I have an update on our case. After being unable to retain the initial law firm I was in touch with due to a conflict of interest (they have business with the Province of NS), I was put in touch with another lawyer who also came highly recommended. I am pleased to say that there is no conflict of interest so we are able to retain this firm. I will release details on who the firm and the lawyer are once they are officially retained.
In the meantime, the lawyer was gracious enough to provide some initial advice prior to retaining them, as they wanted us to be clear on the nuts and bolts of the process to ensure we are still happy to move forward with the process, and getting an official, researched legal opinion. They raised 4 main points that they wanted us to be clear on prior to proceeding; here is what they said:
Adults only—Any charter challenge must be based on mask wearing by adults generally, and not children in schools. Essentially, the Courts have held that because young people are not adults, we can limit their rights (age limits for driving, drinking and smoking, consent to health care etc...). If the challenge proceeds, it won’t involve schools or minors.
Notwithstanding clause—Because the Provincial Government is the defendant, they can win the lawsuit by using the notwithstanding clause in legislation. Quebec has already done so in their law concerning religious face coverings to insulate that regime from a charter challenge. New Brunswick has used it in their mandatory vaccination law that was recently voted down in the legislature. That is a practical issue because we can spend a pile of money, win the case, and have no benefit whatever if the government passes legislation with the notwithstanding provision. The mask requirement is a determination made under the Health Protection Act and is not law. The problem is that if the Court strikes down the mask requirement for any reason, a one sentence piece of legislation “requiring the wearing of masks notwithstanding s. 33 of the Charter” fixes the problem the Court identifies. The legislature could pass that law the day after we file our lawsuit and make the whole proceeding wasted. There could be a symbolic victory in having the Court strike down the requirement under the Health Protection Act, but if the province enacts legislation the next day fixing it with a notwithstanding clause law, we’ve done all that for nothing. A long and expensive court case can be undone with a one sentence piece of legislation. I don’t want to take your money without everyone realizing there is a very significant risk this would un-do whatever court ruling we get. Given that New Brunswick used the notwithstanding clause for mandatory vaccinations, I fully expect that if we win, our result will be un-done by legislation. If you’re comfortable with spending the money knowing of that risk, I’m happy to run the lawsuit.
Timing—Most charter challenges take years. There are preliminary motions to settle what is before the Court, there are often appeals. Trinity Western was decided in Nova Scotia in record time—only two years after the challenged decision. I’m doubtful that it’s much use to you getting a decision in 2022, even if we win on every issue. If the province wants to, it can delay a decision into 2022. My judgment is that a court would not issue a temporary injunction pending the full hearing of the matter. The argument is that if we are right, the government can be ordered to pay damages or do something to compensate people for the inconvenience of wearing a mask; if we are wrong, some people may become sick or die as a result. The “balance of convenience” favours leaving the mandate in place until the end of the process. Easier to fix our inconvenience than someone’s illness or death.
Cost—The lawsuit against the Province is expensive. It will likely come in somewhere between $30,000-$80,000 (depending mostly on what steps the Province takes that we need to respond to). Trinity Western, by comparison, was more than $300,000 in legal fees.
Even without research, I can tell you that we will probably not get a temporary decision striking down the mask mandate, we will need to wait until the legal proceedings are concluded. Even if we are completely successful, there is a significant risk the government will use the notwithstanding clause to un-do our win, and even if we succeed in our challenge for adults, it is much less likely we can do so for children and schools. There is a division between the government’s role and the Court’s. The Court does not decide whether the evidence merits a particular policy or not. That is the government’s role, and if people disagree, they can vote against the government in the next election. The Court has no ability to second-guess the trade-off the government makes in a policy decision (in this case, the trade-off between safety and individual rights). Whether a blanket mandatory mask order is justified is essentially a policy decision. The Charter is not involved in choosing between policy decisions. If the province discriminates in imposing it (just in Yarmouth, not in Shelburne) the government will need to justify the discrimination under the Charter. But if the mask order is imposed for collective safety, not individual risk, whether the mask order is necessary is not a Charter issue. Here, you only have a successful Charter case if we can show that the interference with your rights is unwarranted. Whether the interference can be shown to be unwarranted will depend on whether masks protect the individual wearer or protect society generally. If the masks only protect the wearer, then the Court will consider if the individual feels the interference in unwarranted. The individual gets to decide what is and what is not a comfortable level of risk, in some cases. If the masks protect society, a different rule applies: you don’t get to decide what is an acceptable level of risk for me—the government decides that. We will not win the lawsuit by showing that the mandatory rule is an over-reaction given the few cases in Nova Scotia (that is a policy issue). The individual arguably has a right to make risk decisions for him or herself. The individual has no right to make risk decisions for others-- policy decisions—when a mask policy is necessary in the province—him or herself. To succeed, we need an immunologist or infectious disease doctor who is prepared to review the medical evidence and offer the opinion that not wearing a mask is like second hand smoking. The risks to others are tiny, and substantially all of the risks are to the person not wearing the mask. In other words, we need to quantify the risk to others as very small to succeed in the lawsuit. If the government can show that there is a significant protection from a mandatory masks order (even if the case load is near zero), we lose.
- We will not succeed in focusing on the school mask policy
- It could take 2 years for a decision to be rendered
- It will be expensive, $30-80K
- The government can un-do anything we accomplish by introducing legislation using the notwithstanding clause.
- The mask mandate is a policy decision. To fight it on charter grounds, we have to prove that masks are an individual issue, meaning the concept of protecting others is overstated.
- If we cannot provide expert evidence on this basis, we cannot win the case since it is in the government's domain to act in accordance with public safety.
- The Courts cannot rule on the validity of the policy, as in, they will not say the mandate is unreasonable, because Dr Strang is the expert and they defer to him.
- We must prove that not wearing a mask is a very low risk to others, and therefore the decision should rest with the individual.
I was always prepared to accept this was going to be an uphill battle. On a personal level, just getting the suit filed and forcing the government to respond would be a small win, but I understand everyone has a different threshold for success. I realize many of you will be disappointed, like I am, that dealing with the mask policy in school isn't something we have a tangible case against because children to not have the same protected rights as adults. Given the initial funds have already been raised, I am inclined to proceed as planned and have the law firm spend the time to properly research the merits of this specific case and give guidance on how precisely to move forward. If, based on the information presented here, you now feel as though we should not proceed any further, please let me know. You can comment publicly, PM me on Facebook or EMAIL me directly. If the overwhelming majority prefer to abandon this legal action now, then that's what we will do and I will begin to process refunds. It has to be an all or nothing situation, so no individual requests for refunds will be considered. We will either proceed or we won't. My preference is to proceed as at least the potential of filing the case will generate some media attention and force the government to respond. It's better than sitting on our hands, in my opinion. Look forward to hearing yours.