Updated! Charter Rights Challenge vs. Bonnie Henry Mandates in BC

Covid National Politics

Jeremy Maddock’s Memorandum of Understanding scheduled for hearing May 12-13 (today!) at the Supreme Court of British Columbia in Victoria, BC

By Gabriel Sinduda

** See updated review of the day in court following story below. **

A complete PDF of the Memorandum of Argument (as seen above) can be found here:
Jeremy Maddock vs. Bonnie Henry Petitioners Memorandum

Supported by The Democracy Fund, three clients, including Victoria resident Jeremy Maddock, are being represented by counsel from JSS Barristers (as hired by TDF) in court challenging the BC Provincial Health Officer and Attorney General on extreme measures experienced during the pandemic. You can read more about this exciting court challenge on the TDF website, here.

And for now I share with you screenshots of the first two pages of the Memorandum, in which the beginning of the argument vs. Bonnie Henry’s mandates, in contravention of our Charter Rights, is summarized:

Judge Hinkman to be the presiding.  Julie Gibson represents opposing council.
NYCBC News will endeavour to provide our readers with updates on this case as they arise.

Watch for an interview and update with Petitioner Jeremy Maddock coming soon.

  • May 14 update from Chad O’NeillWeUnify.ca Communications Director:
The court action wrapped up in a single day rather than the two scheduled and it was a complete rout with the government lawyer unable to formulate a coherent defence and being corrected by Chief Justice Hinkson multiple times. Bonnie Henry was not present.
The Justice is hearing several such cases back to back and is planning to release judgement on the legality of the covid passport program this summer. Our case is the broadest as we are not challenging Maddock’s right for exemption but challenging the program itself under the charter section 7.
Following is an outline of the day’s proceedings in the Supreme Court, as provided by Chad O’Neill:
BC Chief Justice Christopher E Hinkson has restricted seating to 20 people, our group this morning has about 60 members of We Unify attending. We are on the sidewalk and in the hallway outside the court room showing support. Petitioner is our @MaddockJ, opposing council representing BC Public Health is Mr. Bjornson (masked) and Ms. Gibson (masked).
Maddock is not seeking to challenge medical exemptions but petitioning for a judicial review regarding his constitutional rights in regards to medical and bodily autonomy as well as the right to use public private areas despite his vaccine status. He does not qualify for a passport nor an exemption.
Maddock has a law degree and works as a consultant which involves working and meeting in public private spaces such as restaurants. His standing (right to bring a court action) is derived from this inability to access these spaces. Maddock offers Bjornson the opportunity to object to his entire case on the point of mootness (the passport having been since lifted) but Bjornson does not reply.
Maddock, among others had filed a reconsideration under section 43 (https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/08028_01#section43) with the BC Public Health Office (PHO) which is a form of petition that seeks to redress, correct or limit the imposed health orders. He quotes Dr. Bonnie Henry as stating that passports would increase inequity. Maddock quotes Henry in saying that the mandates and passport program were scientifically AND politically motivated.
Maddock begins citing medical studies and peer reviewed journal articles showing that the vaxxed and unvaxxed transmit the virus equally. Maddock states the health orders are overbroad and arbitrarily applied. Justice mildly rebukes Maddock’s medical acumen in determining respectability of medical sources. Maddock cites The Morbidity and Mortality weekly report from the CDC. Justice “Did you do a Medline search?” Maddock – “I don’t have access to Medline.”

Maddock reviews 22Dec order by Henry, showing medical evidence Henry ought to have considered. Maddock explains he is not attempting to submit expert medical evidence, merely to show that during the period in which Henry reinstated the passport system (6 or 7 times), new scientific evidence was made widely available that suggested the folly of such lockdowns and mandates. Justice accepts Maddock’s position.

Maddock reiterates that mandating a medical treatment in exchange for access to public spaces is a grave concern and asks where this leads. Would a bad flu season justify restricting public access? Maddock posits that the PHO is not nimble enough to respond to reconsideration requests and evolving science. The PHO’s stated basis for not considering reconsideration requests is that THERE WERE TOO MANY OF THEM.

Maddock states it would be unconstitutional for the government to mandate organ donation or blood donation in exchange for our charter confirmed rights or to avoid punitive measures.

Justice states that he supports the choice of the person to engage in medical directives, citing Carter (right to die). Justice seems sick of hearing about medical reports from a non-physician.

Maddock points out that the vaxxed are getting more sick than the unvaxxed and then switches up to the Patricia Daly letter (https://twitter.com/DreaHumphrey/status/1503480991687401473/photo/1) on Vancouver Coastal Health letterhead, signed by 4 doctors that says the same thing.

Maddock argues the inanity of mandating vaccines for restaurant patrons while restaurant workers are not so mandated. “If I, as an unvaxxed restaurant worker, decided to sit out front and take a meal after my shift, I would be escorted off the premises, perhaps by a fellow unvaccinated restaurant employee.”

Maddock mentions Henry’s statement on 21Dec that in restaurants, seated events suffer less risk. He confirms that there is negligible evidence of outdoor transmission as stated by Henry. This is PHO policy as outdoor events are not mandated as vaxxed for entry like indoor events. This is an example of overbreadth as the PHO orders go too far – the unvaxxed may not eat seated outdoors on a restaurant patio. Maddock also mentions that food courts in malls have no restrictions, are often less sanitary and do not hold to social distancing.

Maddock wraps up to say that the PHO orders which incentivise the uptake of the vaccine go against Section 7 of the Charter (person’s right to control bodily integrity among others). To the extent that the orders do not achieve their objective they are overbroad and to the extent that they do achieve their objective, they are arbitrary. This is a strong rhetorical finish from Maddock. The audience is visibly heartened.

Bjornson begins with the obligatory motion to dismiss, on the grounds that the issue is moot (the orders have been lifted) and there is insufficient information/evidence. He states that Section 7 is not engaged and the health restrictions are reasonable. He states that Maddock has a misapprehension of the Vaccine Card, it was not designed to limit transmission but to reduce health issues, severity of illness and hospital burden. He actually says Vaccine Card here a number of times when he likely means the vaccine but no one challenges him on this.

Bjornson refers the court to Dr Emerson’s (acting deputy provincial health officer BC) affidavit and quotes a number of sentences that boil down to “the unvaccinated are dangerous.” Bjornson goes on to repeat typical govt talking points and bores us with a history of the entire timeline of the pandemic and the govt responses. “The unvaccinated are hurting govt health services… alcohol increases risky behaviour… the unvaxxed are a greater risk.” Bjornson pedantically iterates Henry’s mendacious statements demonizing the unvaxxed and praising the vaccine.

Bjornson states that the PHO received 800 requests for reconsideration of the health orders based on either disagreement or providing alternatives. He acts as though 800 requests was an unreasonable amount of work to review, assess and rule on, and admits that this would take too much time and resources so the decision was made to ignore them.

Justice asks Bjornson if he concedes that Maddock has standing based on his section 43 reconsideration request. Bjornson is unprepared for the question and is taken aback. He begins burbling and murmuring but does admit that Maddock has standing but prevaricating that the PHO couldn’t possibly review all the medical articles. This feels like a legal gotcha moment from the Justice.

Justice reiterates that Maddock’s request to reconsider is not merely a request for an alteration to the public health program but a reconsideration of the entire program as evidenced by the additional documents attached. Bjornson, still mumbling and reeling concedes the point. Bjornson is a decent speaker, I would guess mid-thirties but he has no stake in this. He’s just doing his boring job as a govt lawyer in a sleepy town.

Bjornson after a few minutes babbling, stalling and shuffling papers gets back on track by reiterating Henry’s talking points, this sounds like one of her press conferences. Bjornson shoots himself in the foot again by repeating that “in the interest of public health, Dr Henry decided to disregard reconsiderations and exemptions.” This is ludicrous, suggesting that it is in the best interests of the people to ignore the concerns of the people and continue to ride roughshod over them.

Bjornson suggests that arguing this petition is moot as the passport program has been rescinded. Justice Hinkson thunders in here in his mild, phlegmatic way, demanding that Bjornson disregard any attempt at mootness as covid may recur and the passport program with it. Bjornson is down! Verbally he is punch drunk at this point. Perhaps he wasn’t paying attention to Maddock’s speech at all.

After a couple minutes reeling and rearranging binders Bjornson moves on to arguing the constitutionality of Maddock’s case. He argues in a whine that this doesn’t relate to section 1 nor 6. These may relate to arguments from other cases on political or religious grounds that Bjornson is more familiar with. However, Maddock’s argument is more broad and tenacious than a public health lawyer is used to hearing.

Justice again corrects Bjornson – Maddock is challenging the liberty and security branch (of section 7 I assume). Bjornson mentions tired arguments such as the health mandate to wear shirts and shoes in a restaurant, freedom to roam and Haywood are mentioned as precedent, not for the first time.

Bjornson mentions the Gateway bible Baptist case in Manitoba. Justice corrects him on a point of order regarding right to roam vs the economic right of using restaurants for a place of business.

Bjornson is scraping the barrel now and coming up dirty. He claims that Maddock’s need to meet clients only began in July 2021, suggesting he has very few clients and has no need for meeting anybody. Bjornson claims (ludicrously) that the vaccine card leaves the right intact to refuse medical treatment. Now he ADMITS that the vaccine card is a “method of encouragement” to vaccinate. This seems like a dumb thing to say considering he earlier stated it was directly improving public health and Maddock argued that the card program as incentive was in violation of the charter.

Bjornson states that Maddock has provided no evidence that he had a good reason not to vaccinate. The audience remains quiet but you can tell we are all thinking “what the hell!?” Justice stomps in here – “He’s entitled to that choice.” Bjornson cringes – “But it’s not political or religious.”

Justice, in a triumphal moment here – “If he has the right to bodily autonomy, why should he have to tell me the reason?” I feel like cheering. Bjornson is toast. This hearing was scheduled to go until midday tomorrow but I don’t see how it can last.

Bjornson begins to argue the principles of fundamental justice in section 7 of the Charter. He argues against Maddock’s claims of arbitrariness and overbreadth by stating that they were neither arbitrary nor overbroad. Rather weak argument. He argues that Maddock’s medical evidence was unacceptable. Justice steps in for another go at the punching bag that is Bjornson – “The references to medical articles were not offered as evidence.” (they were used to suggest that Henry had not kept up with research in making her decisions.)

Bjornsons arguments now are circular and self-justifying, the only evidence he has given are the statements of Henry and her deputy even though those are the very people whose competence is being questioned. Bjornson is wrapping up, asking plaintively again for a motion to dismiss and in a show of remarkable cuckoldry, asks for no costs (financial punitive measures), stating that this is normal in a judicial review.

Bjornson rests. Justice Hinkman offers Maddock the remaining 40 minutes and tells him he can come tomorrow and take the remainder of Bjornson’s time if he so wishes. Justice appears to admire what Maddock has done here. Maddock makes a few rebuts, the most notable of which includes the comment “if the PHO can enforce, through restriction of freedoms or punitive measures, medical treatments upon healthy people to assuage the risk of overburdening hospitals, where does this lead? How can the PHO legally mandate behavioural change?” (heavily paraphrased).

Justice Hinkman states he is reserving judgement (expected) and will rule this summer. He is hearing 5 or 6 of these cases back-to-back. Yesterday’s was from the democracy fund. We Unify’s hope is that his ruling will make it very difficult for the PHO to reinstitute any sort of mandates in the future and to set a legal precedent for future legal cases to go further. This is merely an opening salvo against this new government tactic of medical tyranny.


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