The latest judge to disappoint Canadians with his cavalier attitude toward individual rights under the Canadian Charter of Rights and Freedoms is Justice John Henderson of the Alberta Court of Queen’s Bench..His decision on an interim injunction sought by four Alberta medical doctors was delivered orally on December 17, and was summarized online from journalists’ hastily taken notes. A more complete (although as yet unpublished) transcript was made available to me through the doctors’ counsel on December 21..It reveals an alarming readiness to jettison the rights of individual Albertans — both doctors and patients — and a shocking willingness to kowtow to a government agency that has done nothing over the past 20 months to earn such respect. .At issue was whether Alberta Health Services’ (AHS) Policy 1189 requiring the universal vaccination of the province’s doctors is constitutionally valid. Four doctors challenged the policy, with the assistance of Edmonton lawyer Richard Secord and the Justice Centre for Constitutional Freedoms’ staff lawyer Eva Chipiuk. Their court documents can be read here..All four doctors have had COVID infections and have recovered, leaving them with natural immunity to the infection. They argue that natural immunity such as this provides superior protection to future patients they might come in contact with, compared to the protection provided by vaccination..To supplement their own opinions, the plaintiffs retained Dr. Joel Kettner to provide an expert’s report. Dr. Kettner is not only a doctor and a professor at the University of Manitoba, but was from 1999 to 2008 the Chief Medical Officer of Health for the province of Manitoba. His curriculum vitae runs 29 pages long. He is not a man whose opinion should be dismissed lightly..The concluding paragraph of Dr. Kettner’s report states: “I have been unable to find relevant data or clear rationale for policies pertaining to the exclusion of health care workers because of their vaccination status, especially since there has been consistent evidence for equivalent — if not superior — protection by natural immunity resulting from previous infection, as described by the major public health organizations and the Public Health Agency’s National Advisory Committee on Immunization.” .The lawyers for AHS didn’t produce a shred of evidence to contradict Dr. Kettner or support their mandate. They came to court with the pathetic excuse they hadn’t had enough time to prepare. They had been served on the evening of December 9 and had to argue on December 14..Yes, that’s a tight deadline, but what has AHS been doing since it first announced the vaccination mandate on September 14? Have they been completely oblivious to the outrage that greeted their dictates from many of the victims of their intended coercion? Did they really think they were going to get away with a policy like this without having to justify their actions under Sec. 1 of the Charter? .Given the highly credible medical evidence before him and the lack of any contrary evidence, it should have been a slam-dunk for Justice Henderson to grant the temporary injunction. After all, the case will return to court in early March and can be reconsidered then in the event that AHS and its lawyers have gotten their act together. In my several decades of practicing law, I’ve seen judges proceed on one-sided applications like this many times, when they were well-drafted and compelling, as this one was..But instead of applying the evidence that was actually in front of him, the judge fell all over himself sympathizing with the terrible burden it had placed on AHS’s lawyers. “I certainly would not have expected Alberta Health Services to have been able to prepare … in the time permitted,” he groveled. .He then went on to purportedly apply the three-part test normally used in injunction applications. He allowed the doctors to score only one point: yes, there were indeed some serious issues to be tried..His decision on point two left me shaking my head in disbelief. He concluded that the plaintiffs had not demonstrated that there would be any irreparable harm from their being sidelined and forbidden to practice medicine for at least the next three months and possibly longer..First, he pooh-poohed their concerns about being deprived of their income, describing these as “vague assertions of hardship and stress” that could “easily be compensated for in damages” later. Yeah, but when? After they had lost their homes for failing to make mortgage payments? With his guaranteed annual salary of $314,100 per year (plus benefits), and a generous vested pension for life, Justice Henderson seems like a caricature of the entitled career bureaucrat who can’t appreciate ordinary people’s problems..But equally alarming is his lack of concern for the patients whom these four doctors won’t be treating over the next few months as a result of his ruling. Nor are these the only doctors affected by the policy; they’re just the first into court. Hasn’t AHS been screaming over shortages in the healthcare system these last 21 months? Some patients might die or suffer irreversible damage as a result of even further personnel shortages..Justice Henderson shrugs this off with the vacuous remark that “AHS will have the responsibility to [adjust its policy] if they are not able to cope with the increased patient load, but it is not for the court to tell AHS how to handle patient loads.”.What? It certainly is the court’s responsibility to prevent the irreparable harm of patient death and disability when it has the power to do so and there’s no serious downside..This brings us to point number three: the balance of convenience test. AHS first announced its vaccine mandate would commence on October 31. Then they moved the deadline to November 30, and again to December 13. But nobody got sick or died from dealing with an unvaccinated doctor between October 31 and December 13. There is likewise no reason to think that anyone would be harmed by dealing with these naturally immune doctors between mid-December and early March. So there is absolutely no inconvenience to AHS or the public if the injunction were to be granted..The inconvenience will all be born by the doctors and the patients who will be deprived of their care as a result of the injunction not being granted by the court..But Justice Henderson said the balance of convenience favoured taking the side of AHS. How could he have gotten this so wrong?.His real concern, it turns out, is that granting an injunction might undermine the public credibility of AHS (as if AHS hadn’t already done that themselves on innumerable occasions.) Justice Henderson worried an injunction might “potentially cause others to consider the merits of complying with the policy” and “would do a disservice to those who are looking for leadership from AHS.”.In short, he confused his actual role as a trier of fact and arbiter of justice with his desired role of government propagandist..He should hang his head in shame..Karen Selick is a columnist for the Western Standard
