Ridiculous procedural excuse to boot Adamson case out of Court

Ridiculous procedural excuse to boot Adamson case out of Court

You mean to tell me that his team of topflight lawyers FORGOT ? to put in a Notice of Constitutional Question? !
I hardly think so.

This is only the beginning. The tyrants who have trampled our rights these last 15 months simply don’t want this case to see the light of day.

In November 2020, Skelly’s restaurant in west Toronto became a high-profile flashpoint when he defied orders to close indoor dining to help stop the spread of COVID-19. Anti-lockdown protesters clashed with police, who arrived in large numbers to enforce compliance.

Skelly became an early focus of anti-lockdown anger. He maintains the order and the government’s response were unjustified and unconstitutional.

The city sought a court order restraining Skelly and his company, Adamson Barbecue Limited, from contravening the Reopening Ontario Act, the province’s regulations on what can and cannot be done in the fight against the virus that causes COVID-19.

That restraining order, opposed by Skelly, is what brought the parties to court Monday, but for Skelly, it was about far more than his ability to serve food without government permission.

Supporters gather and barbecue outside Adamson Barbecue on Nov. 27, 2020.
Supporters gather and barbecue outside Adamson Barbecue on Nov. 27, 2020. Photo by Ernest Doroszuk/Postmedia

Leading up to Monday’s hearing, Adamson Barbeque’s website was pushing his legal case along with his brisket and short ribs, a court challenge branded the “the BBQ Rebellion.”

“My lawsuit has very little to do with my restaurant. It is a constitutional question of the Reopening Ontario Act, and the evidence (or lack thereof) used to justify it,” Skelly said in a written statement prior to the hearing’s start.

“If this challenge is successful, entrepreneurs can reopen their restaurants, bars, gyms and salons, children can go back to school, and everyone can gather together to celebrate, mourn and worship.”

He refers to it as Canada’s most important constitutional case.

“My lawyers tell me that the courts tend to rule with public opinion. While the tides are turning, the media won’t report any counter-narrative, so much of the public consciousness in Canada is still blanketed by fear. I’ve done the best I can to disseminate this information, the rest is up to us on the big day,” he wrote to supporters.

In response, his case attracted a rush of interest.

People logging in to watch the online hearing quickly exceeded the maximum capacity of 500 long before court started, meaning there wasn’t room for the judge or the province’s lead lawyer to be let into the hearing.

Most observers seemed to be Skelly supporters. One man was wearing a gas mask until the court asked cameras be turned off to reduce broadcast bandwidth. The online names of some observers included Open Ontario, Ontario Stands with Adam, WhoDoYouServe, GoAdamGo, Dr. Freedom, SeeThe Truth and Let’s Go Adam!!!!.

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A plea from the court registrar for some to volunteer to leave eventually allowed the judicial participants in, and for the hearing to convene.

Observers didn’t get the fireworks or debate they had hoped for. Instead, they got a muted argument over judicial jurisdiction.

Zachary Green, representing the province of Ontario, argued there was no procedural basis to entertain Skelly’s constitutional objections.

He said Skelly has not embarked on any court application claiming relief against the province, he has only contested Ontario’s motion against him and his restaurant. Green said that violates established rules of procedure.

In court materials, the province said Skelly’s wide objections about the COVID response — called “far-fetched grievances” — far exceed the scope of the government’s action against him, which is only to close his restaurant, when everyone is told to, for health reasons.

“Indeed, they are vexatious,” the government’s court filing says.

Michael Swinwood, representing Skelly, replied that the constitutional element of Skelly’s defence has been clear from the start. If the province objected to his constitutional questions, they should have asked a judge to strike them out of their reply to the court.

“It is straightforward, and we complied with what was asked of us,” Swinwood told court.

Pre-trial procedures, including judicial case management conferences and the examination and cross-examination of expert witnesses, went ahead arguing the wider constitutional issues without any complaint or objection from the province, he said.

“It was always understood to be a notice for constitutional relief,” Swinwood said.

In court materials, Swinwood said the government’s responses to COVID-19 were not based on scientific principles or respect for human rights and are more intrusive than available alternatives.

“The epidemic of fear has ruled people and governments, and not sound scientific analysis,” Skelly’s materials say.

Judge Jasmine Akbarali, of the Ontario Superior Court of Justice, briefly adjourned court to deliberate before returning with her verdict.

“I regret to say, I do not think I have the jurisdiction to proceed to deal with these issues on their merits today,” she said.

“I do not think the hearing has been constituted in such a way to give me that jurisdiction, and it is in nobody’s interest to go ahead with the two-day hearing that is easily vulnerable on appeal on the basis that I didn’t have jurisdiction.”

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Written reasons were to be issued later.

Supporters of Skelly seemed upset with the ruling.

“Bullshit,” said one to the court. “This is injustice,” said another. The hearing was terminated just as many others were unmuting their microphones.

After court, Skelly’s lawyer expressed dissatisfaction with the outcome.

“The courts have no appetite for constitutional challenges to COVID-19 lockdowns and protocols,” Swinwood told National Post.

“Technical procedure is to rule over substance. Our freedoms are in peril and the court refused to take jurisdiction over the matter despite the rules that are designed to be flexible so that serious matters can be heard and not summarily dealt with.

“There is something deeply amiss,” he said.

Green deferred to the Ministry of the Attorney General’s spokesman for comment on the case. The ministry declined to comment, “as this matter is before the court,” said spokesman Brian Gray.

On Twitter, Adamson Barbecue’s branded account has been railing against COVID restrictions and related issues, including vaccinations, which they call “experimental gene therapy.”

The matter is expected to return to court at a later date, once a constitutional application is filed in the court.