No Justice Here: Update on the Sue Bonnie case
“The more laws, the less justice.” —Cicero
There’s good reason for the axiom that the law isn’t about justice but about maintaining the status quo of those in power. Or maybe I just made it up, but not without reason, as you’ll see. Kip Warner, who has been leading the Canadian Society for the Advancement of Science in Public Policy (CSASPP) cases against Bonnie Henry—known for short as the “Sue Bonnie” campaign—has announced today that they have lost one of their cases. I encourage you to read his announcement. [1] “The Chief Justice’s ruling in respect to the injection passport petition was returned to us. In a nutshell, we lost. I am sorry.” CSASPP had petitioned that the vaccine passports were an infringement of Charter rights in addition to lacking any scientific basis, but Justice Hinkson ultimately disagreed on almost every count.
Bonnie Henry’s team had tried to argue that neither Warner as a private petitioner or CSASPP as a public petitioner had any legal standing, but on these points Hinkson disagreed, allowing the case to proceed. And even this must be qualified by the judge’s statement that he “will not grant public interest standing to the Society,” accepting Bonnie Henry’s argument that “it has a negligible membership base.” What this means in legal terms is unclear to me but it may mean that they are not eligible to represent British Columbians as a class. Further, Hinkson refused to simply dismiss the case as requested by Henry’s legal team, because “…they could offer no assurance that the impugned aspects of the impugned Orders would not be reintroduced if the communication and incidence of COVID-19 increased due to the anticipated fall cold and flu season or for any other reason.” He is referring to vaccine passports. (You can read the entire ruling here: https://www.bccourts.ca/jdb-txt/sc/22/16/2022BCSC1605.htm)
From my perspective, Justice Hinkson’s ruling is a devastating setback. Sue Bonnie campaigner Rick Thomas doesn’t quite see it that way, noting that CSASPP has been granted leave to appeal the decision, and the society was not fined any of the defendant’s court costs. But as he also admits, justice doesn’t come cheap, so it means another round of fundraising for legal funds to support an appeal. As I reported earlier in “Fighting the Good Fight—in Court,” [2] CSASPP’s other case, which strikes at the heart of the emergency declaration in BC, has already cost $300,000 to pursue. And that’s before the actual trial even begins next April.
“This case was also four cases that were lumped together by Hinkson, so we need to find out if they’re all going to appeal or not,” says Thomas. “The other saving grace is that we didn’t have to pay costs, and he didn’t trash CSASPP, so that shows respect for the organization.”
Because I’m not even remotely versed in the law, I won’t go into a legalistic discussion of Judge Hinkson’s decision but stick to what I see as some of the gross inconsistencies of his ruling. In what seems an obvious case of ‘selective hearing,’ the judge was prepared to accept at face value the testimony of doctors supporting Bonnie Henry’s case but not those supporting CSASPP’s case. Specifically, a detailed report by Dr. Joel Kettner, which the judge agreed to hear but ultimately ruled against. In the Kettner Report, as it is referred to in the decision, the following principles are asserted:
(a) “Interventions in public health should be explained and justified transparently, including admissions of uncertainty. Options should be described. Reasons for their acceptance or rejection should be explained;” From my perspective as a journalist who has spent thousands of hours researching the pandemic since its beginning, I see no evidence that Bonnie Henry’s office provided transparency as to the basis for her pandemic measures.
(b) “Decisions and judgment should be made using available data and evidence”, “[t]he expected approach of decision-makers… when data is incomplete is to make the best estimates possible of the most relevant and consequential parameters”, and “it is incumbent on decision-makers to explain why they have chosen such parameters, what are their best estimates of each parameter, what evidence has been used for making these estimates, and how they have used these estimates in their decision-making;” I see no evidence this was done either.
(c) “For quantitative estimates, such as the effectiveness of certain interventions, it is not enough to say that ‘something works’ or that something ‘may happen’” and “assertions such as masks ‘work’ without an estimate of the infection transmission reduction and other benefits and harms should be considered just as unacceptable as asserting that a vaccine ‘works’ without providing a numerical estimation of its efficacy or effectiveness such as reduction of infections, hospitalizations, and deaths as well as the rate and severity of side effects”; and
(d) “For public health strategies such as mandatory vaccination or restriction of activities for people without full vaccination, the beneficial effects and harms of such an intervention should be estimated, measured, and monitored.” Again, no evidence this was done; if anything, post-market tracking of adverse reactions to the experimental vaccines has been all but nonexistent, as Dr. Byram Bridle has complained.
Yet Justice Hinkson concludes that, “the Kettner Report is not relevant to these proceedings”(!) By contrast, he accepts without question the testimony of Dr. Emerson submitted by Henry’s team, even where it contradicts the many studies that conclude the opposite: “Dr. Emerson also deposed that unvaccinated and previously infected are at a higher risk than vaccinated people with two doses, without providing a complete explanation for this view. I do not find that it was necessary for Dr. Emerson to fully explain his view.” Hinkson also accepts that Dr. Emerson’s statement that “the public healthcare system was overtaxed,” and sees no problem with “his failure to explain how hospitalizations were recorded, (or) the lack of an explanation as to how the respondent adjusted for age differences,” stating that he believes this “required no further elaboration.”
As if any further evidence of judicial cherrypicking were needed, he rejects outright the statement provided for CSASPP by Dr. Patty Daly, Chief Medical Health Officer for Vancouver Coastal Health, who stated publicly that transmission in restaurant settings is not a high risk. She concludes therefore that, “It really is to create an incentive to improve our vaccination coverage.” Hinkson also rejects the statement made by Dr. Ono, UBC president and vice-chancellor, that, “Current scientific evidence, including BC data, indicates that COVID-19 vaccination (2-doses), while effective at preventing severe illness, is not effective at preventing infection or transmission of the Omicron variant of SARS-CoV-2, which now accounts for almost 100% of cases in the province.” Justice Hinkson merely states that, “Like the view attributed to Dr. Daly, there is no indication of the bases for this view, nor a basis for preferring that view to what I have accepted to be the informed views of the respondent (Bonnie Henry).”
Justice Hinkson also rejected all of the grounds presented for a case based on the Charter of Rights and Freedoms. (In case you thought that actually mattered.) The CSASPP case cited Section 2(a) of the Charter as having been violated by the vaccine passports, i.e. “freedom of conscience and religion.” Hinkson ruled there was no evidence of that. CSASPP cited Section 2(b) of the Charter, that everyone has the right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” Hinkson ruled that, “I am not prepared to make a finding of a breach s.2(b) of the Charter in the absence of an adequate evidentiary record, and dismiss this aspect of the petition.”
Regarding Section 7 of the Charter, that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice,” Justice Hinkson makes an interesting admission: “Section 7 of the Charter does not promise that the state cannot interfere with a person’s life, liberty, and security of the person, but rather, that the state will not do so in a way that violates the principles of fundamental justice.” The nebulous latter part of that statement is not elaborated upon. So it’s okay for the state to violate our security of person by forcing vaccines on us, just so long as it doesn’t violate “principles of fundamental justice”? What does that even mean? Yet at the same time Hinkson’s decision notes that, “Pursuant to s.7 of the Charter and the common law, the petitioners are clearly entitled to accept or decline even life-saving medical treatment,” which “includes the decision of whether to take a COVID-19 vaccine.”
As Rick Thomas observes: “In section 143 he also says: this argument ignores the fact that the vaccination was never mandatory. Well it was mandatory because when you use coercive measures to promote vaccination it is mandatory.”
In dismissing the case, Hinkson falls firmly into the BC government camp, unsurprisingly: “I am satisfied that the PHO assessed available scientific evidence to determine COVID-19 risk for gatherings in British Columbia, including epidemiological data regarding transmission of SARS-CoV-2 globally, nationally, and in British Columbia, factors leading to elevated transmission risk in religious settings, and COVID-19 epidemiology in British Columbia.” This despite the fact that not once in any of her media briefings did Bonnie Henry cite, quote from or even allude to any peer-reviewed scientific studies that supported her pandemic measures.
It appears that justice, like beauty, is in the eye of the beholder. And of course, those with the deepest pockets.
[1] CSASPP Update: https://www.covidconstitutionalchallengebc.ca/status-updates
[2]
Wow! This judge is massively blindly pro-vaxx/must-vaxx and is just accepting the Official Covid Mythology with no proof required. It's really a horrible judicial outcome apart from the fact that plaintiffs have leave to appeal. But as you say, that will take massive funds.