Feb. 4, 2021

B.C. Group challenges constitutionality of COVID regulations

The Society For the Advancement of Science in Public Policy is raising money and crowd-funding to pay lawyers to represent the Society in Court. The Executive Director is Kip Warner. 

Here is a summary of it all. I have contributed to their cause. 

A direct-action campaign brought by the Canadian Society for the Advancement of Science in Public Policy (CSASPP), a non-profit, non-partisan, secular, and volunteer driven organization. We intend to responsibly use your funds towards the costs of promoting, filing, and prosecuting a claim for injunctive, declaratory, or other appropriate relief in the Supreme Court of British Columbia in response to the COVID-19 measures and its constitutional implications. The proceeding is brought under the Class Proceedings Act, RSBC 1996, c 50. This means that the implications on our potential success would be shared by all citizens, as opposed to just one individual, business, or organization. We will provide the maximum financial transparency without compromising litigation privilege.

The Problem
As you are undoubtedly aware, British Columbians are in an unprecedented situation. The COVID-19 measures have taken their toll on businesses, individuals, and the public treasury. 


The measures appear to many to be incrementally draconian. An astronomically low infection fatality ratio (IFR); testing kits producing false positives for a goat, papaya and a kiwi; dubious exercise of executive powers; the mysterious disappearance of the common seasonal flu; or an overall lack of an adequate evidential foundation is increasingly being questioned by legal scholars, private citizens, small business owners and their patrons, physicians, nurses, the scientists selling the tests, infectious disease epidemiologists and academics, pharmacists, community leaders, public officials, places of public worship, and civil liberty advocacy groups. Further, the evidence of harm as a result of these measures in Canada and similar in the United States is overwhelming.

Citizens have joined rallies and (mostly) peaceful protests. They share leaflets with their grievances and republish articles on social media daily. Documentary film makers have never been busier and petitions continue to grow in signatories by the hour 

Have these well-intentioned efforts amounted to anything? Yes, they have raised awareness. But we need to go further.  Success is best measured when excessive COVID-19 related measures are terminated.

An Independent Judiciary
Are our COVID-19 related measures legal? Is every regulation, statute, or administrative directive automatically legal by virtue of having been enacted? In Medieval Europe, yes. Today, sometimes not. This is not a theoretical argument, but an established fact.

As a general rule, governments like powerful corporations, do not alter their own aberrant behaviour because it is the right thing to do. They do it because the alternative is more expensive. Not complying with a court order is expensive. Obtaining one is a powerful and practical form of non-violent use of force in a civil society our system contemplates 

We live in a western liberal democracy. It is not perfect, but we have a separation of powers for the same reason a ship has multiple bulkheads to avoid the entire vessel sinking when one is ruptured. Analogously, we have an independent judiciary to safeguard us in situations exactly like the one we are in now. 


But unlike the executive and legislative branches of our system, the judiciary does not do anything on its own. It does not grant relief (an order) where it has not been asked to do so. Someone has to start the process. Further, that someone needs to do it in their own province since the management of health care is generally agreed to be delegated under s 92(13) of our constitution to a provincial mandate. 

What About Other Pressing Tangential Issues?
Consider that if you are concerned about the prospect for an eventual mandatory vaccination program for COVID-19, or the science behind vaccinations in general, the executive rationalizing the measure based on its declaration of a state of emergency, that state of emergency granting extraordinary powers to the executive it otherwise would not have had, and we succeed in demonstrating to the court that there was never a reasonable justification for that state of emergency to begin with, or at least not to the extent in which it was implemented, then indirectly we have destroyed their argument - along with any other doors a state of emergency may have opened for it. This is vital for readers to understand and cannot be underscored enough.

Concurrent efforts in other jurisdictions may involve other pressing tangential issues. While these might be helpful, or even entertaining to follow, any success that they may enjoy does not necessarily achieve anything for people in British Columbia for the above reason.

If the first effort in British Columbia fails, it may preclude the ability to make a second attempt. For that reason it is actually in the best interest for the defendant that the first suit contain as many peripheral issues that weaken its probability of success. If that suit is dismissed, the law can make it difficult for someone to bring a more refined suit later with narrower issues to be tried.

This is why it is essential that our pleadings remain focused on what the desired orders actually turn on, and not tangential issues that would be predicated on a successful constitutional challenge in any event. As tempting as it may be for those passionate about other issues to broaden the scope of what is pled, this can create procedural vulnerabilities that allow a defendant a much lower barrier to disposing of the claim early without the substantive issues actually being heard on their merits. 

That can result in the plaintiff getting hit with special costs (fined). In that event the lawyers get paid regardless, but the client is personally stuck with the consequences. This is why some lawyers joke in the absence of a naive client that they don't lose cases, clients do. We don't want that to happen. A precise, level headed, minimum energy trajectory, free of hyperbole, aimed at an Achilles' heel, is far more sound. 

What Canadian Judges Already Think
"The constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled." – Nova Scotia (A.G.) v Canada (A.G.)  [1951] S.C.R. 31.

"After all, the Constitution is a document for the people and one of the most important goals of any system of dispute resolution is to serve well those who make use of it." – Reference Re Residential Tenancies Act  [1996] 1 S.C.R. 186.

The Solution
The question of the legality of COVID-19 related measures must be put before a judge on whether they are, at the very least, constitutional. If they are not, then they will be struck down. This is not a theoretical concept done routinely by our judicial system.

This campaign intends to responsibly use your funds toward the costs of promoting, filing, and prosecuting a claim for injunctive, declaratory, or other appropriate relief in the Supreme Court of British Columbia in response to the COVID-19 measures and its constitutional implications. The proceeding is currently brought under the Class Proceedings Act, RSBC 1996, c 50. This means that the implications on our potential success would be shared by all citizens, as opposed to just one individual, business, or organization. 

We will provide the maximum financial transparency without compromising litigation. Expenses include disbursements like filing fees, fliers, couriers for service of process, photocopying, legal scholar consultants, expert witnesses, court reporters for examinations for discovery, and so on. But the bulk of the expenses will be allocated towards the lawyers' retainer for drafting and prosecuting the claim. Too much is at stake and so the decision was made early to not cut any corners.

Some of the appropriate legal talent has already been selected, their commitment identified, and some of the case law and arguments already researched. We have already filed. We must ask the court to make a determination as soon as possible before our collective situation continues to degrade further. 

Everyone who follows this campaign will be kept apprised of our public hearing dates as they become known, which court house they will be held at, room number, how to attend, and other important procedural steps along the way. We are strong believers in the open court principle. 

Who Are You?
My name is Kip Warner and I am the Executive Director behind CSASPP. This is not my day job. I am a volunteer doing this pro bono. We will have an organization website up shortly. But in the meantime, you can learn more about me here. You can also reach me directly by email if you still have questions via kip at thevertigo dot com.

 Contributors will not enter into a solicitor-client relationship with a lawyer engaged in the litigation. Our lawyer will have no direct duty to account or report on the litigation to you, but I certainly intend to. The lawyer can only accept instructions from the person who retained the lawyer. If any funds are not used, the law firm will return them to us and we will in turn return them to you. And lastly, my lawyer will have no involvement with the crowdfunding campaign.