The ambiguities of the COVID-19 pandemic extended from the disingenuousness, not to say lies, of those in the healthcare bureaucracy and political leadership who presided over its administration, to the quiet or not-so-quiet opposition of ordinary Canadians to being bullied..These ambiguities were vividly expressed but not resolved in the recent case, Ingram v. Alberta, decided by Justice Barbara Romaine in the Court of King’s Bench in Calgary on July 31..The legal issues have been clearly analyzed for Western Standard readers by three lawyers, John Carpay, Jeff Rath (who represented one of the plaintiffs, Ms. Ingram) and Leighton Grey, who was interviewed at length by Arthur C. Green..Before considering Justice Romaine’s “Reasons for Judgement,” we might make two preliminary observations..First, Canadian courts have generally upheld the ability of Canadian governments to violate the Charter rights of citizens as reasonable limitations on freedom of association, assembly, conscience etc. Such violations are legal under Section 1 of the Charter and subsequent jurisprudence, usually called the Oakes test..Romaine also found that such limitations were reasonable, thus adding to the political evidence that the courts have become de facto constituent parts of the executive.. Justice Barbara RomaineJustice Barbara Romaine of the Alberta Court of King’s Bench in Calgary. .Second, this case was (as Carpay noted at length) decided on a technicality..Under the Public Health Act of Alberta, all health-care Orders must be given by the Chief Medical Officer of Health, in this case Dr. Deena Hinshaw. Hinshaw, however, testified that she did not enforce any Orders but merely gave advice to Cabinet and they, not she, did the enforcing..Such a procedure, which is at least formally commonplace in typical relations between bureaucrats and the executive, is not permitted by section 29 of the Public Health Act..Justice Romaine said Hinshaw made a mistake and consequently all the Orders enforced by the cabinet were illegal. She added, hypothetically, if Hinshaw had enforced the Orders as she was supposed to do, that would have been okay, despite infringing on the Charter-rights of Ingram and others..One further comment. To find Hinshaw’s claim credible we must ignore an event that took place in the spring of 2021 when Bill 66, the Public Health Amendment Act, was passed..This change brought the position of Hinshaw into line with that of her friend, Bonnie Henry, Chief Medical Officer of Health in BC. Among other things, it reaffirmed the independence of Hinshaw and her subordinate bureaucrats from any legislative or executive oversight..The claim she was unaware of the implications of the legislation that gave her the ability to issue Orders seems to me to be preposterous. Not even Hinshaw could be that incompetent. But that’s what Romaine found..In her own preliminary observation, Romaine said she agreed with an Ontario colleague that her role was not that of an “armchair epidemiologist.” And yet, large parts of her decision in this case are nothing but ill-informed musings of an armchair epidemiologist issuing judgements on the credibility and correctness of some experts and the incorrectness of others..All Romaine’s correct experts backed Hinshaw; all the incorrect ones opposed her..According to Romaine, Hinshaw herself was “a highly credible witness, calm and thoughtful in her evidence and unimpeached by the often intense cross-examination.".Other observers were less charitable. Leighton Grey said Hinshaw was “vivisected” under cross-examination. From the excerpts of testimony available online, that seems to me a fair characterization..Two of the experts upon whose testimony our armchair epidemiologist passed judgement were Jay Bhattacharya and Kenneth Kindrachuk. As Romaine noted, Kindrachuk has two degrees from the University of Saskatchewan. Bhattacharya is described as a “health economist” from Stanford. She did not note that he has four degrees from that university..Bhattacharya is best known for his co-authorship of the Great Barrington Declaration..Chief among the arguments of this document is the acknowledgement of “a steep gradient in the risk profile for COVID-19” such that older persons with comorbidities are many times more likely to suffer bad outcomes from SARS-CoV-2 infection, to which they are more susceptible, than younger and healthier humans..Romaine said this was a “premise” not a fact. She also described his discussion of herd immunity, a well-known biological fact familiar to generations of ranchers in Southern Alberta, as an “opinion.” She considered Bhattacharya “defensive” under cross-examination and “unclear” about Alberta’s public health policies..Bhattacharya also drew attention to measurement problems, to problems with models used by public health forecasters and other methodological issues..Romaine concluded he “was reluctant to accept any evidence or opinion that may cast doubt on his opinions.” Presumably she found this to be unusual and speculated that he was “advancing a personal agenda.” In fact, Bhattacharya knew what he was talking about..For her part, Deena Hinshaw issued a press release in the fall of 2020 indicating she had (unspecified) “issues” with Bhattacharya’s position and that “the best way to prevent severe illness … is exactly what we are doing.” No personal agenda there, of course..Romaine’s characterization of Kindrachuk was rather different..He “vigorously defend[ed] his opinions, which does not detract from his credibility.” Even under cross-examination, he “was not excessively or inappropriately argumentative.”.At one point Kindrachuk explained “why natural herd immunity is a seriously concerning and ultimately not effective strategy to combat COVID-19.”.Either Kindrachuk was misinformed, or Romaine wasn’t paying attention..“Herd immunity” is not a strategy of any kind. The term refers to an equilibrium point where the rate of new infections is stable. It’s something you learn about in Biology 101 or from experienced cowboys..Romaine used the same procedure in her analysis of the testimony of David Redmond, a former Executive Director of the Alberta Emergency Management Agency..His criticism of the response by the Government of Alberta to the COVID-19 event was characterized as merely his “personal opinion” or an “unsupported opinion” insofar as he criticized the lockdown policy as being unjustified..This characterization was followed by lengthy excerpts from Hinshaw’s response, including her defence of masking — a position she shared with Kindrachuk. (Others have compared masking to the use of a chain-link fence to keep mosquitoes from the back yard.).In her application of the Oakes test to see if the Alberta Orders were legal (had they been issued by Hinshaw) despite restricting citizens’ Charter rights, Romaine again criticized Bhattacharya’s “focussed protection” of the elderly as being “fraught with practical difficulties” because some old persons were docs and cops and so essential to managing the emergency. Apparently, she could see no way to deal with this problem..Finally, Romaine declared, along with the various health bureaucrats in this country, that the COVID-19 event was a dangerous public health crisis, not an emergency management crisis..That implied that everybody in the country was at risk. Marco Navarro-Génie and I (along with the authors of the Great Barrington Declaration) took over 500 pages in Canada’s COVID to argue the opposite..The position taken by Romaine was particularly surprising since she was also cognizant the “emergency management crisis,” that is, Canada’s and Alberta’s political response to the COVID-19 event, was based on the promotion of fear among citizens. Redmond had argued at great length (along with commonsense) that this was the worst possible government action..Romaine thought there was no exaggeration to be found in government policy and, in fact, Canadians were right to be afraid, very afraid..With all due respect to this elegantly robed armchair epidemiologist, she was wrong on both counts.
The ambiguities of the COVID-19 pandemic extended from the disingenuousness, not to say lies, of those in the healthcare bureaucracy and political leadership who presided over its administration, to the quiet or not-so-quiet opposition of ordinary Canadians to being bullied..These ambiguities were vividly expressed but not resolved in the recent case, Ingram v. Alberta, decided by Justice Barbara Romaine in the Court of King’s Bench in Calgary on July 31..The legal issues have been clearly analyzed for Western Standard readers by three lawyers, John Carpay, Jeff Rath (who represented one of the plaintiffs, Ms. Ingram) and Leighton Grey, who was interviewed at length by Arthur C. Green..Before considering Justice Romaine’s “Reasons for Judgement,” we might make two preliminary observations..First, Canadian courts have generally upheld the ability of Canadian governments to violate the Charter rights of citizens as reasonable limitations on freedom of association, assembly, conscience etc. Such violations are legal under Section 1 of the Charter and subsequent jurisprudence, usually called the Oakes test..Romaine also found that such limitations were reasonable, thus adding to the political evidence that the courts have become de facto constituent parts of the executive.. Justice Barbara RomaineJustice Barbara Romaine of the Alberta Court of King’s Bench in Calgary. .Second, this case was (as Carpay noted at length) decided on a technicality..Under the Public Health Act of Alberta, all health-care Orders must be given by the Chief Medical Officer of Health, in this case Dr. Deena Hinshaw. Hinshaw, however, testified that she did not enforce any Orders but merely gave advice to Cabinet and they, not she, did the enforcing..Such a procedure, which is at least formally commonplace in typical relations between bureaucrats and the executive, is not permitted by section 29 of the Public Health Act..Justice Romaine said Hinshaw made a mistake and consequently all the Orders enforced by the cabinet were illegal. She added, hypothetically, if Hinshaw had enforced the Orders as she was supposed to do, that would have been okay, despite infringing on the Charter-rights of Ingram and others..One further comment. To find Hinshaw’s claim credible we must ignore an event that took place in the spring of 2021 when Bill 66, the Public Health Amendment Act, was passed..This change brought the position of Hinshaw into line with that of her friend, Bonnie Henry, Chief Medical Officer of Health in BC. Among other things, it reaffirmed the independence of Hinshaw and her subordinate bureaucrats from any legislative or executive oversight..The claim she was unaware of the implications of the legislation that gave her the ability to issue Orders seems to me to be preposterous. Not even Hinshaw could be that incompetent. But that’s what Romaine found..In her own preliminary observation, Romaine said she agreed with an Ontario colleague that her role was not that of an “armchair epidemiologist.” And yet, large parts of her decision in this case are nothing but ill-informed musings of an armchair epidemiologist issuing judgements on the credibility and correctness of some experts and the incorrectness of others..All Romaine’s correct experts backed Hinshaw; all the incorrect ones opposed her..According to Romaine, Hinshaw herself was “a highly credible witness, calm and thoughtful in her evidence and unimpeached by the often intense cross-examination.".Other observers were less charitable. Leighton Grey said Hinshaw was “vivisected” under cross-examination. From the excerpts of testimony available online, that seems to me a fair characterization..Two of the experts upon whose testimony our armchair epidemiologist passed judgement were Jay Bhattacharya and Kenneth Kindrachuk. As Romaine noted, Kindrachuk has two degrees from the University of Saskatchewan. Bhattacharya is described as a “health economist” from Stanford. She did not note that he has four degrees from that university..Bhattacharya is best known for his co-authorship of the Great Barrington Declaration..Chief among the arguments of this document is the acknowledgement of “a steep gradient in the risk profile for COVID-19” such that older persons with comorbidities are many times more likely to suffer bad outcomes from SARS-CoV-2 infection, to which they are more susceptible, than younger and healthier humans..Romaine said this was a “premise” not a fact. She also described his discussion of herd immunity, a well-known biological fact familiar to generations of ranchers in Southern Alberta, as an “opinion.” She considered Bhattacharya “defensive” under cross-examination and “unclear” about Alberta’s public health policies..Bhattacharya also drew attention to measurement problems, to problems with models used by public health forecasters and other methodological issues..Romaine concluded he “was reluctant to accept any evidence or opinion that may cast doubt on his opinions.” Presumably she found this to be unusual and speculated that he was “advancing a personal agenda.” In fact, Bhattacharya knew what he was talking about..For her part, Deena Hinshaw issued a press release in the fall of 2020 indicating she had (unspecified) “issues” with Bhattacharya’s position and that “the best way to prevent severe illness … is exactly what we are doing.” No personal agenda there, of course..Romaine’s characterization of Kindrachuk was rather different..He “vigorously defend[ed] his opinions, which does not detract from his credibility.” Even under cross-examination, he “was not excessively or inappropriately argumentative.”.At one point Kindrachuk explained “why natural herd immunity is a seriously concerning and ultimately not effective strategy to combat COVID-19.”.Either Kindrachuk was misinformed, or Romaine wasn’t paying attention..“Herd immunity” is not a strategy of any kind. The term refers to an equilibrium point where the rate of new infections is stable. It’s something you learn about in Biology 101 or from experienced cowboys..Romaine used the same procedure in her analysis of the testimony of David Redmond, a former Executive Director of the Alberta Emergency Management Agency..His criticism of the response by the Government of Alberta to the COVID-19 event was characterized as merely his “personal opinion” or an “unsupported opinion” insofar as he criticized the lockdown policy as being unjustified..This characterization was followed by lengthy excerpts from Hinshaw’s response, including her defence of masking — a position she shared with Kindrachuk. (Others have compared masking to the use of a chain-link fence to keep mosquitoes from the back yard.).In her application of the Oakes test to see if the Alberta Orders were legal (had they been issued by Hinshaw) despite restricting citizens’ Charter rights, Romaine again criticized Bhattacharya’s “focussed protection” of the elderly as being “fraught with practical difficulties” because some old persons were docs and cops and so essential to managing the emergency. Apparently, she could see no way to deal with this problem..Finally, Romaine declared, along with the various health bureaucrats in this country, that the COVID-19 event was a dangerous public health crisis, not an emergency management crisis..That implied that everybody in the country was at risk. Marco Navarro-Génie and I (along with the authors of the Great Barrington Declaration) took over 500 pages in Canada’s COVID to argue the opposite..The position taken by Romaine was particularly surprising since she was also cognizant the “emergency management crisis,” that is, Canada’s and Alberta’s political response to the COVID-19 event, was based on the promotion of fear among citizens. Redmond had argued at great length (along with commonsense) that this was the worst possible government action..Romaine thought there was no exaggeration to be found in government policy and, in fact, Canadians were right to be afraid, very afraid..With all due respect to this elegantly robed armchair epidemiologist, she was wrong on both counts.
