Trudeau, Travel, and “The Science” | EP 281

He announces the mandates, essentially preventing millions of Canadians from boarding a plane or a train. For civil servants who have been working from home since the pandemic began, they needed to be vaccinated. It was just one of the most bizarre things. So not only did the Trudeau cabinet generate an unnecessary travel lockdown, depriving Canadians of one of their most fundamental civil rights, especially in a country of our size, but they did it and scrambled to find a scientific lie to justify it. And it was so far off based on the science that they couldn't even find a suitable lie. Then they magnified their error by calling an election. All of this was an instrumental attempt to gain more power on the election front because Trudeau was worried about being in a minority position and looking for a way to increase his grip on the prime ministership. Right, oh boy. It's no wonder no Canadian newspaper would publish that. That's hardly a story at all.

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Hi everyone, I was sent an interesting article about a week ago written by Rupa Subramanya. It was sent to me by two sources, one from Barry Weiss's Substack, which is where it was published, and also by Rex Murphy, who's one of Canada's foremost journalists. They were very impressed with it, the article, and thought it was important. So I read it, and I think it is important.

The article was called "Court Documents Reveal Canada’s Travel Ban Had No Scientific Basis." Now it was very interesting to me that Rupa had to publish this basically in an American news channel and sort of out of the way, although Barry Weiss's Substack is quite popular and she's also had a lot of difficulty getting the story folded up in the Canadian legacy news. It's a big story, and I put her in touch with the Telegraph in the UK and they're going to publish by all appearances a variant of the story.

So it's a pretty sad bloody condition, let's say, that a big Canadian news story about the treacherous deceit of our federal government is unable to attract any purchase in the legacy media outlets. It's stunning in some sense.

In any case, what Rupa revealed was that the Trudeau government put in what were among the most stringent travel restrictions in the western world as of August 13, 2021, and claimed scientific justification for doing so. But in fact, not only was there no scientific justification whatsoever for doing so, there weren't any people who were making the decision who were qualified to determine whether such scientific evidence actually existed.

So despite the fact that everyone who objected was pilloried as a public menace, as well as however else they might be pilloried, it appears as though all of it was smoke and mirrors and sheer bloody instrumental politicking. I heard the same thing about operations at the provincial government levels in Canada from very reliable sources: that all this so-called reliance on science was complete bloody nonsense.

What was instead happening was that governments were conducting opinion polls like mad, which is not necessarily a bad thing in itself, but often is, and ruling on that basis, deriving policy on that basis. So on the basis of public fear and whim, and then passing that off as scientific, and that's pretty horrible, or maybe it's really horrible. And that was Rupa's claim in some sense.

The story also covered a lawsuit brought against the government by a couple of plaintiffs who we have with us today, Carl Harrison and Sean Rickard, who are represented by a lawyer. That lawyer is Sam Presvolos, and he's here today too. So he's also going to talk and then featured as well commentary by Bruce Pardee. Bruce is a law professor at Queen's University who’s been very interested in, well, let's call it rule of law by precedent, you know, good old classic English common law essentially.

So he's going to give a broader overview of the whole legal situation. I’m going to start with some bios, and then Rupa is going to come in and tell the story and weave the plaintiffs and their representative lawyer into the story. Then Bruce is going to comment, and we'll all chime in probably too much.

So first, Rupa Subramanya is a freelance columnist for the National Post Canada and Nikai. Her previous work has also appeared in the Wall Street Journal and Foreign Policy. She resides in Ottawa, Ontario. Bruce Pardee is a law professor at Queen's University and is the executive director of Rights Probe. He's a critic of legal progressivism, social justice, and the expansive managerial state at the front lines of the culture war which is raging madly inside the law.

Dr. Pardee has taught at law schools in Canada, the U.S., and New Zealand. He's one of the co-creators of the Free North Declaration, a public petition and movement to protect civil liberties in Canada from COVID-19 irrationality and overreach. Sam Presvolos, the representing lawyer, founded Presby's Law LLP at 25 years of age and serves there as managing partner. He specializes in corporate commercial and real estate litigation, and has successfully represented clients before the Superior Court of Justice, Divisional Court, Court of Appeal, and Federal Court of Canada.

His peers ranked Mr. Presvolos as one of the top 100 lawyers in Toronto in 2021 in Post Magazine. Carl Harrison, one of the plaintiffs against the federal government, has opened, operated, and sold many successful restaurants, bars, and music and comedy venues. In 2011, he was named one of the top 20 most influential people in the UK hospitality trade. He has found success as a real estate investor and developer since 1987 and has been involved in the travel sector since the year 2000. He is a co-founder and co-owner of a well-known family holiday brand operating in the UK, France, Spain, and Ireland.

He was also a co-founder and investor at Seattle Seawolves, a team which took the silverware in the first two seasons of Major League Rugby in the U.S. He's also been an occasional contributing writer for the UK satirical magazine Private Eye and has co-produced a series of award-winning short horror films. Last but not least, he has campaigned for reform of abusive practices in the UK pub sector.

Finally, Sean Rickard is a 55-year-old entrepreneur and small business owner who resides in Pickering, Ontario. He owns and operates a contracting business specializing in exterior aluminum and vinyl siding and eaves work on residential homes. He founded the company back in early 2013 and built it from the ground up. He's a British citizen and a permanent resident in Canada. Mr. Rickard came to Canada on a vacation to explore when he was just 20 years old and fell in love with the country. Mr. Rickard also had a fishing and outdoor TV show back in 2005 to 2007 which aired in Canada and the U.S. on OLN, CTV, WFN, and Global.

Welcome Rupa, Bruce, Sam, Carl, and Sean. Thank you very much for agreeing to talk with me today. Rupa, why don't you start filling us in? Tell us about the story, and then fill in the story and bring these other characters in.

Okay, well thanks, Jordan. Thanks for having us all here. It really is a pleasure and a real honor. So I will quickly summarize the story for our viewers and our listeners. The Trudeau government always claimed that COVID-19 policies were based on the science and the evidence. They kept telling us they were consulting the experts, the scientists, and they were following the signs and the evidence. But now thanks to the civil suit brought by Carl Harrison and Sean Rickard, we've seen inside the guts of one of the key mandates of the federal government, implemented by the federal government, which is the vaccine mandate for travel.

It proved so incredibly destructive and prevented millions of Canadians from traveling to even visit sick relatives, and you couldn't even board a train for domestic travel purposes. While pouring over hundreds of pages of testimony and cross-examination, thanks to the brilliant cross-examination by their attorney Sam Presvolos, it becomes crystal clear that the mandates were going to happen and that the bureaucrats had to scramble to find some kind of a scientific rationale, which they weren't able to do just a few days before the mandate kicked in.

So the question is, why did Trudeau do this? If you remember, the Prime Minister was in a minority in the House of Commons, having lost his majority back in 2019 because of corruption and cronyism scams, and he was desperate to regain it. Vaccine mandates proved to be the perfect wedge issue. That's what everybody was saying at that time, this is in the fall of 2021.

Now, why for travel? Well, one crucial reason is that it's the only sector apart from the federal workplace that comes under the federal government's powers. In other words, this was the only place where Trudeau could flex his muscles and impose a vaccine mandate, and that's what he did.

So your claim here, if I have it right, just so everyone listening knows, is that Trudeau, who was struggling to maintain popularity to maintain his government, picked a divisive wedge issue because it was a divisive wedge issue, imposed it on Canadians, and then attempted to insist that it was justified by the science.

Yeah, there was no—it's very clear, the scientific rationale is lacking, at least based on the cross-examination of the key government witnesses in this case. So he risked splitting the country apart and pitting people against each other personally and socially to facilitate his government's grip on power. That's what it appears to be at this point.

Okay, so sorry to interrupt. I just wanted to clarify that. So alright, so you started investigating this. Why?

Well, I was actually aware of the case, but I really had no entree into it until through a mutual acquaintance, one of the applicants reached out to me, and then I became aware of the case and the background and their fight against the federal government over the travel mandate. Thanks to their litigation, the documents eventually became publicly available. Ironically, I must point this out that in response to my piece telling the story of Sean and Carl's legal battle, the federal court, in a very unusual move—and this is what I've been told by many people—made it easier for the public to access the documents by tweeting about it and they made a link publicly available.

I have to say that some of the cross-examination really reads like a John Grisham novel. You know, you've got the secretive government panel within Transport Canada which is tasked with crafting the mandate apart from its head, who's a career bureaucrat. She has a degree in English literature. We don't really know much about the others. There are about 20 people on this panel except she names one individual on this panel, but who seems to have some kind of a public health background. When I reached out to her, she said she has a master's in science, but she refused to tell me what that was in. For all you know, it could be astrophysics, but we don't know that. The key point here is none of these people had a background in medicine, epidemiology, infectious diseases, virology, you name it. They were just there to provide a cover for the mandate.

And you talk about Jennifer—is it Jennifer Little?

It's Jennifer Little, yes.

And she was the one who was in charge of this, is that correct?

Yeah, she was the Director General of this group of civil servants you're talking about.

They're all civil servants. Okay, why did they regard it as part of their duty to provide a cover story for the politicking of the Liberal government? I thought they had a duty to the public fundamentally, so why were they roped into this and why did they agree to it?

Well, I mean, this is something that you would have to ask them, but my guess is, you know, they were just doing their jobs. I guess, you know, you have the secretive task force within Transport Canada and they really had no good scientific rationale and they were looking for one. They were scrambling for one days before, literally less than 10 days before the mandate goes into effect and, you know, including hoping that the Public Health Agency of Canada (PHAC) would come up with something, which they didn't. And Jennifer Little, the bureaucrat that I refer to with the bachelor's degree in English literature, repeatedly said the decisions were made at very high levels and these were people senior to her, invoked cabinet confidence and refused to answer who exactly ordered the mandates.

This was during cross-examination?

Yes, this was during cross-examination.

And she has the right to keep that information secret if it’s come from what? From a high enough legislative source?

I would guess so. I mean, this is not my area of expertise. I don't really know the law governing civil servants, but she certainly repeatedly invoked cabinet confidence. When she was asked questions on who exactly ordered the mandates, it became pretty clear, I guess one could infer from this the decision was taken either by the Prime Minister himself or the cabinet as a whole.

This confirms what many had suspected all along, that when the Prime Minister introduced the federal TR mandate, both for travel and for the civil service, and called a snap election two days later, on August 13, he announces the mandates, essentially preventing millions of Canadians from boarding a plane or a train. For civil servants who have been working from home since the pandemic began, they needed to be vaccinated. It was just one of the most bizarre things.

Okay, so let me stop you there and summarize. So not only did the Trudeau cabinet generate an unnecessary travel lockdown depriving Canadians of one of their most fundamental civil rights, especially in a country of our size, but they did it and scrambled to find a scientific lie to justify it. It was so far off based from the science that they couldn't even find a suitable lie. Then they magnified their error by calling an election and all of this was an instrumental attempt to gain more power on the election front because Trudeau was worried about being in a minority position and looking for a way to increase his grip on the prime ministership.

Oh boy, it's no wonder no Canadian newspaper would publish that. That's hardly a story at all.

And, Jordan, you know, if I may say this, you know, if this really had been about saving lives, why didn't Trudeau just impose the mandates and campaign on them as a fait accompli? That would have been the right thing to do. Instead, he cleverly used these mandates as a wedge issue and, unfortunately for him, he managed to just eke out another minority government. But in the process, he ended up dividing the country; he ended up demonizing and marginalizing millions of Canadians who were unable or unwilling for a range of different reasons to get the vaccine.

Yeah, well, and a huge part of the reason they were unable or unwilling to get the vaccine was because they didn't trust the Trudeau government at all. And so there would be all sorts of people, and some of them, I suppose, were conspiratorial in their inferences, but many weren't, who thought there's something fishy going on here. I don't trust this a bit. And those were all the people who were demonized as, you know, radical anti-vaxxers.

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We're going to turn to Carl Harrison, who's taken a lawsuit against the Canadian government for reasons related to the story that Rupa has been telling. So, Carl, perhaps you can start by filling us in on what you're doing and why.

Yeah, thanks. We're taking—we've made an application for a judicial declaration essentially in the federal court in relation to the Canadian government's discriminatory mandates for requiring a vaccine as a precursor to traveling. We filed that in December after a lot of thought and consideration over previous months.

Separately, I came to this differently than Sean. I came to this throughout the summer months in April of 2021 by—I was listening to the Prime Minister of Canada saying that there would be a vaccine for any Canadian that wanted one. By the time we got to the fall, I had a man watching a man on television as the Prime Minister of Canada talking about five to seven million of his fellow Canadians as people who were racists and misogynists, and people who were taking up space, people who might not be tolerated, which is language—I mean, I'm coming up 60 years old, I've not really heard that kind of language from a Prime Minister of many Western democracies until recently, and I certainly wouldn't have expected it from a Canadian Prime Minister, but there we go.

During the summer of 2021, the Prime Minister decided he was going to dissolve Parliament, go for an election, and try to get reelected in the fall. Clearly, he had, as you said earlier, identified with his advisers, whoever they are, a wedge issue based around people's health choices, and he thought he could polarize the population and use it to his advantage.

Why did you feel so strongly about this to take such dramatic action? Because obviously most Canadians, even within that five to seven million number that you described, grumbled about this but didn't do what you did. Why did you identify this as so important and why were you willing to put yourself at substantial risk financially and in terms of your time to do something about it?

It is—not a difficult question to answer. I mean, when you see this kind of policy implemented by governments, there are three things you can primarily do: you can accept it, you can fight it, or you can run away. It's a blend of those actions, and I think if you're able to fight these things, if there's something you can do, then you should. It's good citizenship.

I'm a recent immigrant to Canada, I'm a Canadian citizen and a UK citizen, and I brought my family here in 2009. I fell in love with Canada in the 1990s. As a recent immigrant from Europe, I feel it's a part of citizenship to stand up against these kind of issues. So running away wasn't an option for us; accepting it wasn't an option. So how can we fight it? We're not in politics. The opposition parties throughout the summer of 2021 were weak. I mean, Erin O'Toole, I think, just demonstrated an extraordinary lack of vision and weakness throughout the summer of 2021 by seemingly going along with Trudeau rather than actually opposing him.

Whilst he was opposing him, his polling was doing well, and as soon as he started to go along with him, he plummeted and subsequently lost. So I thought, what can I do? I started to think about legal action, and at that point, I came across Sean, who I saw on Twitter, you know, the global town hall. I saw Sean there, you know, saying some of the same things that I was thinking and starting the process of raising money. I reached out to Sean, I thought I could contribute from my own legal experience in the past, I thought that was something I could usefully add, and I thought I could usefully add funding.

I've been in business a long time, so I have some resource, and I thought that's something else I can do. I couldn't politically oppose at that point; we couldn't protest. We can go and do direct action and protest with other people, and Canadians should always protest where things are wrong. Coming from the UK, we're used to protests. As you know, I've been there a lot, I think, to the UK, Jordan, and protest in the UK is seen as something that definitely has to be done.

So taking part in that is something we can do, and legal action is something we can do. I came together with Sean in the fall of 2021, and I’ll let Sean pick up there because he can explain how we came to work with Sam. I think it's probably helpful.

Sure, Sean, over to you.

Yeah, hi, and thank you again for having us all on and helping us get this story out. As you said, the Canadian legacy media have essentially ignored this story completely, which is mind-boggling and then also deeply disturbing.

But I guess this whole process kind of came about for me, as Carl said in September when I heard this sort of disgusting, divisive rhetoric coming out of our Prime Minister’s mouth when he was campaigning. And the further we went along and the more this whole threat of banning the dirty unvaccinated or those who refuse to be injected from getting on a plane or a train and even leaving the country just absolutely terrified me.

I mean, to me, he resembled a sort of a narcissistic, sociopathic tyrant, and it really troubled me. I felt that I had to do something about it. I like to travel; I feel it's my right to travel. I'm a free man, and for somebody to come along and take that away, with no recourse, it was deeply disturbing to me.

So I immediately started putting the feelers out there to various people. I spoke to a couple of politicians—most of them were useless—and eventually I spoke with somebody and I was given Sam's name. Literally, in the same night, I had a conversation with one person who introduced me to Sam. Sam and I spoke, and that same night I started a GoFundMe campaign on a fundraising campaign on GoFundMe and started tweeting about it.

I've never used Twitter before; I had four followers. In six weeks, I went to 7,800 followers, and during that process, we were gaining a lot of traction—a lot of people's interests—and I began to realize just how this had affected, like Carl said, six to seven million people's lives. People unable to go and visit family, that type of thing, and this is before it even happened.

So we got the ball rolling. I spoke with Sam; we hit it off immediately, and he was as passionate about this as I was. We came up with a vague strategy of how we might do this. The first thing was obviously to start raising some money, and through that process on Twitter, I started getting messages from people. Like you do as your followers grow, people start sending you messages—some helpful, some not, some supportive, some not—and I got a couple of messages from Carl.

I was kind of fielding through all these messages, and eventually, he sent me something that resonated with me. I found out he was in British Columbia, and so I messaged him back a couple of times. We spoke to each other, you know, through direct message, and then we arranged to have a Zoom call with Sam. That was the first time that all three of us spoke as a group. Carl very kindly at that time, again as passionate as we all were about putting a stop to this tyranny—and I don’t use that word lightly, but that's exactly the way we perceived it.

Why did you two have enough confidence to go ahead with this? Now, I mean, at that point, people who were opposing the vaccine mandates—I’d like to know why it bothered you so much, what the vaccine mandate meant to you personally, but then why you were able to presume that you knew well enough better to risk bringing a lawsuit against the Canadian government. Did you have support from your family? I mean, obviously, no, you didn't have support from your family. You had support from each other. Who supported you? Why did you have enough confidence to do this?

It's a very good question, and to be honest, to this day, I don't know why I did this. I was just very angry, and I felt somebody needed to do something. The politicians weren't even speaking up, as Carl pointed out. You know, Erin O'Toole, what—I mean, what a wet blanket he ended up being—just a complete rollover. They saw these atrocities—and I call them that—going on, and nobody spoke up; nobody said a thing.

So I felt that I don't know why I just felt compelled to do something.

How helpful was it? How helpful was it to have Sean to talk to about it? I mean, now there's two of you and not one, and so that's twice as many people. Was that made a huge difference?

I mean, we've been a support group for one another since day one. We've all made huge sacrifices; we've all lost friends throughout this process. You know, certain family members begin to think you're a bit crazy, but we've always had each other, and we were so in line. It was like it was meant to be.

I said this the other day in Rupa's show; you just said something very terrible there. You know, as far as I'm concerned, that you lost friends and you were subject to the disruption of your familial cohesion. One of the things Rupa pointed to in the beginning part of this conversation was the fact that Trudeau found a divisive wedge issue and exploited it for his own purposes. So what does that mean? We want to make that concrete because that's just abstract.

Yeah, well, it means that your friends turn your back on you, or vice versa, and that now you're at the throats of your family members, and that's how civil society decays. The story here—and this is why it's so absolutely appalling that the Canadian legacy media won't pick it up—is that Trudeau was willing to sow that kind of personal-level discord to say nothing of the utter economic and financial catastrophe that the policies produced, to do nothing but not even really manage to cement his grip on power.

I think that it's quite possible that Trudeau and the government, in doing what they've done, have very badly misread the numbers. If nothing else, I think they maybe thought that people fell into one of two counts: either they would be people that would be pro-mandates or people that would be against them. I think it's much more nuanced than that, and certainly my experience of doing this exercise has been that, well, yeah, okay, I've lost a couple of friends, but I've got a lot of family support for doing this and a lot of support from people locally and some surprising people.

I think there's an element of a lot of folks who disagree with it, and they sort of go along with it, keeping their head down. There's sort of an element of Canadian politeness almost. You know, and I think that's a challenge going forward for Canada as Canada perhaps. I mean, maybe Trudeau's done us all a favor by pushing us toward the end of what some might see as a political adolescence.

I was thinking, when Trudeau called the truckers misogynists and bigots and said that they were fomenting a rebellion in Ottawa—let's say financed by mega-Republicans, of all the preposterous things—I thought, because I was down in the States when that was happening, talking to Americans and telling them that this was the story, and they were like open-jawed in amazement, including the Democrats, that anyone would ever possibly believe that.

Then I thought, well, you better give the devil his due. Why would Canadians be willing to fall for that, let's say? Then I thought, well, here's the story, man: for 150 years, 150-odd years, we've really been able to have a reasonable trust in our political institutions, all three political parties from right to left, governed with some degree of credibility and decency and predictability.

Then the legacy media did their job being responsible critics. You could even say that of the CBC for many years. The education system was reliable, and the legal system wasn't taken over by DEI warriors and so forth. Now, all that's—or a lot of that has changed—and so now Canadians are being asked by their Prime Minister to accept one of two stories: either the truckers, for example, were misogynists and bigots, hell-bent on destabilizing Canadian democracy, or you could no longer trust the government in a fundamental sense, or the legacy media—and God only knows how much of the education system and the courts.

In some sense, for sensible, conservative people, the logical choice there was to assume the lesser devil and think that the truckers and the anti-vaxxers, so-called, and so forth were a fringe misogynist and bigot group, and that everything in the background was really running as it should be. But as Rupa's story indicates—and as I said, I heard exactly the same story several months ago from high-level consultants to provincial governments across Canada—that they were doing the same thing, ruling by poll, post hoc, justifying it by science.

Alright, so Sam, you got involved in this. Tell us your story and flesh out what's been happening on the legal front and where this is going to go. I want to return to Carl too about the funding issue after that.

Sure. So good afternoon, and thanks for having me on the podcast. This is very much terra nova for me. I’m not a constitutional lawyer; I never saw myself getting involved in a constitutional case of this magnitude. I think I've said before elsewhere that constitutional law was my lowest mark ever in school, and yet here I am at the forefront of this challenge.

You know, I think like my clients, like Carl and Sean, I also felt compelled to do something. If you see there's a problematic trend happening, and you have a means to affect some sort of a change, and you do nothing about it, I think in your own way, you're contributing to the problem. Everyone has a different threshold of getting involved, and quite frankly, my threshold—I sort of crossed that threshold at the mandatory hotel quarantine, which is a policy that I never would have imagined witnessing in a Western democracy. The idea that somebody would have to quarantine pending a result of a virus that, quite frankly, we've seen in some iteration before was frankly disturbing to me.

That's really what propelled me, and I was very fortunate to get connected with Sean, and then again with Carl. It's true, Sean, Carl, and I in many ways have become our own little family, and we've been very fortunate to be supportive of one another in what has been an extremely grueling seven to eight months since this case really started.

I suppose you made it a present to the government, and we're still in the midst of it, and here we are in August, and I'm, you know, just today submitting my final materials to the court for the application. It's been an extraordinary process, and we've learned some very extraordinary things along the way.

Can you just—no one listening knows how a case like this proceeds. So could you walk us through the basis for the case, the nature of your challenge, how the government lawyers are resisting this, and then lay out the story of the court battle and where it's headed?

Sure. Fundamentally, there are sort of two ways in which litigation proceeds to the court system. The one way is an action, and an action is sort of what most people come to know in TV courtroom dramas, where you have a judge and you have a witness, and there's this idea that people are yelling and cross-examining and they're getting evidence orally, which is what we call viva voce evidence.

That's not what's happening here. This is proceeding by way of an application, and an application is largely a paper-based record. So what happens is people put in evidence to the court, and they do that by way of an affidavit. You can think of an affidavit as a story, and you get stories from the applicants, like Sean and Carl, about how the mandates have infringed their charter rights.

You also get stories—I'll just call them a little bit more informally—from experts who talk about the science and different policy considerations. Each side has to produce their evidentiary record, which is, as I mentioned, exclusively done by paper. Then what happens is we participate in what is called the cross-examination.

In an action, the cross-examination is done live in front of the judge, and the judge is there to assess the credibility of the witnesses and await testimony. In an application, which is what we're doing, that is done privately in a board room with a court reporter. There’s endless hours of cross-examinations based on what people have said in their affidavits, their story.

So, a lot of the evidence that Rupa's referring to came out in the process of that cross-examination because, as you know, our system or our justice system is premised on the adversarial context. The idea that if competing evidence is tested, the truth lies somewhere and the truth will come out.

We spent May and June literally two months just exclusively in cross-examination. We then take the affidavit records, and we take the cross-examination transcripts, we file that with the court, and then we appear at a hearing. In that hearing, we make reference to the evidence both in the affidavits and the expert reports and also in the cross-examination transcripts, and it's just submissions from lawyers in front of the judge.

Okay, so what's the nature of the challenge? The government put in these mandates, and they were mandated and required, and you're objecting to that. What exactly is the objection, and why are you even vaguely allowed to do this, let's say?

Well, I should hope we're allowed to do this, or else we have a much larger constitutional crisis than I currently think we do. But, you know, first and foremost, there is a prima facie infringement of Sean, Carl, and those Canadians who are not vaccinated, a prima facie infringement of their section six charter right, which is the right of mobility.

I think it's one of the most fundamental rights that we have in the charter. It goes to the very essence of what it means to live a dignified existence, the notion that a man or woman can get up and move about their country and leave their country at their will. That's been directly engaged in this charter challenge, in a context, quite frankly, that I've never seen before.

A lot of section six cases deal with issues like extradition and deportation; I've never seen a case like this, that a government policy in reference to a public health mandate has had the effect of preventing their own citizens from moving between provinces or from leaving their country. In fact, I can tell you right now, I have not found a case like this other than a case in Newfoundland in the context of the COVID-19 pandemic.

The second thing, which I think is also very novel here, is the government has effectively created Sophie’s choice. They're asking Canadians to do a little bit of horse trading with their charter rights. You cannot simultaneously exercise your right to travel while also exercising your section seven right to protect your bodily autonomy.

What do I mean by that? You need to make a decision. You are either going to get on a plane and get vaccinated, or you are not going to get vaccinated, and you're going to forfeit your right to use the federally regulated transportation system. I think that's actually constitutionally unprecedented. I've never seen a scenario where a government policy has created such a direct conflict that it coerces you to choose one over the other.

Let's be clear about that. Sean and Carl were coerced into not traveling because they wanted to protect their decision-making over what is an inherently private choice, i.e., vaccination. Both of those issues are very much engaged, and it's on this basis that we've brought this application.

Okay, and so what's the—the government’s counterclaim now? Hypothetically, the emergency was such that the science indicated that the government could suspend Canadian charter rights. What kind of evidence do you need? When can you suspend rights, and when you suspend rights, by what principles are you allowed to suspend them?

Well, we were on a quest to answer a lot of those questions. As you know, obviously no right is absolute. If the government has a compelling objective such that they may need to infringe a charter right, they are entitled to do so if they come to the table with the right type of evidence. There is a reverse onus; once my clients show that their rights have been breached, the government then has to go to court and convince the court that they were justified in doing so.

That's where this fight is really happening: what is the justification? What is so compelling about the risk of the unvaccinated flying that you believe it is permissible in our democratic society to force unvaccinated people into making the decision that I just described?

I can tell you that having been living this case for the last seven months, the approach the government has seemed to take is the casual application of general scientific principles to the transportation sector. They reason that because vaccination is generally good and desirable, everybody should do it, and because it provides some sort of transient benefit, you should do it. It's generally desirable; it's good for public health policies, and we're going to use the means available to us to encourage and incentivize that behavior.

Well, there's a difference between should and must, let's say. Not least! And then, of course, we have the problem, Rupa pointed out, which was the scientific evidence for the utility of the travel ban itself was apparently entirely lacking.

So at the moment—as I don't know how this is playing out in court, but in the context of this conversation and other conversations I've had that are similar—the evidence, legal and scientific on the government—and let's also say moral, shall we?—on the government side seems pretty, well, how about we call it appallingly and unprecedentedly weak.

Well, it's interesting that you use the word morality there because I actually, in cross-examinations, I did ask, or the individual who's responsible for the development of the policy, whether there is an ethical consideration behind the vaccine mandate. The answer is that there is not, which is astounding because there's actually an ethical framework—now, it gets better—there's actually an ethical framework available by the government online that is supposedly used to guide ethical decision-making in the context of the pandemic.

So that wasn't used either?

No.

So if we tried to give the devil his due—let's say I’ll speak as a critic of Rupa here—her claim fundamentally is that this was nothing but blatant, cynical, narcissistic politicking of the lowest order. We might say, "Well, no, that's probably an oversimplification; there must have been some other justification generated, like in good faith, and then also post hoc as at least as a cover-up."

But essentially, in some sense, what you seem to be saying is that you've uncovered very little evidence of any of that in the cross-examinations. So even as a scam, it wasn't a very good one.

There is evidence that, you know, vaccines can help protect against developing severe outcomes and death. The question is, how compelling is that evidence? How long does that protection actually last? But the bigger question is, why does that matter in the context of the transportation system when you're talking about the fact that travel contributes one percent or less, by the government's own data, to COVID-19 transmission, and somehow this is the targeted industry that we're going to focus on and impose a vaccination requirement as a precondition for travel?

Why isn't anyone comparing that to the general epidemiological situation in the community? Here's a surprise for you: nobody did that. Nobody looked at—nobody looked to compare—what's the positivity like in different settings in the general community? Because if you're not traveling, where are you? You're at home, you're in the supermarket, you're watching soccer, you're watching a basketball game—all of which, by the way, you can do without being vaccinated, but you can't travel, which is also one of the safest places to be.

I mean, we have an expert who has testified that the filtration systems in modern aircraft are better than the filtration systems in operating rooms.

We'll get back to more with Dr. Peterson in just a second.

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Okay, so you just dropped two bombshells there. Not that there haven't been any others dropped during this conversation, but two I'm going to highlight them. The first is that by the government's own admission, travel was a vector for the transmission of less than one percent of the virus.

So now we're talking, at best, about a one percent probability of contracting a disease that has something approximating a two percent mortality rate, if that, and that's particularly true only for people who are extremely ill or extremely elderly who have other compromising health conditions. So it's a negligible risk of a negligible risk, but that justifies charter rights suspension.

Then you said something equally appalling, which was that anyone with any sense would have rank-ordered transmission risks right across all the possible—oh, let's say across the range of 95 of the social interactions and activities that Canadians engage in. We would have rank-ordered that in terms of danger. One of the things we would have found out, by the way, is that locking people up together was probably a dangerous thing to do rather than a good thing to do.

But in any case, that's what you do at the policy level, right? Here's the dangers, rank-ordered; let's knock them off from the top down. But you said none of that happened either. There was no methodology for doing a comparative analysis, and that’s reminiscent to me of the fact that we locked everybody up at home and we blew apart the supply chain. We never did any analysis whatsoever to find out if the economic consequence were going to be more devastating physically, psychologically, and in the long term than the epidemic itself.

And they're certainly going to end up being far more devastating than the epidemic, I think by all evidence generated to date.

So, Bruce, maybe we'll turn over to you for a bit to get a bit of an overview, and then I'm going to go back to talk about the funding situation, and then we'll go back to Rupa. Bruce, two questions come to mind for me right away. The first is: if the government, let's say it more clearly, if the mandarins in the Trudeau cabinet violated the charter for the purposes of their instrumental politicking, how serious is that offense in legal terms, and what is the recourse?

Right, well, let's back up just a step before you get to the charter. Even there's a principle in governance, which is this: governments can't just create any policies that they like. There's a difference between the government and the legislature, and anything a government does in terms of making rules, it has to have authorization to do it in a statute that the legislature has passed.

In this case, in the case of the airline mandate we're talking about, the Aeronautics Act gives cabinet and the minister of transportation the power to make all kinds of rules about all kinds of things that deal with flight and the airline industry. But that's not an open-ended discretion. The fact of the matter is that governments make policies that are politically motivated all the time, and they're allowed to do that as long as they can fit them within the authority that they have in a statute.

The problem for the government in this respect is that the rationale that they’ve given, if they gave one at all, does not fit within the authority that the Aeronautics Act gives. So in other words, the minister is allowed to create interim orders that have to do with the safety of the airline industry, the passengers, the crew, and so on, and the premise of a vaccine mandate is that if you have the vaccine, then you won't get infected.

If you don’t have the vaccine, then you will get infected. But in the case of this vaccine, that has really never been the case. It was pretended to be early on, but that has never been really the official claim, at least from the manufacturers of this vaccine. So if you don't have that excuse, if the vaccine will not prevent infection, then what else do you have?

So is there—okay, so there's two issues here then, I think that you just delineated. One is that, correct me if I'm wrong, it isn't obvious that the Trudeau cabinet had the proper governmental authority to impose this mandate because it exceeded the purview of what would be generally acceptable practice on the legislative front. So it was an overreach of power independent of the fact that it violated the charter. Have I got that right? Just put aside the charter first.

Sure, you basically have it right. Just on the basis of pure authority and the way government works: we have separation of powers. Yes, governments and legislatures. Now I know to most people those two things will look like the same thing because the same people are heading both of these branches, you know, the Prime Minister sits in the House of Commons and the cabinet does as well, and they seem to run the show in the legislature.

But they're two different things, and the legislature must pass a statute that gives the authority to the executive branch, which is what the cabinet heads, to make certain rules. That authority is limited according to its terms, and those terms in this case are you can make rules about safety, but the problem is that if you don't have the prevention of infection as one of the characteristics of the vaccine, then the next question is, well, okay, but then what's the safety thing you're doing?

Well, Rupa and the plaintiffs and their representing lawyer have already made the claim that the evidence on the safety front not only wasn't there to begin with but couldn't even be scrounged up post hoc.

So that seems absurd on the face of it.

Well, right, okay. So, if I may, what Rupa's article was about—and what the cross-examination managed to achieve—was essentially an admission that there wasn’t really any solid scientific recommendation from the health and science people to the transport people that this ought to be done.

I think that cross-examination was very well done, and it might be interesting just to read you a very short sentence from Jennifer Little that Rupa was talking about in her cross-examination. Right? So the question was: Are there any emails, any briefs, any reports from Health Canada or public health recommending the implementation of a mandatory vaccination policy for travel? After a long pause, the answer was this: I do not recall a document from the Public Health Agency or Health Canada to Transport Canada recommending that Transport Canada take this approach.

Well, in other words, there was no solid written recommendation to do this.

Right.

Well, that sounds clear enough. So that it’s not even a matter of opinion, right? Because we can always bandy about the objection: "That's opinion."

Rupa, you have a comment?

Yeah, just to quickly jump in here, Jordan. Just picking up from what Bruce was saying: the damning email exchange that I mentioned in my story is about a senior Transport Canada official who is emailing his counterpart at PHAC and asking this individual: "Look, the mandate's going to be going into effect in a few days; we need some scientific rationale, some scientific evidence as soon as possible." He doesn't hear from this individual for a few days. The clock is ticking, and he presses her and says, "We need something fairly quick, so please could you get something to us soon?"

She eventually responds to him, and it's just generic homilies about how vaccines are good for you; you should get vaccinated and that we believe that vaccines prevent severe disease, and so on and so forth. The question is, what does this have to do with the transportation sector? How is it preventing transmission? How is it doing—how is it specific to the travel sector? That's the question.

I will also tell you one more thing that I couldn't go get into my story. Again, this goes back to Jennifer Little. She's asked about the implementation of the mandate, and she says, look, had we done—had we implemented this mandate when 50 percent of eligible Canadians had been vaccinated, it would have created, to use her own words, chaos in the system.

If this were really about public health policy, shouldn't vaccination have been the primary consideration? But what they do is they wait till 80% of Canadians have been vaccinated, where a high number of—which is a high percentage of Canadians are vaccinated—to implement a vaccine mandate, which is just extraordinary.

So, and I agree, and just to finish off this thought, to get back to this idea that the rationale—let's just give them the benefit of the doubt. Let's say that the actual health-based scientific rationale is, as Rupa alludes to, that, you know, vaccines are generally a good thing and that having a vaccine mandate will incentivize people to get a vaccine when they wouldn't otherwise do so.

That is—it’s not about being on the plane; it’s about the fact that people who want to be on a plane will have to get vaccinated. Okay, here's the problem: if that's the rationale, then that is not about the safety of air travel, and that means that is not an order authorized under the act.

Uh-huh.

So that's the legal issue.

Well, the moral issue might be, well, if you have to use compulsion, then maybe that's a sign that your policy is ill-formulated.

And also I would say from an epidemiological perspective or in a psychological perspective, in order for that argument to be credible, you'd have to have documentation showing that if you added compulsion to the vaccination process, that that would actually produce less resistance to the vaccine rather than more.

And that evidence would be very hard to come by because there’s a certain number of people that, as soon as you force them to do anything—even if it's in their own good, for their own good—even if that's documented, the mere fact that you're forcing them is going to convince them to tell you to go to hell, and I'm for one very happy that there is a minority of people like that.

So, that the evidence—I don't think there's any good evidence for the use of compulsion in public health, or at least there's no evidence suggesting that policy based on compulsion shouldn't be regarded as inferior to policy based on rational dialogue and, let's say, positive motivation and consensus, which is a much better grounds for what would you say the consent of the governed.

How about that?

So can we turn, Bruce, to the charter issue then? Have you elaborated out on the first one enough?

Well, yeah, sure. So the—as Sam alluded to, this weighing up of rationales will take place under a section one analysis. You'll get the section one only after the breach of the charter right—in this case, section six has been established—and so I would say in this case, the cross-examination is terrific for the purpose of that section one analysis.

Okay, tell us about—tell us what a section one analysis means.

Right, so section one analysis basically says, "All of the rights and freedoms in the charter are subject to reasonable limits." If the government can demonstrate that the infringement of the right is justified in a free and democratic society, then we're going to say okay.

In order to show that it's justified, the government has to show that the problem that they were trying to solve was serious enough that it justified these measures, that they chose a proportional way of doing so, that it caused an infringement as little as possible under the circumstances and so on.

To Sam's point, charter rights and freedoms are not absolute; and of course, they're not. Section one over time has shown to be a pretty large gate, wide enough for the government to drive a truck through sometimes.

Yeah, well, Brian Peckford, a former Premier of Canada and one of the founders of the charter, has vociferously objected to the government’s use of section one, saying that he knows perfectly well, as a consequence of discussing the issue with the people who designed the charter to begin with back in the 1980s, that none of them intended that section one be used in a circumstance as trivial and uncertain as this one.

But, to give the courts in this particular moment the benefit of the doubt, that's not actually what section one says. I mean, if section one had been intended to apply only in the most extreme existential emergency situation, like it could have worked that way, if that is what it had said.

But the way it is worded, it’s at least possible to interpret section one as giving pretty loosely goosey leeway for figuring out whether or not it's justified in any particular case.

Yeah, well, maybe section one needs to be revisited in a really serious manner. Listen, the whole charter needs to be revisited, but unfortunately, we have created now such an onerous amending formula that that becomes almost politically impossible to do. And even if it wasn't, I'm afraid that the political circumstances right now are such that if you opened up the charter in the constitution, you'd have a good constituency size constituency on the other side trying to make things worse from our point of view.

Right, so okay, so let's talk about the courts momentarily. So Bruce, I know you have some concerns about the politicization of courts in Canada, the politicization of the legal enterprise, and the judiciary. You're certainly not alone in that. Do you have any faith that this case can receive a fair trial?

Oh, I would like to think so. Sure, yes. Listen, we have a lot of good judges in this country, a lot of very fine jurists with terrific legal minds. Yes, we have seen signs of what I would say ideological bias. For example, just let me give you one small example: at his first press conference when he became the Chief Justice of the Supreme Court, Chief Justice Wagner held a press conference, and he was asked by a reporter if he agreed that the Supreme Court of Canada was the most progressive in the world, and he agreed with the statement and he said he was very proud of that fact. The most progressive court in the world in a progressive country, which is the way things ought to be.

Now that is a—a an expression of an ideological preference, and that’s not what neutrality is supposed to mean inside a courtroom. But on the other hand, we have good judges who are able to carry out what I believe to be the proper judicial role.

We saw it, for example, a short time ago when, on her bail review for Tamara Lich, a Supreme Court justice reviewed the facts and the law in a meticulous and careful and proper way and set her out on bail because that was the right decision.

Okay, so if a judge is acting properly—tell me if I’ve got this right—first of all, under the English common law system and its variants, let's say that operate in Canada, a judge is supposed to take the current circumstances of polity and individuality and social change into account, but fundamentally remain within the framework evolved as a consequence of precedent and previous law, and so every decision is supposed to be tied back to a network of previous decisions, even though there has to be some transformation, let's say, on the edges. Is that a reasonable way of looking at it?

See, well, yes, exactly. So one way it's been put is that—and we have a common law system, right?—so there’s going to be some evolution over time. But the way they put it is it's supposed to be evolution and not revolution. You're not supposed to have the law being sort of handed down by the courts. The law-making role is that of the legislature, not the courts.

Yes, well, and we’ve seen some decay of that in Canada as legislators have abandoned their duty and left difficult decisions to a more activist judiciary, and this is a very bad thing.

Okay, so, but you think, you think in this case, at least, and perhaps in most court proceedings in Canada, that the judiciary is sufficiently intact so that a ruling on a case like this could be trusted?

Well, you see it's impossible to tell because you don't know who you're going to get or what's going to happen. So the track record during COVID hasn't been all that great because one thing the courts have demonstrated is not—not to every single judge, but as a pattern is an unwavering commitment to the government's COVID narrative, so far as to allow some judges to take judicial notice, for example, the—the safety and benefit of the vaccine and the risk of the virus without any evidence.

So it’s neither black or white, one way or the other.

Okay, so, Sam, Carl, Sean, do you guys feel that you’ve been through this now for about eight or nine months? Do you feel that as you've observed the wheels of justice grinding slowly forward, that your sense of justice has been served? I know the outcome hasn't occurred yet, but how are you feeling about the process?

I think it did earlier on. It seems sort of—this is just my opinion, of course—but it seems to have deteriorated a little bit in the last few months.

But, I don’t know, just the attitude—I’ll probably let Sam speak to this more. But, like early on, we—the government are famous for throwing us curveballs right off the bat. They tried—they filed a motion out of the blue, and we wondered why they didn't want to cross-examine us, and we found out a few days later why is they filed a motion to have our affidavits struck.

So these are difficult cases, for obvious reasons. And I also think they’re difficult cases in the social-political climate that they happen in. But I'm confident that with the record that we've produced, with the approach that we've taken—which is a very no-nonsense, nitty-gritty, pay attention to details, be very thorough approach—I think we have a, quite frankly, very good shot at winning.

And I have faith that we will get a fair and impartial hearing before the federal court, and I think to a large extent, you know, we are and we have been in this case very resilient, and you have to be. I mean, there are—there are cross-examination transcripts where I have probably had to spend close to an hour to get an answer, and it wears you out.

It's the first time ever. I'm frequently in the commercial list with big players trying to resolve multi-million dollar litigation disputes, and I can tell you the government is way more resilient trying to get a straight answer. Trying to get a sense of what's happening, why it happened, when it happened, and who was involved. It's a tough process, but I think, like anything else, if you do your homework and you're prepared and you're willing to, you know, take difficult steps.

I mean, we have brought so many inter motions to ensure that procedurally this moved in a way that we thought was fair and appropriate. It extracts a big sacrifice from you, and it’s a very resource-intensive process. But I’m very confident that the commitment we’ve made and the dedication we’ve made is going to yield a good result for us.

Okay, well, that’s very heartening to hear, you know, because your story basically is that this is very difficult and it requires painstaking effort, but if you do it properly it’s still a fair game, and thank God for that.

And so maybe I could ask you guys too, if you wouldn't mind, let's go to the funding side of this. How much has this action cost? Let’s look at that two ways: there’s the outright costs, right? So let's say the legal costs but then there’s also the costs in terms of time and involvement because Sean, you and Carl must have been spending untold hours on this, I would think, on a daily basis.

And so there’s a huge personal cost there. So Carl, yeah, let's—what's happening on the funding front? How much has this cost, and what has it cost you and Sean personally?

Well, I mean actions like this are always going to cost, you know, at least hundreds of thousands of dollars, right? That’s the reality of it.

And if you lose and suffer adverse costs awards, then worse again. It’s going to be an expensive action, however you try and do it. The cost of the work that a lawyer has to do is going to be in there, the cost of working with expert witnesses. As the intensity of the case builds, and more motions are submitted, the cost builds now.

Anybody who has had the unfortunate pleasure of seeing the government in the past knows that one government tactic in the same way as many larger, aggressive litigants is to try and drown the smaller guy in costs.

Okay, well so we have an answer to one earlier question, which is, "Well, why don’t more people stand up?" The answer to that is, well, because it's unbelievably expensive, and it consumes your whole life.

And so, first of all, that means most people literally cannot do it. They don't have the time because they don't have—they don't have the excess resources in some sense that allows for the time. I’m not suggesting you guys were sitting around on your laurels, but you at least had the financial acumen and resources to make something like this vaguely possible.

That would put you in a small percentage of people to begin with, and then you'd have to be willing to do it, and then you’d have to find the right lawyer, and then you’d have to be able to withstand eight months of well—and that’s a lot of trouble on the personal and the judicial and the cognitive front. So it's a very difficult undertaking.

How have you funded it so far, and what's been the story on that front?

It’s been a mix of two things. It's been a mix of personal funding and also some, you know, helpful donors that have offered to come forward, but the majority of it ultimately is in our case going to be personal funding at this time.

I think the funding of these cases is a very interesting aspect in itself. I think the structure of the organizations that do this work in Canada is something that’s worth discussing. From my perspective, I don't see that the freedoms guaranteed by the charter should be political, but there seems to be a tendency that organizations perhaps more to the right of center are left with the battle of fighting for them.

I find that curious because the loss of freedoms affects everybody in Canada, wherever you sit in the political spectrum. We have in Canada a small group of organizations that take on this kind of work, and they rely on lots and lots of small donors, occasionally large donors. Perhaps, you know, the Justice Centre for Constitutional Freedoms, Canadian Constitutional Foundation, and some recent new entrants, you know, such as the Democracy Fund and so on and so forth.

Indeed, we’re putting together a charitable foundation, which will be up and running shortly, called the Institute for Freedom and Justice, which we’re hoping to fund in a slightly different way so it can take on two issues—one being key areas of litigation in relation to this kind of constitutional challenge and, equally as importantly, I think, is supporting people who want to provide additional education to Canadians regarding the freedoms that should be protected by the charter in the first place. Too few people know about the content of the charter.

In fact, I’d say one more thing, Jordan. We were talking about section one earlier, and Bruce and I have had one or two conversations over time about this, but I’ve been fishing around from the start trying to find out where section one even came from and what I found was that it was very difficult to find anybody who knew. I asked some people that you’d know. I mean, you know, we asked Preston Manning, for example. That was really interesting, and he said, "That's a great question; I have no idea."

I asked Brian Beckford. Brian and I have had some emails about this, and Brian doesn't really know where section one comes from. It’s there, but who wrote it? Who drafted it? I don't know. Section 33, we know has a connection to Peter Lougheed, but where does section one come from?

I’ve been grubbing around trying to find out why. I’ve had people in the parliamentary library looking at this. Suppose it was a concession to Quebec claims for sovereignty?

No, I don't think so. I think that's more—I mean, section 33 is interesting because that was put forward. And from what I can see, it connected with Peter Lougheed, and then Pierre Trudeau seems to want a sunset clause in there, and that seemed to be the concession. But section 33 is sanitary; it doesn't apply to mobility rights in the charter.

But section one—the best I can think and I can find out so far is I think you have to look to the mid-1970s and possibly the international covenant on civil and political rights which is binding on Canada. But if you read that carefully, there section one could possibly be an attempt to sweep up clause to catch some of the issues that arise out of that document.

And at the time of the timing 1982, that would seem to fit that some consideration after the ICCPR came in.

Well, that’s a great mystery. You know, the fact that the biggest set of possible restrictions on our most fundamental rights is based on a clause whose authorship is unclear and whose intent is unspecified.

Sean, do you have anything else to say on the funding front before we return to Rupa? I’d like to take this opportunity to—I mean, early on, as I said, I started a GoFundMe. We closed that down when the Freedom Convoy ran into problems, and GoFundMe sort of, you know, stuck a knife in their back, so to speak. So I shut it down, and I moved it over to GiveSendGo.

But I just quickly wanted to say thank you to all of—we have supporters on social media and so on that have supported us through GiveSendGo. I wanted to thank everybody that’s donated thus far.

Is that still operating?

Yes, it is. The GiveSendGo—it’s the Canadian Freedom Litigation Fund.

So if people want to donate to your cause, it’s the Canadian Freedom Litigation Fund at GiveSendGo.

That’s correct, yes. Also, that’ll be funding another case that I’ll be running, filing an application and injunction against ArriveCan and the quarantine—

Oh yes, there’s a good idea!

So yes, so everyone who's listening, some of you are going to be thinking, "Well, what can I do about this?" And well, there is something you can do. There are two lawsuits pending. They're both going to be very expensive. I’m sure many of you who are watching, listening are somewhat perturbed and annoyed, let’s say, about that bloody ArriveCan app, which is a complete disaster and an unnecessary addition to the passports which we also can’t get.

And so, Rupa, one thing we might derive from this conversation, especially in relationship to Carl’s last comments, was that if the press was doing its damn job, then maybe private citizens wouldn’t have to be taking on the government.

So now you have this story. It’s a red-hot story as far as I can tell. It’s a blazing hot story, and I get to tell everybody about it, so why is that not a good deal apart from the fact that it’s utterly horrible, and contemptible, and appalling, and pathetic, and and weaselly, and deceitful, and instrumental?

And what traumatically unbelievable.

Okay, Carl, you’re right on the money.

Oh man, it’s something, man. What a world!

Carl, yeah, I mean, but echo Sean's comment that you know when you start these actions, you want them to be heard, and this is so important in that regard. It’s such an enormous matter of public interest, and it has huge ramifications and repercussions and risks. If a Canadian government can get away with this kind of behavior where it makes routine health choices coercive, it coerces people to make routine health charges and choices in order for them to take part in normal aspects of Canadian society and to exercise the sort of freedoms that everybody would expect in a modern liberal democracy in the West, and that's hugely important to get it heard.

I'm sure Sam can say something about the power, the issues with the mootness motion, and that comes up I think on September 19th or 21st as Sean has said. If we're successful in persuading the court that this matter isn't moot and should be heard, then there's a five-day hearing in Ottawa, a public hearing in person in Ottawa in the federal court from October the 31st, and that's an opportunity for the media to actually finally engage with, as you say, perhaps the biggest story in Canada in a decade about how the government has behaved around this particular issue.

On what possible grounds could they find it moot?

I'll let Sam deal with the detail, but it's actually—I'll say this right. I find it odd that the Attorney General of Canada is saying to the Canadian people, "Please ignore my cabinet colleagues. Please ignore Mr. Alghabra. Please ignore Mr. Giuklow when they say to you in a formal public statement that these measures have been suspended and we’ve got every intention of bringing them back in the fall if we feel like it." The Attorney General of Canada is saying, "Please ignore these guys; they happen to be my cabinet colleagues, and one of them happens to run the Transport Ministry and one of them happens to run the Ministry of Health. But please ignore them; take no notice because they haven't been suspended. These measures have been lifted for good."

And that's why the issue is moot.

Clearly it’s not moot at all! Mootness in Canada is something Sam can come on to that’s peculiar here. It’s not the same in the UK; it’s not the same in the US. This is an issue which can be repeated in the short term and is worthy of review.

Well, you'd think even if it's moot now—which it isn't—that doesn't mean that there's not something to be said about what happened. So what happened is unconscionable.

Alright, Sam, over to you.

Well, mootness is a funny thing, especially in the context of a pandemic. Mootness in the context of a pandemic is a very different consideration, I think, than mootness ordinarily, and I'll give you a very concrete example of that. A couple of months ago, before the interim court of appeal, I was doing a constitutional challenge on the restrictions on outdoor gathering. As you know, being outdoors is one of the safest places, probably the safest place to be, with the COVID-19 pandemic.

At the time I had filed my materials for appeal; there were still restrictions on outdoor gatherings. By the time the Attorney General gave me the responding materials, the restrictions were lifted. Several months later, the restrictions were back in place, and a couple of weeks before the hearing, the restrictions were repealed. The Court of Appeal dismissed it as moot.

And so you're left in this very unfortunate and precarious and quite unpredictable situation of timing, and it's—I don't agree that the issue of timing, especially in the context of a very fluid pandemic, where the government has demonstrated its willingness to turn on and off various—and quite frankly recycle through various different public health measures.

Timing shouldn't play a role in this. This is not moot in the sense of, you know, the government—a court in another area has already made a decision, has already said this is unconstitutional. This is moot in the context of very fluid public health measures.

And so regardless of whether or not those public health measures are activated—and that’s what I’m going to say, because we all know they can be activated and reactivated at any time within cabinet—regardless of whether they're presently activated, the manner in which these decisions are being made and the tools that are available in the context of a public health crisis, they're critical. We've established a very dangerous precedent here because God only knows what's going to happen, for example, when the next serious flu comes around because it's going to be indistinguishable in many ways from the mortality rates, say, of COVID, by all evidence, especially if it’s a serious flu. And it’s likely to be, because we haven’t had one for a while.

And so why wouldn’t we go down the same road immediately? Because I think that’s probably what we’ll do.

So, okay, Sam, anything else to say more generally about the situation? What are you hoping will happen over the next couple of months as far as you can tell?

Well, you know, obviously, I’m hoping that, as Carl and Sean alluded to, I’m hoping that we, you know, succeed in our motion, which is going to be heard in September, not about the federal court. I think we have very good reasons why the matter deserves its day in court and to be heard and decided on the evidentiary record that we have spent the better part of a year and significant resources investing, so that the truth can come out.

But more broadly, there are two statements I’d like to make to everyone who’s going to be watching and listening to this segment. The first one is our case is not political. Even though we make a lot of reference to the Liberal government, it’s actually not political, and the reason why I'm saying that is because democracy should not be political.

Transparency in the decision-making of the people that we have trusted to govern us according to a basic set of immutable principles that are frankly based on decency and liberty—that's not a political thing.

Well, it's not as if just to point this out, it's not as if the Conservative governments at the provincial level haven't done exactly the same thing. It's not as if Erin O'Toole didn't roll over instantly when these sorts of things came along, so if it’s political, it’s not partisan, right?

Right, exactly right.

I think that's what you’re right, and that’s probably a better way to put it. It should not be a partisan issue because today you might be on one side of the vaccine debate, and tomorrow you'll find yourself on the other side of a wholly separate debate. You hope that as a citizen of a democratic country, the government is going to show you a basic level of respect and decency and dignity.

The second thing that I wanted to mention is, you know, it’s very important that in times of crises, like now and a pandemic, and an unprecedented pandemic in recent history, we need to remind ourselves that this should never serve as a carte blanche for the government to do whatever it wants.

In circumstances of uncertainty, the absence of evidence is not evidence that anything should and can be done, and we must remain vigilant now more than ever. We need to refer back to the principles that we know are true, and as the evidentiary record will show, the government had principles—principles that were developed in the context of influenza, influenza pandemic, and we need to avail ourselves of those principles. You know, we don’t throw them out the window, which you know seems, by a large measure, was done here.

I really want to thank Sean and Carl, two people who made extraordinary sacrifices, as you’ve mentioned earlier. I can't imagine the toll this has had on their personal and private life. I know I speak with them more often than I speak with my fiancée, so I can't imagine what that has resulted on the home front.

It’s Canadians like Sean and like Carl who are taking their civic duties seriously, and it’s because of the work that they have really undertaken in this case that millions of Canadians—and hopefully people around the world—are going to see what's going on here, and we'll learn and be better because of it.

Well, let's hope that’s the plan.

Bruce, we’ll turn to you, and then we’ll let Rupa wrap up, I think.

So what have you got to say from the overview perspective?

Well, first, let me say my hat's off to these gents for having the stuffing to do this. It takes a lot of courage and determination, so good on you.

Let’s not fail to acknowledge how dangerous this story and this development is to a lot of people, to a lot of institutions. This is a threat; it’s a threat both to the COVID narrative but it’s also a threat in a bigger sense because we seem to have,