by The Honourable A. Brian Peckford
November 15, 2024
If You Are Interested In What Is Happening To Our Constitution Follow This : My Article , Lawyer Alexander’s Response, My Response, And Alexander Final Response That Closes The Discussion!
More Canadian Court Violation Of Our Freedom Of Speech Rights —Dr. Trozzi Rights Denied By Ontario Court Of Appeal!
This unbelievable , constitution breaking by our Courts !
Rebel News reports today :
“In a sobering decision, three Ontario court justices have upheld an October 2023 tribunal ruling that found Dr. Mark Trozzi guilty of professional misconduct and incompetence, which ultimately led to the revocation of his medical license. The justices determined that while Dr. Trozzi is free to express his views, his unrefuted claims on the COVID-19 science, coined “misinformation,” crossed a line that deserved severe professional consequences.
Dr. Trozzi, a now former emergency room physician, had been under investigation by the College of Physicians and Surgeons of Ontario (CPSO) for his vocal opposition to public health measures and his claims about what he refers to as a “Criminal COVID Enterprise.” Despite his legal team’s efforts to defend his right to express his beliefs, the court upheld the tribunals decision in branding him “ungovernable.”
Michael Alexander , Dr. Trozzi’s lawyer exclaims as reported by Rebel News:
“Alexander contends that further legal battles are unlikely to succeed, given that the Court of Appeal appears indifferent to the right to free expression when it challenges politically-favoured narratives, and continues to unquestioningly uphold the “safe and effective” mantra promoted by pharmaceutical interests.
“They have already sent the message that we don’t want these COVID-19 loud mouth professionals messing up our administrative state,” says Alexander.
“If you’re somebody who speaks too politically like Jordan Peterson, the court of appeal is not going to hear whether somebody has trampled on your right to free expression.
If you’ve been discussing COVID science, you’re not going to get a hearing.
If you’re arguing that the college should never have proceeded against you because it didn’t have reasonable and probable grounds for its investigation, the court of appeal is not going to hear you.
We have a crisis of legitimacy in our court system now.”
“Blog Comment :
Alexander is right : The highest Court in our most populous Province has abused our Charter of Rights and Freedoms , Part 1, Section 2
“Fundamental freedoms
2 Everyone has the following fundamental freedoms:
- (a) freedom of conscience and religion;
- (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
- (c) freedom of peaceful assembly; and
- (d) freedom of association.”
Source : Rebel News
Hi Brian,
Thank you very much for covering the Trozzi case, infra.
I wanted to provide some further information about my overall strategy in the Trozzi case and other physician cases I’ve argued. Please feel free to publish this reply, if you feel your readers might profit from it.
First, I am totally onboard with your own view that section 1 of the Charter was supposed to be reserved for truly extreme situations.
Having said that, my challenge was to find a way to rescue the Charter from section 1 in some measure. And, ironically, I found the way in the case that articulated the four-part section 1 test, R. v. Oakes (1987).
The key to unlocking the value of Oakes is to examine how the Court treated the final part of the four-part test, where a court is required to balance the good achieved by the statutory objective used to justify limiting a fundamental right against the harm done to the individual by the infringement of the right.
Under part four, the government was held to a high evidentiary standard — it had to provide “cogent and persuasive” evidence to succeed. Very clearly, this was a higher standard than the civil standard, which is the balance of probabilities. Setting the higher standard was consistent with the idea that the individual’s fundamental rights should take priority over the government’s objectives in most situations. However, in subsequent cases, the Court re-interpreted the “cogent and persuasive” standard in Oakes and equated it with the balance of probabilities. Under the lower standard, government has succeeded most of the time and the Charter has become, more or less, a worthless document.
Nevertheless, Oakes reveals an entirely different way of approaching section 1.
Oakes dealt with a Criminal Code provision relating to a drug offence, which had the effect of eliminating the presumption of innocence. In effect, the provision created an automatic finding that an individual in possession of drugs under certain circumstances was necessarily trafficking.
The Court ruled that the provision was unconstitutional because, in eliminating the presumption of innocence, it subverted section 11 (d) of the Charter, which guarantees the presumption of innocence, and also subverted the premise upon which the whole criminal law system is based, which, of course, is also the presumption of innocence. Thus, the Court did not weigh the government’s evidence of the good the provision secured against the harm done to the individual’s fundamental right because the provision subverted the core purpose of the right and was, therefore, wrong in itself.
This approach can be applied to a Charter analysis of freedom of expression. There is abundant case law reaching back as far as 1938 (the Alberta Reference case) to the effect that the core purpose of freedom of speech, and later freedom of expression, is the protection of minority and dissenting opinions, particularly in matters of public importance. Thus, any government attempt to censor expression merely because it reflects a minority or dissenting point of view must be wrong in itself and cannot stand. This approach eliminates balancing under section 1 and secures an absolute right to freedom of expression.
I rolled out this argument in the Trozzi case and the Court rejected it on the ground that professional regulation justifies placing limits on a doctor’s right to criticize public health policies and recommendations. This ruling cannot be squared with the fact that the Charter is the “Supreme Law of Canada.” Further, it cannot be reconciled with the fact that public health “policies” and “recommendations” do not have the force of law according to the Ontario Court of Appeal. How can a professional such as Dr. Trozzi be doing anything unlawful when he is merely criticizing instruments that themselves have no legal force or standing?
Michael:
Thanks for your response .
It seems ,however , that the Courts in their dysfunctional state have decided to not just interpret law but make it and go so far as ignoring parts of the Constitution as they see fit.
For example, the opening words of the Charter have been ignored. Almost every single Charter decision has ignored serious consideration of this section , yet it is the framework that the authors established through which Charter decisions are to be considered.
In addition, many recent court decisions in interpreting Section 1 of the Charter have ignored ‘ demonstrably justify’ often using just the word justify or some times just the word reasonable. This is a complete twisting of the language of the Section .
And this is to say nothing of the intent of Section 1 being completely ignored or twisted.
So , I am not surprised that the Ontario Court of Appeal rejected your use of an argument from the Oakes Decision or ignoring your Supreme Law of Canada argument.
We are up against a judicial system that feels free to ‘manipulate’ the Constitution as it sees fit.
I fear nothing short of like minded people like ourselves being able to re-open the Constitution and change the wording accordingly will real ‘sense ‘ prevail and we know how unlikely that is ———but even if by some miracle that did happen we know that even then if a like judiciary and mind set exists as it does now ( can the mind set be changed?) what is written will be ignored and twisted again.
Brian
And finally Michael replies:
Totally in agreement, Brian. Thanks for your reply. The path forward is political, not legal.
MA