D. Jared Brown is a litigator and Bencher of the Law Society of Ontario.

References:

Section 3 of Manitoba’s Public Health Act:

“If the exercise of a power under this Act restricts rights or freedoms, the restriction must be no greater than is reasonably necessary, in the circumstances, to respond to a health hazard, a communicable disease, a public health emergency or any other threat to public health.”

Transcript and YouTube Video:

eugenefernandes.com/letters-from-a-contrarian

Show-notes

2:51 How the JCCF tapped Brown to help represent seven churches and three individuals in Manitoba, and what their case was. The churches couldn’t gather, and the individuals couldn’t protest.

6:01 The Government argued that the infringements on rights and freedoms were justified.

8:46 Brown cross-examined Dr. Jason Kindrachuk, Lanette Siracusa, Carla Lipkey, Dr. Brent Roussin, Dr. Jason Bullard, and Dr. Joel Kettner.

10:38 Three revelatory insights that came to light in the cross examination: one, the Manitoba government had exaggerated the scarcity of hospital and ICU beds in the province during the Christmas season, along with their ability to expand the hospital system. Two, a positive PCR test result does not mean that the person is infectious.

14:29 Lastly, three - the government justified their measures on the basis that everyone else was doing it. No cost benefit analyses in sight.

16:47 This bandwagon defence (“everyone else was doing it”) might’ve been understandable at the pandemic’s start, but after 14 months, not as much.

22:11 The government does not have a legal obligation to justify their infringements up until someone challenges them in court. But the expectation is that they would justify the measures publicly. They didn’t. They used fear instead.

23:29 One consequence of using fear to threaten citizens into accepting public policy: vaccine hesitancy.

27:01 Are medical officers of health legally supposed to have the power and the role that they currently have? Thoughts about accountability mechanisms and a faith in democracy.

28:39 Rights and freedoms: easy to give up, bloodily difficult to get back. That’s why you don’t give an inch. Equality jurisprudence is developing far more than negative freedoms. Lawyers don’t seem to care.

31:55 Courts and discretion: Canada vs USA.

34:13 Brown was vilified by his peers and many others on social media in March 2020. Many lawyers are now changing their minds - if an emergency has lasted 14 months, then maybe it isn’t an emergency.

37:22 How Brown stood up to the pushback: say what you think, look at the reaction, and ask if it’s creating unnecessary conflict. Try to be minimally impairing. Have skin in the game by directing your energy towards the venues where it makes the biggest impact and where you’ll be heard. Instead of being a Twitter warrior, he took the opportunity to challenge the restrictions in this court case. And know what your principles are.

41:16 As a citizen who opposes the restrictions, write letters to your (provincial) elected leaders. Let them know you want to calculate your own risk and that their paternalistic attitudes aren’t welcome. Second, step forward to the JCCF or the CCF! They need volunteers to help challenge these Charter violations.

43:01 The possible costs of stepping forward for public interest litigation (some public shaming in court by lawyers, and it’s unlikely but you may have to pay too).

45:20 Safety culture eroding liberty.

Contact

Contact D. Jared Brown at brownlaw.ca or on twitter at @litigationguy

Contact Eugene Fernandes at eugenefernandes.com or on twitter at @eugenefds

Dave Redman - Models, Mismanagement, and Emergency Planning

Letters from a ContrarianBy Eugene FernandesMar 31, 2021