Thread by @ZiadFazel

Encouraged by @Sharonadactyl gratitude for public input on Alberta's school mask lawsuit, I am providing a 🧵of observations to stimulate input from other members of the public.

I had a good nap this evening, so here goes.

/c @OrlaghOKelly1 @gilmcgowan

The documents are here, and I would encourage others in the public, especially those skilled in science and medicine, to provide input by tweet, DM or email.

I am not a party to the lawsuit, nor employed by the lawyers or AFL. Just a private citizen.

Here from the Court decision released 19 May:

[67] In addition, on my own motion, I order Dr. Hinshaw to provide a better Certified Record of Proceedings, as set out above, by May 27, 2022, or such other date as the parties agree, or I order.

canlii.org/en/ab/abqb/doc…

It seems that Beaudoin v British Columbia, 2021 BCSC is an important precedent for this school mask lawsuit, including the Record of Proceedings, and the ultimate test under Section 1 of our Charter of Rights & Freedoms.
canlii.ca/t/jdt3v

Back to Alberta. In this school mask case, C.M. v Alberta, 2022 ABQB 357, the Court separated the GoA's actions into:
• "Decision" by CMOH to make Public Health Order to lift mask mandate
• "Prohibition" by Education Min to prevent school boards from reinstating mask mandates.

I submit there is a 3rd action by GoA that merits Judicial Review:
• "Stop Distribution" by Education Minister to suddenly stop distributing so-called "medical grade masks" on 8 February.

Wrote about this extensively at the time.

threadreaderapp.com/thread/1485004…

So I humbly* submit that the lawyers for the Applicants, send a Form 8 to the Minister of Education to provide a Record of Proceedings for the "Prohibition" against masks, and the "Stop Distribution" of the purported "medical masks".

* They may already have done so. 🤷

As of 21 Jan 2022, the Education Minister was happy to update Albertans another 16.4 medical-grade masks were going out the following week, for total 65.6m.

So what changed between 21 Jan and 8 Feb 2022 for Education Min to suddenly prohibit masks?

😱

I've made no secret of my belief the only reason GoA stopped distributing masks, and then prohibited them, is because I successfully reported them to Health Canada for distributing dangerous masks.

Here's the Prohibition from Education Minister, which I have highlighted:
• Yellow for pseudo-statistical evidence justifying the prohibition
• Blue for pseudo-medical or developmental evidence against masks
• Pink for statutory or Charter obligation

alberta.ca/assets/documen…

So it appears the Education Minister is well-prepared to provide a Record of Decision for this Prohibition, and file it in these Proceedings.

However, I see no sign of a Decision for the "Stop Distribution."

Funny that. It just sorta happened without any public record. 🤔

At the end of December, GoA was so adamant that only medical-grade masks would provide adequate safety, they postponed the start of school for a week, from 3 Jan to 10 Jan, in order to buy enough "medical-grade masks".

alberta.ca/release.cfm?xI…

Further, GoA explicitly claimed:

"The decision will be evidence-based using operational information provided by school authorities, case information and other available health data."

Great! Let's see that evidence for that Decision. ↖️

alberta.ca/release.cfm?xI…

Further, the government claimed it had evidence about the lab testing of the masks they selected to meet international standards

and that a properly fitted mask was 98% as effective as an N95.

Great! Let's see that evidence.

If GoA had such good evidence in Jan:
• value of medical-masks to postpone school for a week
• the masks they were distributing were medical-grade, 98% as effective as N95

Then why suddenly stop distributing those masks in Feb?

And prohibit school boards from mandating them?

OK, that's enough about what is NOT in the GoA disclosure. For me, it is often more about what is NOT provided than what IS provided.

So let's dive into what WAS provided...🍽️

Amended Certified Record of Proceedings
• mentions Appendix 2 on page 2, before mentioning Appendix 1
• Starts with Schedule A, then Appendix 2, then Tab 1, then Appendix 1 at Tab 12.
• You don't learn about the existence of Appendix 1 until Line 12 of the table of Schedule A

Page 2

"No reasons were given because the exercise of the authority to make a CMOH Order is a delegated legislative function given to medical officers of health, which includes the CMOH, under the Public Health Act."

CMOH doesn't need Reason to make a Public Health Order?!

Page 2 (cont)

"There is no such document. There is no commencement document that initiates a proceeding that results in the issuance of a CMOH Order. There is in fact no proceeding."

That contradicts what I highlighted Blue, which claims the cabinet meeting is the Proceeding.

Compare "There is no commencement document that initiates a proceeding" with:
• six (6) documents prepared for 8 Feb cabinet meeting to get CMOH's rubber stamp, I mean Order.
• Briefing Memo for the Premier?
• New Evidence Summary from Acting Dir, Health Policy & Evidence?

The Revised 7 Feb Evidence Summary from Scott Fuller, Acting Dir, Health Policy & Evidence:
• sent to 8 people including CMOH Hinshaw
• "Let me know if this is what your [sic] looking for"
• is a Fwd of an email not shown

Where's the email requesting it?

6 sets of civil servants don't spontaneously put together a lot of work to be presented at cabinet meeting the next day, or later that day, without 1/ being put on agenda and 2/ told what to do.

Those are the "commencement documents" GoA pretends doesn't exist.

Where are they?

Page 2 (cont)

"..Dr. Hinshaw and her staff, along with staff from Health’s Emergency Operations Centre, continually monitor and evaluate emerging scientific data regarding COVID-19 in Alberta, across Canada as well as..."

Great! So we should see evidence of that, right?

Page 2 (cont)

"..not possible to reconstruct every record that may have been reviewed prior to the Decision being made. However, Dr. Hinshaw and her staff have made best efforts to identify & provide the documents and information that were most critical & directly relevant.."

Fantastic! That must be the retroactive "evidence summary" produced 31 May, after the Court's deadline, and filed on 1 January.

Tab 12, right? Also Appendix 1?

For an 8 Feb Cabinet decision?

We got a retroactive "Evidence Summary" like that in Sep 2021 for Best Summer Ever!

So let's look at this retroactive, decision-based evidence summary (Hi @DFisman) only prepared 31 May for 8 Feb Decision by Court Order.

First evidence claimed is vax level. Vax levels never go down.

Severe outcomes go up & down regardless of vax level.

No correlation.

Sorry, I meant the GoA filing was on 1 June 2022, not 1 Jan.

CMOH's evidence summary was not created until 31 May, for a Public Health Order signed 8 February.

That only mentioned broader vax eligibility, not higher/any vax levels for any category.

open.alberta.ca/dataset/7ca85f…

Appendix 1 Evidence Summary (cont)

"Daily new case counts were declining from the peak of the Omicron wave."

That's only because the number of PCR tests was cut from 18K/day to ~5K/day, cutting out high-prevalence groups like school kids & parents.

covid-tracker.chi-csm.ca

What happened after CMOH applied these Public Health Orders, lifting the mask mandate in school effective 14 Feb, and all masks on 1 March, among other things?

Test Positivity, Hospitalization & Deaths shot right back up.

What happened to "continually monitor & evaluate"?

What contempt for human life, or the health system the UCP gov purports to protect, when on 31 May, the CMOH tries to backwards justify her Public Health Orders from February..

..which show those Orders backfired and caused 6th Wave.

Using the very same measures (+ Deaths)

All through March, we could see the Public Health Orders the GoA made through February had backfired, launching the 6th Wave.

I don't often call a Minister of the Crown a liar, but GoA promised to monitor Hospital Admissions & Test Positivity.

Premier & Health Min assured us if Admissions stop falling they will revisit the reopening steps. Health Min also claimed he would watch Test Positivity.
• Both went up
• 6th Wave
• GoA did nothing
• Many people died

open.alberta.ca/dataset/7ca85f…

I had been concerned in March that there was a Disconnect between the politicians promising to watch Hospital Admissions and Test Positivity, but the CMOH's Order saying nothing about them.

So if they went up, there was no "WHEREAS" reason for her to revisit her Decision/Order.

But then I saw this shocker in the Appendix 1 (Retroactive Evidence Summary):
• Purported "Decision making process" bolted onto document with crappy screen shot showing cursor and grammar-check error
• Claiming cabinet made the decision, and CMOH just rubber stamped it

So why should there be a Disconnect between:
• What the Premier & Health Minister publicly give as the Reasons & Metrics for dropping the Public Health Measures
• and the CMOH Public Health Order which does not mention them
• if she is only "operationalizing" their Decisions?

Further, the "Decision making process" in the GoA filing purportedly occurs in the "Priorities Implementation Committee of Cabinet (PICC)" [sic]

But GoA has repeatedly claimed they make #COVID19AB decisions in Emergency Management Cabinet Committee.

🤔

alberta.ca/government-com…

Further, Education Minister Adrianna LaGrange is not a member of Priorities Implementation Cabinet Committee (PICC).

She is a member of Emergency Management Cabinet Committee.

So how was she part of the school mask decision if she was not part of the deciding Committee?

The 3 longest, most important documents were scanned as whole-page images, not OCR enabled.

Cannot copy text, search within, or click hyperlinks:
• Scott Fullmer's School Masking Evidence Summary
• Alberta Health Internal Dashboard
• CMOH Retro Evidence Summary

I'm surprised the Court of Queens Bench e-filing clerks allowed the documents to be filed with these serious deficiencies.

I hope GoA rectified this quickly with another submission, or maybe a professional courtesy copy to @Sharonadactyl @OrlaghOKelly1

qb-filing.alberta.ca

OK, winding up here. I'll just pick some low points in the remaining documents.

Tab 1 - Jurisdictional Summary as of 31 Jan:*

Ireland: "Mask mandate and school measures to be removed February 28"

But Ireland didn't decide this until 21 & 22 Feb.*

rte.ie/news/coronavir…

Tab 8 - Scott Fullmer 7 Feb email with School Masking Evidence Summary

also repeated in Tab 11 - 2 March Briefing Note to Health Min

thoroughly (over) critiques pro-mask studies of high quality..

..but uncritically includes this Alachua County, Florida "analysis".

Here is that "analysis".

alachuachronicle.com/data-shows-sch…

It is from the Alachua County [pop 278K] Chronicle, a local paper based on Federalist Paper 51, written by a husband-wife team.

This is what the Acting Director, Health Evidence & Policy, considers suitable scientific evidence.

Okay, I'm completely exhausted, even with long nap earlier.

This is me, crowing a long thread on twitter until I pass out.

Hope I get enough sleep before the rooster rises, and that this helps @OrlaghOKelly1 @Sharonadactyl @gilmcgowan and those 💕kids.

@threadreaderapp unroll please.

Timeline:
• Feb: school mask Applicants for Judicial Review ask GoA for Record of Proceedings
• April: GoA files Certified Record of Proceedings w zero evidence
• May: Applicants haul GoA into Court; Court does not believe GoA
* June: GoA's Amended Certified Record is worse.

@gilmcgowan @Sharonadactyl @BankesNigel Even to me, definitely not a lawyer, the Court's explanation of its 19 May Decision is clear

canlii.org/en/ab/abqb/doc…

so I looked at those blank forms

albertacourts.ca/qb/areas-of-la…

to then see from the AFL's 27 April Affidavit how the parties filled them.

dropbox.com/s/3ip2a34vejf0…

@gilmcgowan @Sharonadactyl @BankesNigel There's not much to these forms.

Form 8 says: Disclose your Record of Proceedings (roughly your evidence and process you followed) to the Court and to us.

Form 9 says: Here for the Court and for you is the Record of Proceedings, which we Certified as complete under the Rules.

@gilmcgowan @Sharonadactyl @BankesNigel And this part of the Rules of Court even I can sort of understand (remember, I am not a lawyer and cannot give legal advice - I'm just a private citizen trying to learn from this).

qp.alberta.ca/1266.cfm?page=…

So let's look at what the Court said of the Notice, from the school mask Applicants, for GoA's Record of Proceedings.

At first I thought the Court was being too critical, as all the Applicants were doing was filling in the form specifically.

But now I see the bigger picture.

Look how much GoA, and CMOH who Certified the original Record of Proceedings, cut out.

You can't say it was technically correct to cross out the lines for the evidence you aren't providing, when you Certify there is no other evidence than the 2 documents you won't provide.

So this brings me back to the larger message I think the Court was conveying in Par 22:

If you are a gov (or CMOH) whose Decision is up for Judicial Review, you know what you have to provide the Court. Not your first rodeo.

Hence the 8-day deadline to stop playing games.

So let's go back to the timeline I laid out 40 minutes ago. Legal background done.

Now let's get into CMOH's:
• original Certified Record provided 14 April, nearly 2 months after 19 Feb Notice
• Amended Certified Record filed 1 Jun under Court Order with 27 May deadline

Even in Amended Certified Record of Proceedings, by Court Order to fix the original, the CMOH still denies evidence was collected & retained for her 8 Feb Decision. She certifies:

"None exist because the process does not allow for it."

Hello, smoking gun 7 Feb Email to CMOH.

How do you Certify a Court Document requiring:

"The evidence and exhibits filed"

with the response

"None exist because the process does not allow for it."

when you have an email sent to you the day before the Decision with specific evidence requested for your decision?

We've all worked in environments where you have important emails, that you need to keep on file.

In ethical workplaces, you have a process to retain this evidence for decisions you make.

Even in unethical workplaces, you keep it as a CYA.

This email is both evidence and CYA.

CMOH even cites it at Tab 8 of the Record as evidence for her Decision, in her 31 May "context" aka retroactive evidence-making Spin she added to the Record of her 8 Feb Decision.

So why was it not disclosed in the original Record, and why is it being denied in Amended Record?

Fullmer's email is 11 detailed pages long, containing hyperlinks, which can't be clicked as GoA scanned it as an image, not copyable text.😡

See contact sheet PDF view, starting at Tab 8 in the upper right.

See who is on it. This is a team, in a process that creates evidence.

When reading this, I was reminded of this investigation by @jennierussell_ and @charlesrusnell.

That 7 Feb email to CMOH should, at worst, be disclosed via FOIP.

But it took a lawsuit for Judicial Review to get this, and CMOH still denied its existence.

thetyee.ca/News/2022/05/1…

Let's examine CMOH's Appendix 1:

"summarizing context of COVID-19 and evidence relevant to masking in schools at the time of the decision."

I've already called it Decision-Based Evidence-Making, and Spin, but it could be legally questionable too.

It is Argument, not Evidence.

Lawyers have explained the difference to me:

• Argument is what you'll tell the Court to persuade them of your position

• Evidence is documentation you provide the Court and the other side, which is fair game for either to use in Argument. eg. a Record of Proceedings.

IMHO, the CMOH has no business putting her unsworn, unsigned 4-page spin written 31 May, labelled Appendix 1 "summarizing context" aka making legal Argument..

..in a "Record of Proceedings" aka Evidence Binder for a decision she made on 8 Feb.

Not at Tab 10, not anywhere.

IMHO, if CMOH wants to put on the record why she made Decision on 8 Feb to lift School Masks, she should do so in an Affidavit.

As she did on 29 July 2021, in Ingram v Alberta lawsuit brought by religious petitioners & freedom activists.

Neither her nor GoA's first rodeo, eh.

That's all I have for tonight.

Reminder that when public advocates are suing a government that denies the existence of evidence even when you haul them into court over & over, it gets expensive.

So far, $8,530 raised on $25,000 goal. Keep it going.

Correction: 12 July 2021 Affidavit, not 29 July 2021 Affidavit.

I remember this excellent analysis of the Sep 2021 evidence summary the CMOH created to obfuscate launching the 4th Wave.

I believe @CPita3 @crwequine @LazarusLong13 do this too.

Would appreciate if you folks could analyze CMOH 1 Jun 22 filing too. DM if any questions.

This thread from U of Ottawa Law Professor @profamirattaran uncovers interesting anti-vax lawsuit filed in BC on 8 Mar 2022 on Charter grounds, and what appears to be a partnership btwn The Democracy Fund + Calgary based JSS Barristers for such cases.

It appears the lawsuit had its first day in court on 10 May 2022.

thedemocracyfund.ca/tdf_clients_in…

One of the JSS partners advancing it is well-known in Alberta. This 2012 article @davecournoyer includes Alberta conservatives back in the news recently.

daveberta.ca/2012/11/doctor…

@davecournoyer As a newbie to this, the BC anti-vax explanations & case law helps explain the AB school mask position better:
• Section 1 of the Charter
• Standard for Judicial Review
• Record of Proceeding
• Charter Rights violated

assets.nationbuilder.com/thedemocracyfu…

@OrlaghOKelly1 @Garossino

There are other lawsuits which TDF is backing, with the support of Rebel, some reliant on JSS. It claims to be an approved charity under the CRA, and I'm not quite clear on how it is different from JCCF.

thedemocracyfund.ca/tags/legal