By Katherine Kowalchuk: 

What put the entire world into a state of great fear in March of 2020? It was the dire prediction of Dr. Neil Ferguson of Imperial College London, who claimed that Covid would be like the Spanish Flu of 1918. The Spanish Flu killed between 50 and 100 million people, at a time when world population was barely a fourth of what it is today. Most victims were in their 20s, 30s and 40s, so the Spanish Flu had a huge impact on population life expectancy and left many children as orphans. Alberta Premier Jason Kenney has publicly compared Covid to the Spanish Flu of 1918.

Media messaging aside, government data tells us that Covid has much more in common with the annual flu than it does with the Spanish Flu. According to Worldometer, from March of 2020 to January of 2022 there were 5,539,206 people who died with Covid over a period of 22 months. These 5.5 million deaths must be seen in the context of 110 million total deaths during the same time period, and in the context of world population today being just shy of 8 billion souls. If Covid were as bad as the Spanish Flu, we would see between 200 million and 400 million deaths by now, not 5.5 million. Regarding impact on life expectancy, the vast majority of people who died with Covid were elderly, in very poor health, or both. In contrast, the Spanish Flu killed mostly young and healthy people.

Mankind’s historical experiences with propaganda teach us that many people (and likely most people), when hearing a message repeatedly, accept it as true.  

Since lockdowns were imposed in March of 2020, the average Canadian has been told thousands of times that Covid is very scary. During the past 23 months, just one radio station, broadcasting Covid news four times per hour for 18 hours per day, has told its listening audience more than 50,000 times to be very afraid of Covid. 

That’s just one radio station. Consider how many radio, television, print and internet media outlets that exist, and multiply that large number by 50,000. Then consider the government’s radio, television, print and billboard advertising, telling us daily that our fight against Covid must be everyone’s top priority. Then consider all the face masks worn by tens of millions of Canadians daily, each mask proclaiming that Covid is an unusually deadly killer that all should fear.

Next consider the flagrant violations of our freedoms to move, travel, associate, assemble and worship in the past 23 months, and the state’s aggressive removal of our legitimate right to determine what does or does not get injected into our own bodies. The law is a teacher, whether we like it or not, and health orders that violate our Charter freedoms are teaching Canadians that Covid (including its milder variants) is so terrible that it must be stopped at all costs, even to the point of ending Canada as a free and democratic society.

Judges are fallible human beings, fully capable of bias, and inevitably influenced by the same cultural, political, media and ideological currents to which all people are susceptible. Judges see the same billboards and hear the same media messaging that all Canadians do. Why would anyone expect Canadian judges to be immune to the virus of fear?

And yet, judges are expected to answer the high calling of rendering judgments based on the evidence presented in court, not on government messaging as propagated daily by media.

In spite of facts and reality, relentless government and media propaganda has put many Canadians, including many judges, into a state of irrational fear. Once a person believes the line that Covid is an unusually deadly killer and much worse than a bad annual flu, it becomes very easy to accept the government’s other claims: (1) no viable treatments for Covid exist; (2) lockdown measures save lives; (3) lockdowns do more good than harm; (4) vaccines are the only way to avoid lockdowns; (5) vaccines stop the spread of Covid; and, (6) vaccines should be mandatory for everyone. Without the Covid fear factor clouding their judgment, these six claims would not be readily embraced by judges.

In Canada and around the world, these six government claims, along with the narrative that Covid is an unusually deadly killer, are being contested in courts by citizens seeking to reclaim their rights and freedoms. The United States and other countries have witnessed encouraging court victories for freedom and human rights.

Sadly, some Canadian judges have clearly embraced government propaganda as factual, without even bothering to explain why or how they arrived at their conclusions.

The case of O.M.S. v E.J.S. concerns a dispute between mother and father as to whether their 12-year-old daughter should be injected with the Covid vaccine. Saskatchewan Court of Queen’s Bench Justice Michael Megaw declared: “I am able to conclude without the necessity of any specific proof that the possibility of contracting the Covid-19 virus poses a serious and significant health risk to people generally, including children and adults.” 

Yet a brief and objective review of Covid data on Canada’s federal and provincial government websites would quickly inform Justice Megaw that Covid is statistically as likely to harm children as are lightning strikes. Justice Megaw’s declaration that Covid “poses a serious and significant health risk” to children is false.

Justice Megaw’s assertion that Covid poses “a serious and significant health risk to people generally” is equally false, because the government’s own data and statistics tell us that (with few exceptions) Covid poses a serious threat only to those who are very elderly and sick with one or more serious health conditions. Justice Megaw’s declaration that Covid should be feared by all people is false.

Justice Megaw goes on to declare that “the Pfizer Covid-19 vaccination is safe and effective for use in people, including both adults and children. I form this conclusion by taking judicial notice of the vaccine approval process in Canada and the approval by the health authorities of this particular vaccine.”

Here Justice Megaw expresses blind faith in government, supremely confident that government is infallible in matters of health and medicine. He declares his “facts” to be “so notorious as not to be the subject of dispute among reasonable people.” He declares that information put forth by Health Canada and the Saskatchewan Health Authority “cannot reasonably be disputed to be accurate.” In like manner, Justice Johnna Kubik granted the mother sole decision making in respect of whether two Alberta children, ages 10 and 12, get injected, as well as, final decision-making over all other health related issues, not pertaining to Covid-19, based on her view that the father was an “anti-vaxxer” and “conspiracy theorist”. If all judges accept government as infallible, then all Charter claims are doomed to fail.

Yet neither Justice Megaw nor Justice Kubik nor anybody else can dispute the fact that the Covid shots have not been subjected to any long-term safety testing. They were created rapidly over a period of months, as opposed to the years or decades that it has taken to develop other vaccines.

It makes sense for those who feel threatened by Covid to want this vaccine. But injecting children is another matter entirely, because children are not threatened by Covid. Judges have no idea about what harms this new vaccine might inflict on children five or ten years from now. Yet Justice Megaw ruled that “it is in this child’s best interest to be vaccinated as protection against the Covid-19 virus,” and ordered the mother to pay $2,000 to the father in court costs.

In a similar vein, Alberta Court of Queen’s Bench Justice Adam Germain fully embraces the government-and-media narrative, without considering its accuracy or lack thereof. When imposing sentence on the outspoken and politically active pastor Artur Pawlowski, Justice Germain declared that the pastor and his brother were not following “the science on COVID-19,” were “on the wrong side of science, history, and common sense on this issue,” and “have contributed to this ominous health situation by their defiance of the health rules and their public posturing, which encourages others to doubt the legitimacy of the pandemic and to disobey the [Alberta Health Services] Orders designed to protect them.”

Justice Germain fully believes all the government’s claims, without having assessed any evidence about their merit, or lack thereof. Being exposed to the “Covid is really scary” message thousands of times is no excuse for disregarding important facts.

The Charter requires governments to justify “demonstrably,” with persuasive evidence, any law, policy or health order that violates any Charter right or freedom. Some Canadian judges are failing in their duty to protect citizens from irrational laws that violate our freedoms. If most judges merely follow public opinion and fail to hold governments to account, Canadians still have one last resort available to them. Canadians can and should use their freedoms of expression, association and peaceful assembly to educate the public about the fact that Covid is not the Spanish Flu of 1918, or anything close to it. If Canada’s judges are going to uphold the government’s violation of our Charter rights and freedoms based on public opinion, without properly and open-mindedly assessing evidence, then those who love freedom and truth have no alternative but to change public opinion.

Katherine Kowalchuk is an Alberta Barrister and Solicitor.