with “career-ending” and “life-threatening” injuries according to former gymnast Andrea Orris.

Biles’ choice was probably one of the most difficult of her life, and for the world to weigh in and criticize what she believes is best for herself is entitled and ridiculous. For Biles to receive such aggressive backlash for openly choosing to honour her mental health and take what she believes is a needed step back from her career is disappointing in a day and age where mental health is touted as the latest buzz words.

At the end of the day, Biles’ gymnastics career is just that — a career, a job. Just because the general public has been let into her life to watch her perform and compete, she’s still completing a job which, like any other career, allows one to leave it if the situation becomes undesirable.

Biles has just as much of a right to take a break, step back, or make any other choice for her career which she sees fit. Perhaps social media has played a large part in allowing people to believe they do have the right to offer their opinions to someone they’ve never met before.

Is this what we as a society want? To watch someone for solely our own amusement — it’s not like any of us have stakes in Team USA — even if it means the person is mentally breaking herself just to perform?

Biles has obviously accomplished so much in gymnastics by her own volition and desire, but now it should be left in her very capable hands to decide what she’ll do next.

She doesn’t need career advice from anyone right now.

Jackie Conroy is a reporter for the Western Standard
jconroy@westernstandardonline.com

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