Wednesday, June 30, 2021

Ontario judge sidesteps Charter challenge to province's Covid law

 'BBQ Rebellion' gets turned away from court, delaying face-off over COVID lockdowns | National Post - Adrian Humphreys:

June 28, 2021 - "To the dismay of supporters ... an Ontario judge declined to hear a constitutional challenge of pandemic enforcement mounted by Adam Skelly, who refused to close indoor dining at his Toronto barbecue restaurant during the lockdown. The judicial fizzle came as Skelly and his supporters were expecting a titanic face-off during two days of scheduled court time, for which they prepared a full-throttle attack on lockdowns, masks, COVID testing, hospitalization statistics and the danger of the virus itself.

"Skelly had put his food business on the back burner for six months to prepare for the constitutional challenge, supported by a war chest of more than $300,000 raised through a GoFundMe campaign. Skelly said he had 'hired and fired six lawyers' before settling on his team, and assembled six witnesses to offer expert opinion, all of them with PhDs or medical degrees, including Dr. Joel Kettner, a former chief medical officer of health for Manitoba.... In November 2020, Skelly’s restaurant in west Toronto became a high-profile flashpoint when he defied orders to close indoor dining.... Anti-lockdown protesters clashed with police, who arrived in large numbers to enforce compliance. Skelly ... maintains the order and the government’s response were unjustified and unconstitutional.... He refers to it as Canada’s most important constitutional case.

"People logging in to watch the online hearing quickly exceeded the maximum capacity of 500 long before court started, meaning there wasn’t room for the judge or the province’s lead lawyer to be let into the hearing.... A plea from the court registrar for some to volunteer to leave eventually allowed the judicial participants in, and for the hearing to convene.

"Zachary Green, representing the province of Ontario, argued there was no procedural basis to entertain Skelly’s constitutional objections. He said Skelly has not embarked on any court application claiming relief against the province, he has only contested Ontario’s motion against him and his restaurant. Green said that violates established rules of procedure.... 'Indeed, they are vexatious,' the government’s court filing says.

"Michael Swinwood, representing Skelly, replied that the constitutional element of Skelly’s defence has been clear from the start. If the province objected to his constitutional questions, they should have asked a judge to strike them out of their reply to the court.... Pre-trial procedures, including judicial case management conferences and the examination and cross-examination of expert witnesses, went ahead arguing the wider constitutional issues without any complaint or objection from the province, he said. In court materials, Swinwood said the government’s responses to COVID-19 were not based on scientific principles or respect for human rights and are more intrusive than available alternatives.

"Judge Jasmine Akbarali, of the Ontario Superior Court of Justice, briefly adjourned court to deliberate before returning with her verdict. 'I regret to say, I do not think I have the jurisdiction to proceed to deal with these issues on their merits today,' she said. 'I do not think the hearing has been constituted in such a way to give me that jurisdiction, and it is in nobody’s interest to go ahead with the two-day hearing that is easily vulnerable on appeal on the basis that I didn’t have jurisdiction.' Written reasons were to be issued later....

"After court, Skelly’s lawyer expressed dissatisfaction with the outcome. 'The courts have no appetite for constitutional challenges to COVID-19 lockdowns and protocols,' Swinwood told National Post. 'Technical procedure is to rule over substance. Our freedoms are in peril and the court refused to take jurisdiction over the matter despite the rules that are designed to be flexible so that serious matters can be heard and not summarily dealt with. There is something deeply amiss,” he said.

"Green deferred to the Ministry of the Attorney General’s spokesman for comment on the case. The ministry declined to comment, 'as this matter is before the court,' said spokesman Brian Gray.... The matter is expected to return to court at a later date, once a constitutional application is filed in the court."

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