We have received the official legal opinion from Brian Casey, Q.C. of Boyne Clarke. It's a thorough, 13 page document and I have made it available for viewing at the link below. Here is a very basic, high level summary for those who just want the nuts and bolts without having to read a lengthy legal document:
- To have the mandatory mask law stricken down in court, we must prove that it goes against Section 7 of the Canadian Charter of Rights and Freedoms. Section 7 states that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
- What this means practically, is that we have to prove that the law violates this right. Brian is confident we can do this quite easily, as citizens have the right to make decisions about their own healthcare.
- The hurdle is, as soon as the concept of "greater good" comes in to play, it effectively overrides your individual rights. For example, I have the right to cause harm to myself but I don't have the right to cause harm to others.
- To win the case, we need medical evidence and expert testimony that proves wearing a mask does not protect others from you, but only protects you.
- The courts do not assess the situation to determine if it's reasonable given the number of cases we have. Courts are no Doctors and will defer back to Dr Strang. If his medical opinion (whether it's right or not is of no consequence) is that masks are necessary to help reduce the spread of COVID-19, then the court has no jurisdiction to rule against that.
- Since the case is not just a legal matter, but a medical matter to be tried, Brian does not see a path where we are able to have a decision rendered in under 2 years, even if we can provide evidence that proves our case.
- Children under 19 are not afforded the same rights under the Charter and therefore even if we win the case at trial in 2 years, the ruling would not apply to children in school.
- If we file this case and win, the Government can override both the Charter and the Court decision by enacting legislation using the Notwithstanding Clause - Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause, or as the override power, and it allows Parliament or Provincial Legislatures to temporarily override certain portions of the Charter. The only way to override legislation written using section 33 is to vote out the Government who enacted it.
I queried Brian after receiving his opinion, asking if anything would change if we argue from the perspective of health detriments caused by masking, as oppose to simply from the section 7 Charter element of personal choice. His response is available, linked below
In conclusion, we have a case IF we can prove that masks don't really have a public health component, meaning they don't actually protect other people. If we can prove that, it will likely take a minimum of 2 years before the law would be struck down, and would still not have any impact on children in school. The next step, if there is an appetite to move forward, is to gather the required medical evidence and file a case. Brian said he is happy to walk us through that process, though further crowd funding would be necessary.
We all knew this would be an uphill battle, but what has been most eye opening through this process to date is finding out how truly powerless we, The Citizens of Canada are when it comes to fighting back against the Government. They do not have any burden of proof, and have multiple avenues to maintain legislation, even if the Court rules against it. The Notwithstanding Clause may be the biggest surprise of all, in that the Government can ultimately do just about anything it wants to, notwithstanding protected Charter rights or any Court decisions. Doesn't really sound much like a free and democratic society when it's all on the table, does it?
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