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Judicial Review of Dr. Bonnie Henry’s Orders begins in BC Supreme Court on Monday, November 20, 2023.
Public
Update: The Judgment was released on May 10, 2024 and is available on the BCSC website: Hoogerbrug v. British Columbia, 2024 BCSC 794 – 2024/05/10
Dr. Z. Essak, MD - Vancouver, BC - November 19, 2023.
Finally, an opportunity for everyone to hear a BC Judicial Review of the ongoing orders of Dr. Bonnie Henry, Public Health Officer, and the BC Government that, since November 2021, have impacted the livelihood of thousands of health care workers in BC who are unvaccinated, prohibiting them from working in health care. BC and Nova Scotia are the only jurisdictions in the world that have not allowed unvaccinated health care workers to return to work. Orders and actions that have caused severe division even among health professionals and workers; where nurses, doctors, paramedics, porters and others are not sure who is safe to talk to if they disagree or think consent for vaccination is paramount.
Starting Monday, November 20, 2023, the BC Supreme Court will begin the Judicial Review of Dr Henry’s orders and the October 2023 amendment perpetuating them.
A judicial review is a process where the Court is asked to review the decision of an administrative tribunal (decision maker) to ask if it is reasonable and fair.
Is it reasonable to consider that there is still an emergency? Is it reasonable that health care workers are not permitted to work at their livelihoods if they are not vaccinated?
Where is the science? Something Dr. Henry and BC Health Minister Adrian Dix like to brag about as they repeat, “We follow the science”. Well, is that so?
With over two years of tireless efforts by some doctors and health care workers, the petitioners, have brought this forward. Now it will be an opportunity, through the lawyers and affidavits, for the respondents, the BC Government, and the petitioners to identify and highlight, from the agreed record of materials provided by the Government: how is it, or is it not, reasonable or fair? Ultimately, it will be up to the judge to make the decision.
Meanwhile, we can all witness what unfolds and comes to light. Maybe, it will help clarify questions in our own minds and those of other people throughout BC, in Nova Scotia, and around the world.
People can attend the Court in person and hear the Judicial Review for themselves, at the BC Supreme Court, 800 Smithe Street, Vancouver starting on Monday November 20, 2023 at 9am and scheduled for 10 days.
For public accessibility the Court has provided a telephone link to listen live to the proceedings. Call 1-778-725-6348 in Metro Vancouver or toll free 1-844-636-7837 followed by conference ID: 333 268 777#. Call in shortly before the court session starts; usually 10 am in the morning and 2 pm after lunch break. Times may vary and are announced at the end of the preceding session.
Web Links:
1. BCSC What is Judicial Review?
https://supremecourtbc.ca/civil-law/getting-started/what-is-jr
Judicial Review is a process where the Court is asked to review the decision of an administrative tribunal to see if their decision was unreasonable or unfair. There are no witnesses. Instead, the matter is heard by a judge and the evidence is presented by affidavits only.
The judge does not focus on whether they would have made a different decision from the one made by the tribunal. The judge generally focuses on determining whether the tribunal had the authority to make a particular decision and whether the tribunal exercised that authority in a fair and reasonable way.
The government has given tribunals the authority to make decisions about certain issues. The Court recognizes that tribunals have specialized knowledge and experience in their particular subject areas and, because of that, the Court will not easily interfere with a tribunal’s decision.
2. Orders of the BC Provincial Health Officer – October 5, 2023
https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-care-system/o...
3. CBC News May 23, 2023
https://www.cbc.ca/news/canada/nova-scotia/province-ends-covid-19-health...
With the removal of the order, employers and operators of high-risk settings are now responsible for their own policies on COVID-19, including masking requirements and whether employees, outside service providers and volunteers need to be vaccinated.
Public Health has given guidance to operators of congregate settings — such as health-care facilities, long-term care homes, prisons and jails and some Community Services facilities — about managing COVID-19 and other respiratory viruses.A statement from Nova Scotia Health and the IWK Health Centre said all employees of the two organizations are still required to provide proof of their primary series of COVID-19 vaccinations, though medical and human rights exception processes remain in place.
Groups:
Day 1 of the Judicial ReviewPublic
Dr. Z. Essak:
The Judicial Review got underway on Monday morning. At the opening of the Court session, the presiding judge, Justice Simon R. Coval, was concerned that the Court room was too small with people already overflowing into the hallways. He expressed the importance for the public to have access to the court proceedings and moved to a larger court room and also ensured public accessibility with providing of a phone number so people can call in to listen to the live proceedings, an important consideration since the audio volume in the court room itself is low and it can be difficult to hear the proceedings.
Even though court proceedings can move quite slowly there was a lot to learn from talking to other people between sessions. Nova Scotia delayed, until May 2023, removing mandates that prohibited health care workers from working who had refused the Covid-19 mRNA vaccinations for the Sars-CoV-2 virus; and only removed the mandates after ensuring policies were implemented to make it a condition of work throughout health care to perpetuate prohibiting them from returning to work.
The approach of provincial governments to implement extended use of mandates through policies as conditions of employment even when contrary to principles of informed consent and the right to refuse medical treatment has also been used by the Ontario Government and there are regional pockets within that province where health care workers are not permitted to work if they have not been vaccinated.
The same approach of perpetuating mandates from the provincial health officer and government as policy directives is also evident in BC health care and it has also leaked over into other sectors of industry and services. For example, BC Hydro, after mandates were lifted, implemented conditions of work requiring workers to have received the Covid-19 mRNA vaccination. Those who refused the vaccination have not been allowed to return to work and were terminated, with significant impact on themselves and their families financially, mentally and to their morale. Some of them who were close to retirement found prospects for alternate employment limited. It also impacts their ability to provide their growing children a role model of a positive, hopeful attitude; especially on low days.
I have updated the post itself to clarify the ongoing restrictions in Nova Scotia as I understand them and to provide information on public access to the court proceedings of the Judicial Review.
Also available online is a video with responses from Dr. York Hsiang, nurses, and others who attended the first day, click here.
And here is the news of the appointment of Justice Simon R. Coval in December 2020, https://www.canada.ca/en/department-justice/news/2020/12/minister-of-jus...
End of Week One; Court Returns Tuesday for Response from PHO/GovPublic
The Judicial Review is ongoing. The first week has finished and Court will resume on Tuesday morning, November 28, when the respondents (the PHO/BC Government) lawyers will provide the response to petitions 1 and 2 of 3, followed by a reply from the petitioners lawyers on petition 1 and 2. The Court will continue for 4 days next week and then the court will return on December 18 to 21 to hear from the second lawyer for the petitioners of petition 3 followed by the response and reply.
The public can listen to the proceedings live by phone. It can be better than listening in the court room; on the phone you can clearly hear the dialogue between the judge and the lawyers which makes it more informative. It's slow moving but okay to listen to as background while you do something else: email and other computer stuff, in the kitchen, when out for a walk or run or exercise, driving, or just having a break. Details on how to call in to listen are on the original post.
It will be interesting to hear what the respondents lawyers highlight in court this week having heard the points highlighted by the petitioners lawyers.
The Judicial Review includes 3 petitions that were bundled together by the Justice for efficiency, because they are related, not something that either party requested.
Petition 1 consists of petitioners who are only physicians and nurses that have been impacted by the orders and lost their jobs.
Petition 2 consists of a petitioner who is a nurse who also has religious concerns that was impacted and lost her job.
Petition 3 consists of petitioners that are a combination of other health occupations and those with religious and other conscientious objections that were impacted and lost their jobs and are represented in court by JCCF (Justice Center for Constitutional Freedom).
Listening live to week 2, respondents PHO/BC Gov lawyers reasonsPublic
Dr. Z. Essak, - Vancouver, BC - November 29, 2023.
Having a telephone number to call in from anywhere in BC to listen to the court proceedings is great. Being able to clearly hear the dialogue between the lawyers and the judge and the questions.
I hope my colleagues and all doctors, GP's and Specialists, have a chance to listen to at least some of it. This week the respondents PHO/BC Gov lawyers are highlighting their reasons supporting the continuing orders on health care workers and there will be a reply from the petitioners to finish the week. There will be more on December 18 to 21.
The judge commented to the respondents lawyer, that while a lot of this context is interesting it may be of little importance to the nub of the decision he has to make.
Even then, it is interesting to hear. It may help answer questions we may have, including as health professionals.
Maybe we didn't read the news releases and briefings in such detail or completely? Is this how the health care system works? I'm sure many people hope their GP's and Specialists know all this stuff. But, I'm not sure that's true. The Doctors Of BC doesn't seem to consider it important for doctors to know the Judicial Review is underway and have not mentioned it in any daily electronic News Flash to physicians, even during in the past 10 days.
In the Order last month, on October 5, 2023 - the 21st Order since March 2020, not only are health care workers impacted, but also impacted are students and volunteers, "who were accidentally left off the previous order" and are required to be vaccinated.
Does the new mRNA vaccine for the XBB.1.5 variant of omicron have the same equivalent effectiveness as the original series? The respondents lawyer answered, maybe not. It is a vaccine against one of the many sublineages amongst sublineages of omicron continuously emerging. It may or may not be a dominant variant this season in BC and Canada. It may help with other similar sublineages though this is not proven. And the recent winter season in the southern hemisphere did not show the emergence of any significant variant or outbreak.
There is no mention of how does the protection compare to that of other non mRNA vaccines that may soon be more readily available, such as the NovaVax Covid-19 vaccine, that are traditionally manufactured vaccines, with a measured amount of viral antigen rather than the much higher load of antigens created with mRNA template vaccines?
Thursday morning will be interesting as the Court hears views on the effectiveness of immunity through infection and through vaccination and both. With replies to follow it will continue to be an enlightening week.
Are the coercive measures for health care workers, students and volunteers reasonable and fair?
To listen live call BCSC 1-778-725-6348 Vancouver, or toll free 1-844-636-7837 and enter Conference ID: 333 268 777#.
Justice Simon Coval "It still haunts me" the degree of coercionPublic
Dr. Z. Essak, - Vancouver, BC - December 27, 2023.
The BC Judicial Review of PHO Dr. Bonnie Henry's Orders wrapped up on December 21 with one further issue to be brought forward to the court on January 15, 2024.
Although, it may have been difficult for individuals to find the time to attend or listen to the court proceedings over 14 days, in the weeks leading up to Christmas, the importance of it should not be overlooked as it impacts our rights and freedoms, including individual pursuits to become and practice as health professionals, and individuals seeking medical and health care.
The Canadian Charter of Rights and Freedoms has been central to this case. In particular, two sections: Section 2 Everyone has fundamental freedoms, including "freedom of conscience and religion;" and Section 7 "Everyone has the right to life, liberty and security of the person and the right to not be deprived thereof except in accordance with the principles of fundamental justice."
The court heard how "security of the person" applies to, and common law recognizes, a right of bodily integrity: the right to self-determination (consent) to medical therapies and interventions; something that is clearly central to health care.
The court heard the respondent lawyers for PHO Dr Bonnie Henry cite several Supreme Court of Canada decisions that upheld the depriving of individual rights and freedoms.
The judge, Justice Coval said, "It still haunts me" the degree of coercion involved while calling it a choice. "What if it was a gun?"
Justice Coval acknowledged the lawyer for Petition 3 had previously decided not to argue Charter section 2 rights and rely solely on section 7 rights. He invited that arguments on section 2 rights be provided to the court on January 15, 2024 in no more than 5 pages and a reply of 2 pages from the respondent lawyers.
Over the course of the proceedings the lawyers for the petitioners have asked that, the Court as the judge of the law, provide a detailed decision instructing the administrative decision-maker on the necessity to consider Charter values and that reliance on emergency powers has limits that must be adhered to.
Justice Coval reserved judgment on the case.
Dr Henry Dec 2023 Judicial Review ...Public
Has there been any decision in the Judicial Review of Dr Bonnie Henry's Orders started in Dec 2023?
No judgment released yet in the Judicial ReviewPublic
As of today, February 28, 2024, there has been no judgment released yet in the Judicial Review. It is still pending.