It was the chance that many Canadians coast-to-coast had been waiting for. Ontario barbecue shop owner Adam Skelly was to have his day in court and put the constitutionality of Premier Doug Ford’s lockdowns on trial. Instead, Justice Jasmine Akbarali killed it before it could even get started. .I started to get uneasy about what might happen to Skelly when I looked up a few days ahead of Monday’s scheduled hearing the background of the judge who would be hearing the constitutional challenge. .Akbarali was appointed to the Superior Court of Justice in 2016 by the Trudeau government. She had been a partner in the Toronto law firm Lerners LLP. .Then I checked the legal database to see what cases she had decided. I found 166 cases in which she had either adjudicated or had been quoted by other judges, but only three cases in which she decided mentioned the Canadian Charter of Rights and Freedoms, and then only peripherally. Constitutional law, it seems, is not her area of specialization. Family law is. .Search engines disclosed Akbarali had decided two headline-making cases within recent years. In one, she ruled two children must be vaccinated, contrary to the wishes of their mother, and contrary to the ruling made by the family law arbitrator before whom the separated parents had attempted to resolve the issue. The arbitrator relied on the testimony of two experts and the children’s family doctor. However, Akbarali took it upon herself to dismiss the evidence of Dr. Toni Bark as “neither necessary nor relevant,” after reviewing the Canadian Immunization Guide and Immunization 2020, a publication of the Ontario Ministry of Health and Long-Term Care. Apparently, she viewed this anonymously written government document as gospel, describing it as “a public document, admissible for proof of the truth of its contents.”.In another case, she reduced a separated father to visits with his four-year-old child by video only, with a right to review the order only if he agreed to follow public health orders, including forced masking. The father, an active participant in public protests against government lockdown measures, had argued (correctly) children are at virtually no risk of illness from COVID-19. However, Akrabali had unquestioningly accepted the government narrative. She also ordered the father to sanitize all his social media posts “that refer to the issues in this litigation.” .Akrabali appeared oblivious to the father’s Charter right to freedom of expression. And did she give any thought to the harm she might have inflicted upon that now five-year-old child who may still be sequestered from his or her father? .Akrabali is clearly imbued with a reverence for government-issued pronouncements on the issue of the COVID-19. She hardly seemed likely to give a fair hearing to Skelly or his company, who brought forward six highly qualified experts for the precise purpose of challenging those government pronouncements. .But instead of allowing him his day in court and then ruling against him so that he could get on with his appeal to perhaps less brainwashed appellate judges, Akrabali simply decided to deny him his day in court altogether. To the astonishment of the 500 people watching on Zoom (they refused to allow any more), she announced she had no jurisdiction to hear the case and said she would provide written reasons later. .The case had been set for two full days of hearing on constitutional issues, but was truncated after roughly 90 minutes. All of Skelly’s court documents and expert affidavits would not see the light of day in a court, so says Akrabali..Skelly’s Notice of Constitutional Question detailing the numerous complex constitutional issues that would be raised had been served on the Ontario government back in February. The Notice of Motion stating he was seeking damages under the Charter for breach of various rights had been served in March. Witnesses on both sides had given evidence by affidavit and had been cross-examined outside court. The lawyers for the attorney general had served responding material on Skelly and his lawyers 10 days before the hearing date, and addressed the constitutional issues. .What went on behind the scenes? There’s certainly a suspicion of some deliberate engineering designed to prevent this strong evidentiary case from being heard by a judge who respects the Charter. The judge who had previously been assigned to the case, Justice Jessica Kimmel, decided an interim matter against Adamson Barbecue, but Skelly’s advisor Chris Weisdorf told me Kimmel had also recently decided an important case, on a completely different issue, against the interests of the Ontario government. .She was pulled from the Skelly case “due to scheduling conflicts” at a time when nothing had actually been scheduled. .Was the Ontario government judge-shopping? Was Kimmel too open-minded?.We haven’t heard the last of this. Skelly and his team are already talking about appealing. For the sake of preserving a shred of our most simple liberties, let’s hope they do..Karen Selick is a Columnist for the Western Standard
