“Whose Orders Are These?”

In case you missed it, Alberta’s Chief Medical Officer, Deena Hinshaw, testified under oath in court a couple of weeks ago – her *first* appearance giving testimony under oath as to why and how lockdown, mask, and other protocols unfurled in Alberta during COVID. And there is more testimony pending.

JCCF’s John Carpay, whose law firm represents the accused, recently sat down with his podcast producer, Kevin Steele, to discuss the what came to light in this case and to share a somewhat disturbing revelation (which we’re still waiting on to hear the full consequences and report of from the Judge.)

If you’re wondering what past mistakes the provincial government may try to avoid in fall, what liability concerns COVID policymakers will be considering in our province, why events in 2020 and 2021 unfurled the way they did, or are curious about how Alberta’s COVID response decision-makers operated in real time, you may want to have a listen or read below.

John Carpay and Kevin Steele’s discussion on this matter begins about twenty minutes before the end, around minute 48, where Kevin describes what he heard in court; in particular, the nature of Hinshaw’s relationship to the Premier’s Cabinet, and by extension, the emergency orders themselves.


Kevin Steele: (48:00) Ok, I think we’re going to quickly move onto our last topic here, and that was this week’s testimony in Alberta of Public Health Officer, Deena Hinshaw. And I’d like to start by asking myself, what did I do all week? I watched the whole thing. Yeah, I watched the whole thing, and I took a lot of notes. John, do you have any questions for me?

John Carpay: Well, what were the 2, 3, 4, 5 kind of highlights or bombshells I would’ve loved to- and I also I would have hated every minute of it – ’cause the government dishonesty is just awful, but I was so busy running the Justice Centre that I did not listen in.

KS: Yes, indeed. OK well, there were a lot of great highlights and the way it ended up was really great, but I’ll save that for the last. One thing that happened that I thought was pretty cool was when the lawyer that was working for the Justice Centre, Leighton Gray, yes, he informed Deena Hinshaw and Opposing Counsel that he had transcribed all of Deena Hinshaw’s press conferences. So we had this huge binder, you know, that was like 700 pages. He wasn’t filing it as exhibits – this became a big deal by the way – because you know, he wasn’t going to question her on every one. And so they were, you know, “Is this going to be marked as exhibits?”

This went on back and forth and actually stopped the proceedings at one point and caused Gray so that he wouldn’t continue his questioning; it was passed over to the other, his partner, lawyer Jeffrey Rath, so yeah, it was really cool that that’s there. Because of course, you know, not only [does] that exist for this trial, but it becomes a searchable database that I assume other people will be able to use, you know, later on as well. There are the verbal trials, but now it’s a searchable database; I thought that was really cool.

Another thing that was surprising was how little Deena Hinshaw was aware of contrary evidence to her position. As I told you yesterday, John, I was really surprised she didn’t know anything about the Allen lockdown study. This was a study out of the Simon Fraser University that basically looked at all the lockdowns.

JC: Lockdowns have killed at least seven times as many people’s lives saved, and this was Douglas Allen, Simon Fraser University, looking at the impact of lockdowns and doing an estimate how many years of life lost versus saved. It says that lockdowns are lethal. I would expect every Chief Medical Officer in Canada to be, if they’re not aware of that study specifically, at least be aware of other studies. Because there are many many studies, scientific, peer-reviewed studies, that have come out in the past year about the nefarious impact of lockdowns. Every government official should be aware of it, and the lack of awareness shows this bias that they’re operating on – this assumption that their government policies violating our rights and freedoms are good and wonderful and producing great results, and they’re not looking very hard at contrary evidence.

KS: Well I would say that’s true, but it’s also true, in her defence, she did mention several times that she was aware that lockdowns caused harms, of course, but she felt, you know, she had to pick a balance or create a balance between the harms of the lockdowns caused and the harms of the disease spreading through the community. That was her defence of that, so-

JC: Which you can’t do if you’re largely ignorant of the harms, and if they’re only vague generalities – you’re not in a position actually to develop policies that are a good balance. But continue with what happened in court.

KS: Well, they did get to question her about it; she had to read the abstract right there, you know, so that’s all Leighton Gray wanted to ask her about, was the abstract. So he had a couple of questions about that after she read it basically as the trial continued. But the really surprising thing to me was that she’d never heard of Uttar Pradesh.

JC: *laughs* Had never heard of the Indian state where Ivermectin was used to save thousands of lives?

KS: It wasn’t clear whether she never heard of… it seemed like she had never heard of the province at all, like you know, that she had never… wasn’t aware it existed. But it was a pretty big deal, I recall, when we were talking about it. It became a bigger deal actually after we talked about it, way back in 2020. We were talking about it somewhere in there, and yet she didn’t know anything about it, so of course he couldn’t ask her anything about it.

He’s going to ask about the protocols, which would eventually have led to questions about Ivermectin. Well she did get her-

JC: I recall her saying, asserting, that there’s just no difference in… She refers to studies suggesting that Ivermectin is not helpful. My understanding is that those studies were not in respect of the proper protocol, because advocates of Ivermectin say you have to take it in conjunction with vitamin D and vitamin C and Quercetin, and when you take it with those things, then the Ivermectin helps the vitamin D and vitamin C to do their work. But if you give people only Ivermectin and nothing else without the vitamins D and C, then Ivermectin’s not all that helpful.

So did that come out in the court proceedings?

KS: No, it didn’t, no. I mean it was, you know, just in passing. I mean, she was aware of studies (just sort of obliquely, ‘couldn’t recall’). She was aware of studies of vitamin D and Ivermectin and hydroxychloroquine. She was very dismissive of these, though. She said, you know, they all never showed any positive results, and in fact, hydroxychloroquine and Ivermectin both showed severe negative reactions. Which I was kind of surprised at. She also couldn’t remember when monoclonal antibodies became available in the province as well, so she was having a little difficulty remembering anything.

JC: She sounds like she’s in her own little bubble; she’s probably in her own echo chamber with with her and Jason Kenney kind of feeding each other the same messages all the time.

KS: It could be, I mean, I kind of had the impression that that’s what it was it was. Maybe they had her isolated somewhere, you know? They only gave her the information they wanted her to have, ok?

I mean overall her answers were very repetitive, you know. She’d always start things with qualifiers like, “It’s really important to remember at that time…” and then, you know, she would have pat answers: “We were fighting a novel virus that posed a significant threat to the community…” She said that, I think, 100 times. And “We need to balance…” I already mentioned that one you know, “You need to balance”-

JC: You’re saying she was evasive in her answers?

KS: That’s right. There was no ‘yes’ or ‘no’ in her answers, it was always just some sort of pat thing she kind of trotted out. Actually, that was remarked upon by Jeffrey Rath at one point, at a very significant time; I’ll get to that in a second. She had, yeah, difficult time recalling studies that she had been shown, because of course this is something that the government, I think, by law has to do, so they have to understand the harms they’re going to cause.

She would always talk about, you know, other ministries doing studies and things like this, and she couldn’t recall if she had seen their work. This situation led her to talk an awful lot about sort of the chain of command or the ‘chain of decision-making’, as she called it, and this is where it got really interesting, because she was always talking about how, you know, she provided advice to the Cabinet committee, and then the Cabinet committee would create policy, and then the policy would form the basis for her medical orders, ok?

That sounds pretty boring, straightforward. Except. Except when Jeffrey Rath… it was Leighton Gray that got her to say this several times, and that was pretty good setting her up, because Rath at one point said,

Well, whose orders are these? Are these *her* orders, or are they orders of the Cabinet?

and as I texted somebody at the time, it was like he threw a pot of boiling water at them, you know? They just, you know – whoa, something happened! – they immediately started objecting to that, and it all got shelved. What had happened was on Wednesday, I think it was, no it was Tuesday. Tuesday, Gray got stopped because of the introduction of all this evidence of the press conferences, so Rath had to come up early. That’s when they first asked about, “Whose orders are these?” Ok? Then the next day, there was this back and forth, and Gray had to finish his questioning after the ruling about the press conferences being introduced and things like that so he finishes, then Rath comes on in the afternoon.

Eventually it gets back to this question: whose orders are these, right?

And, you know, at that time, the government lawyers pulled out of their file a written document signed by somebody or other that up gave Deena Hinshaw-

JC: Clerk of the Privy Council or some such equivalent. Something to that effect. Yeah, senior bureaucrat. Cabinet Secretary.

KS: Right, yeah…. giving Deena Hinshaw Cabinet privilege or Executive privilege. In other words, she couldn’t talk about anything that the Cabinet said to her. And they not only pulled this out, this was signed in February, but it was never filed with the Court. So they were, to me, and actually to Jeffrey Rath as well, they obviously had this thing stashed. They didn’t want to show them this, so they went through all this questioning of the Public Health Officer and she had Cabinet immunity, but nobody knew it.

So, you know, all of a sudden they yanked this out, and then they follow with this *perfect* presentation on Cabinet immunity. I mean, it was obviously… it was really well done; obviously had been well thought out, well in advance. And they also had a submission that was going to go to the the Judge overnight, you know, this big binder of their submission. I mean, it was just really slick.

So the next day, Rath gets to reply to this, and he remarks, ‘It is, you know, they didn’t get to know any of this stuff beforehand.’ And this was a vital question, because, you know, if the Cabinet was making political decisions and policy decisions that were overriding her medical decisions, and these policy decisions were *harsher* measures than what she was applying, then of course they’re not justifiable from a medical perspective.

So, that became sort of the issue, and the Judge, at that point, developed a solution, which I thought was brilliant. She said, ‘I’m going to go in camera with the witness; I’m going to ask her three questions, and then, depending on the answers, I will make my ruling whether she has Cabinet immunity or not, OK?’

And this is wild, because, you know, the government asked for an adjournment; they had to go seek advice from somebody else. My guess was that phones were blowing up all over Edmonton on the leg [legislature], but they took a 45 minute adjournment while they were waiting for instructions, and then they had to take another 15 minutes until they got their instructions, and what their instructions were was if the Judge rules that Deena Hinshaw has Cabinet immunity, then it all ends. But, if she [the Judge] rules that she [Deena Hinshaw] doesn’t [have Cabinet immunity], the government is going to immediately apply for a stay of proceedings, and they’re going to appeal that ruling.

In other words: ‘pull out all the stops to protect the politicians.’

So, that’s where it ended, actually, because the rest of Deena Hinshaw’s questioning by Jeffrey Rath, well, that just kind of petered out. The whole thing got stopped at that point on Thursday afternoon at around 1:30, and the Judge couldn’t really- She said she wouldn’t be making her decision for a week, depending on what happens then. We don’t know whether it’s going to go to a written arguments, concluding arguments at that time, or there’s going to be a stay of proceedings, or Jeffrey Rath is going to get to ask that question.

Now, to me, this is really important because of course, you know, if governments… The questions that she devised – the Judge devised – was basically, you know, ‘Did they ever overrule your medical advice to apply harsher measures for political or policy reasons?’ That’s pretty important, that’s sort of germane to the case. And I hope when we get the transcripts we’ll be able to highlight and show everybody Jeffrey Rath’s speech, ’cause you know he was just speaking off the cuff and he laid it out, just like, you know, directly, why this was very important.

If they set a precedent here, you know, this will be for the Commonwealth. If she rules against Cabinet privilege, that was one of the reasons that they said they would ask for a stay at appeal, because it was a precedent-setting decision, so I think it’s big time, right? It could apply to the federal case, could apply to Commonwealth cases, and you know there’s been a lot of lockdowns in Commonwealth countries.

But to me, the test that she devised – the Judge devised – was brilliant, and that in and of itself, regardless of how she rules, I think should inform other judges handling cases where that objection is made as well. You know, where they have to worry about, ‘Were these demonstrably justified from a medical point of view,’ because that’s ultimately how they were justified, right? Somebody accused the Government of hiding behind the Chief Medical Officers in this regard, so there you go.

JC: Sounds like what happened in Court in a way was a microcosm of the political dynamic in the past two years, where I’ve talked about “Premier Hinshaw and her lovely assistant, Jason.” Tongue-in-cheek, but still also seriously though, because you’ve got these irresponsible politicians that will say, “Well, you know, hey, don’t blame me if you’re getting a $2,000 ticket for spending Christmas with your family. We’re just following the doctor’s advice.”

That’s an abdication of responsibility, and I think it’s a very fair question of Deena Hinshaw or any other Chief Medical Officer: ‘Were there situations where you recommended severe violations of Charter freedoms and the Cabinet said, ‘Oh no, we’re not doing that, we’re going to do… lesser…’

KS: No, it’s the other way-

JC: Right, but either way, it’s the same question: who’s in charge?

So were there cases where the Chief Medical Officer recommended minor violations of Charter rights and freedoms, and the Cabinet came in and said ‘No, we’re going to violate these rights and freedoms severely,’ or conversely, where the Chief Medical Officer said, ‘Oh, we need some severe restrictions on Charter rights and freedoms’ and the Cabinet said, ‘Oh no, we’re not going to go that far’?

And I think… there’s no reason… I understand the importance of Cabinet secrecy, because secrecy permits for candor, and if you want it would be the same thing what’s going on in the boardroom of company: ‘Well, it’s private, it belongs to the company.’ If you want the freedom to speak candidly, then you need to have that secrecy, knowing that what you’re saying is going to be secret and confidential for that situation. This is why the Catholic Church has the seal of the confessional: the principle behind it is, you won’t have an environment where the penitent, the sinner, is going to confess his sins – feels confident in freely confessing all of his sins, no matter how grave, no matter how disgusting, no matter how perverse. So it’s like, the secrecy gives the, empowers the candor. And so, we have cabinet secrecy so that the Cabinet ministers can speak very candidly without having to be concerned, which you cannot do if Cabinet meetings are in public and they’re being live streamed. Millions of people listening in, you inevitably get into some kind of political posturing, and you can’t be, you know, you can’t speak the truth.

So I understand the cabinet secrecy; I don’t see why that should apply between as between the Chief Medical Officer, whether her recommendations are getting watered down or beefed up by Cabinet, either way, I don’t know why the public has no right to know about that.

KS: That’s kind of what Jeffrey Rath said. Only he said it much better than you or I, actually, but it’s a big one. It actually surprised the heck out of me. A lot of this, like I say, was set up by the methodical procedure of Leighton Gray, and it looked to me like they had pretty much set it up this way. These were the things they wanted to know, and I think I all Albertans want to know, and I think everybody in every province wants to know, and in other countries as well: who made these decisions? Were they political decisions, or were they simply medical decisions?

Listen to the full episode here:

JCCF Podcast, April 11, 2022 – S03E15 The Charter’s Ruby Red Alert

History of some of this lockdown challenge can be found here.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: