Unlikely Heroes of Justice; Why We Are Stepping Up | Kip Warner, CSASPP
September 15, 2022
- How does a software engineer get involved in a legal case against govt of BC?
- Who are CSASPP suing for harms against people of BC?
- What damage compensations are they pursuing?
- What is public interest standing and why did it matter that they got it?
- Why does this case matter beyond BC?
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Kip Warner, Will Dove
Will Dove 00:15
There are at present a number of legal actions being taken against our federal and provincial governments for the violations of our rights and the severe impact of these violations upon the people. My guest today Kip Warner is the executive director of the Canadian Society for the Advancement of Science and Public Policy. The CSA SPP is entirely run by volunteers, and is pursuing legal action against the BC government for the harms caused to the people of British Columbia by the ongoing unjustified state of emergency. They are currently active on a number of social media channels. They have been in action since January of 2021. And they are now crowdfunding to finance their ongoing efforts. Kip is here today to discuss their plans and legal strategy. Kip, welcome to the show.
Kip Warner 01:04
Thank you for having me. Well, now first,
Will Dove 01:07
before we get into the legal strategy, I happen to know a little bit about your background, and you’re very unlikely person to be doing this. You’re not a lawyer. In fact, I believe you’re a software engineer. So how did you come to start this organization and be involved with it?
Kip Warner 01:20
Yeah, it’s a good question. People ask me that all the time. And you’re right, my background is not in law. You know, I wanted to be a lawyer never wanted to go to law school. My background, as you say, is in software, my formal background is actually in artificial intelligence. And really short summary, this basically got dumped on me. So I was quite happy to be a passive observer in the background. There’s a large number of people in our community that had been lobbying me. And someone just assumed that I already started a campaign of some sort, before I had, or even mentioned anything about it. And so a lot of members of our community had asked me to do something about it, why me specifically, I’m still uncertain about that. But, you know, time went on, I made some suggestions to proper process is through the courts. And I came up with some tips and so on for people. But after maybe a month or so I could see that the community, while well intentioned, was still floundering with getting things going. And they just didn’t have the tools needed really in order to effectuate the kind of changes that they wanted to see. So I figured, if you want something done, right, as your grandma told you, you need to do it yourself. So this got dumped on me, I got started on it. And I told people that if we’re going to do this, we have to do it properly. So I have a background working in industry extensively to software space, and startups and so on. And so use a lot of the knowledge that I have in that area, and try to inform how we do our process our campaign. And we began by incorporating a nonprofit with bylaws, constitution and so on, to basically act as a logical entity to organize all the efforts or resources and so on underneath that, right.
Will Dove 03:16
Now, you’ve got a number of legal actions that you’re pursuing. Would you please explain those to our audience?
Kip Warner 03:21
Certainly. So we began actually, by having just a single proceeding, are really I guess, the technical term is in action. And the first one was our class action. And that’s what’s brought underneath the Class Proceedings Act. It’s a provincial statute that allows a large group of people rather than just one who have a common interest, and they’ve all been injured or affected in some way, in order to bring a claim before the courts. And so like a typical example of that would be, you know, an example people can understand is you buy a blender or something like that, from Vita Mix or something which makes great blenders by the way. And let’s say there’s something defective about it, there’s some plastic or something that comes off inside when you turn it on. But they’ve shipped, you know, 100,000 of these units, rather than one person going to court and suing for a defective product. Maybe they were injured, maybe their kid ate a little bit of plastic or something. If that’s the case, it doesn’t make sense to go to court and sue because like say, nobody got hurt, it was just a nuisance. It doesn’t make sense to spend $1000s 10s of $1000s of dollars going to court for one person to get, you know, a nominal judgment of maybe a few $100 to cost of replacing the blender. And so class actions allow all of those people to come together and bring a common claim against a defendant. And so the objectives are three in nature, access to justice, judicial economy and behavior modification. It’s the philosophy of class action, so access to justice means If you bought that, that blender and say you can’t afford to go to court, this gives you an option to do it. Because it’s everyone too, going together. Judicial economy means rather than having 5,000 people running to the courthouse suing the same person and jamming up the system so that no one gets hearing days until the next Ice Age. This also creates a mechanism and efficient mechanism so that they’re all heard together, then behaviour modification, a third point, what that’s intended to do is encourage the manufacturer to think more carefully about how they build their products, right? as an example. So we brought a class proceeding and beginning this sometime in January of 2021. I don’t remember the exact date. And that is going for certification this December, that’s where a judge reviews the state of our class action, our pleadings, and determines whether or not there’s a common interest of all these fasteners doesn’t determine whether we’re right, whether our provincial health officer was wrong. It’s just a procedural step but a very important one to determine whether or not this is a suit to see sealing our provincial health officer, or is this three, four or 5 million people
Will Dove 06:11
Now, to know your website can be accessed at suebonnie.ca? So the question I want to ask is, is your class action directed at the entirety of the BC government? Or specifically Bonnie Henry?
Kip Warner 06:25
It’s a good question. And the answer is both. Yeah. So we’ve named the provincial crown as the defendant. But we’ve also named Dr. Bonnie Henry, our provincial health officer, individually as a defendant. And I can disclose this now because, you know, Crown Counsel knows this. But there are two reasons why we did that. The one reason is because we believe that we have a claim against her otherwise, we would not have named her as a defendant. But under the rules, let me back up a bit here. So there’s that our legal system is based off of the British system, our civil justice system, and we inherited this from Europe. And the rules have changed somewhat, but the general process hasn’t really changed that much over the centuries, you file what’s called pleadings, which outlines who you are, who you’re suing, how you’ve been harmed, what you want a judge to do, and why they have a basis for doing it. Right. And that’s what’s called your pleadings. And then after that, the other side files their reply as well. And then you go into what’s called discovery. And that’s where the parties to the litigation discover what it is that’s in the possession of the other side. So documents; they get to ask people questions under oath, and so forth. And then after that both sides have collected the information that they think that they’re after they should have. If they still want some more things, they can they can ask for them. Or they can go to court and get the judge to order somebody to produce some documents that maybe they didn’t want to. And that’s pretty normal. And then the parties they sit down, they look at all the materials they have. And they think the last thing, what is the body prevailing at trial, right. And then most of the time, cases settle, it’s actually very rare that a civil suit goes to trial too, it’s very rare, and that but the problem here is that with a class action, you don’t have discovery early on, you don’t have discovery until after you’ve been certified. And so that happens this fall, and we’ve been waiting a long time for it, we’ve been gearing up for it, we’ve been doing everything we can to mitigate any risks that might undermine the possibility of being certified. And what we want to do is we want to summon Dr. Bonnie Henry, for her discovery, what’s called an examination for discovery. And maybe you’ve seen American films, they have what they call a deposition down south, it’s the same thing. It’s the British system, we call it an examination for discovery. And what happens is the witness gets called in at to the lawyer’s office, there’s a court reporter there that creates transcript reports all of it. You ask that person questions under oath, you can ask them anything that’s related to the suit and show the documents and so on. And that’s actually sort of you’re not trial by ambush is isn’t permitted in the British system. However, under discovery, you don’t have to give the other side notice at all about what you’re going to ask them is sometimes as a courtesy, you might do that. But whoever is named as the defendant, under the rules is required to provide evidence they have to show up for their examination for discovery. So if I sue, let’s say McDonald’s, that’s a corporate defendant. And so they can normally send whoever they want as a representative, whoever they send out, has to have all the information that they need in order to answer the questions. And there’s a time limit. You have seven hours to ask them anything related to the suit. There’s some other technical details but that’s the gist of it. And so a body corporate, like McDonald’s can send whoever they want, as long as they can answer the questions dependent on what the suit is. I can’t say I want specifically Ronald McDonald to show up unless he was named as the defendant. Now, if I want an order that Ronald McDonald specifically has to show up, I have to go to court and seek a judicial direction before a judge and ask them, can you force this guy to show up? And our reasons are, we think they have material information, these documents in the possession of the only person who can answer the questions that we have related to our suit. And the judge goes back to what you pled your original suit and says, Can you show me where you’ve specifically said something that relates to what that person might have information on? Right? And so that’s the case with a body corporate, but if you want to, if you sue someone individually, they’re not allowed to send a representative on their behalf? Yes, that makes sense. They can send a lawyer, everyone can go with a lawyer, but they still have to personally answer the questions, right. That’s why we named her personally as a defendant is so that she can’t send a subordinate because you’ve noticed this over the last two years now, when provincial health officers are almost dragged into court, they send some miscellaneous civil servant, a bureaucrat, an underling, executive assistant, the deputy, whatever, and that’s not going to fly with us. We want to speak to her directly. Yeah, so that’s why we named her directly as a defendant. And one of the things that people in her circle have tried to claim in the past like Dr. Hinshaw is what’s called cabinet confidence, so cabinet confidence. It’s an old common law concept that basically says whatever goes on cabinet, whatever they talk about there, it stays there. It’s like whatever goes on in Vegas stays in Vegas. You don’t talk about it.
Will Dove 11:59
Right. And it’s you’re probably aware of what’s happened here in Alberta because I know you’re in touch with Layton Gray. Layton and his associate Jeffrey Rath, working with the Justice Center for Constitutional Freedoms, worked for well over a year to get Alberta’s public health officer Deena Hinshaw into court finally succeeded a few months ago, hit her with three very cleverly worded questions, which basically gave her the option of accepting responsibility for her decisions, or throwing Jason Kenney and his cabinet under the bus. Surprisingly, she accepted responsibility. And as a direct result of that, our organization’s lawyer, Marilyn Burns is now representing 12 plaintiffs who’ve lost their businesses or their educations, and are suing Deena Hinshaw personally, because she accepted responsibility in court. So hopefully, that’s what you’re gonna get, when you get Bonnie Henry on the stand, that she’s going to have to take responsibility for these mandates.
Kip Warner 12:52
Yeah, and she had a difficult job. And I’m not, I’m not going to make excuses for her. And I understand there’s a lot of visceral hatred in the community towards her, but I don’t really think that she was in charge, she was getting her direction from somewhere, because we can see that all across the province or the different jurisdictions and territories. And you’ve got NDP governments are sort of center left party, you’ve got the Conservative Parties in Maritimes, in Alberta, and so on. And it didn’t really make any difference, right, depending on what the prevailing political ideologies might have happened to be. All the public health officers were doing the same thing. Now it’s either it’s because the science is all the same, but they didn’t seem to be following that anyways. or somebody’s telling them the same thing. And I’m the fan of Occam’s Razor, I think that’s probably the case, the directions were coming from the top down, and we want to talk to her about that.
Will Dove 13:53
So what is the current date now that you’ve started this class action way back in January of 2021, that’s been going on for over a year and a half. Now, what is the current status of the class action?
Kip Warner 14:03
So right now, we are locked and loaded, ready for certification. I believe our written submissions are going to be due before the end of this month. We’ve had to do normally with class actions, where would any normal suit when you go into court, you’ve got so you file your pleadings. And then at some point of time, down the road, you’ve got a trial if it doesn’t settle before that. But along the way, the parties can bring applications for different things like maybe, maybe say there was a you’re suing somebody as they hit your car or something like that. And you ask them to produce some documents that might relate to whether or not they were drinking and driving that night. And they don’t want to do that. So you might have to bring an application partway saying I want you to produce these documents, because these are material, we want to rely on them at trial, right? So that’s one example. Or maybe you want to bring an application that you want to adjourn a particular hearing or something like that. And so each time you go into court for these different hearings, you usually have a different judge. It’s just kind of a lottery. It’s randomly assigned whoever’s available. But with the class proceeding, the way it works is they’re what are called judicially case manage. So you have a judge that’s assigned. At some point in time early on, you have to request a file was the requisition. That judge is assigned as the same as you have for all the application hearings, case planning, conferences, all of that all the way through to trial.
Will Dove 15:29
Now, if you have one last question about the class action, before we move on to the other legal actions your organization is pursuing, assuming that you get past the certification and the discovery stages, what damages will you be pursuing?
Kip Warner 15:42
So we’re seeking actually, there’s a couple of heads of relief in our pleadings, but that we are seeking damages for anybody who was affected by these measures, and that that’s to be quantified by the judge at trial. The damages are tricky, because where does that money come from? Right, it means let’s say we prevail at trial, and we’re awarded billions of dollars that comes out of the public treasury. And I’m cognizant of that, and I can’t discuss how we’re going to deal with that. But I have a working plan on the drawing board to solve that problem. And when the time is right, I’ll disclose that to the world. And I think people will be generally amenable to it.
Will Dove 16:26
Let’s move on to the other legal actions. What else is your organization pursuing?
Kip Warner 16:31
Yep. So we have two other proceedings, well actually no, these ones are definitely actions you know, a technical thing. But basically, a petition is it’s a type of suit. So you’ve got a couple of different types of suits in a ways of starting a suit in BC. The main one is the notice of civil claim, which is just a normal suit and that has a trial, and there’s witnesses and there’s evidence, and it’s you have people on the stand, you ask them questions, you show documents, there’s the judges, they are watching the whole thing. A petition is basically a suit, that’s one application. So from start to finish. So it’s all basically on paper, you have hearings, but you don’t normally have any one on the stand. That would be very rare and unusual. And petitions have been around since 13th or 12th century and Edward The First Days. And basically what it was is if you wanted, you weren’t necessarily suing somebody, but you wanted to ask the sovereign for some relief of some kind, like maybe you thought you were entitled to a knighthood, or rather stole your wife’s dowry or something like that, you could ask the sovereign, you know, like in the old movies with King Arthur and so on, someone will go in and in front of the king, and they kneel, they say, My Lord, may I have this or that and the King would say, granted the Sphinx in those days, the king was also the judiciary, if you could make orders like Julius Caesar, he was also a judge. And that’s part of how they actually obtained their power to rule, was the ability to resolve civil disputes. And so with a petition, you’re not necessarily suing somebody, the closest thing is rather than the plaintiff and the defendant, you’ve got a petitioner and respondent, someone who responds to that petition and usually tries to defend against it. Besides our class proceeding, that’s moving into certification this fall, we also brought two petitions. And like I said, these petitions is the name for type of suit. It’s not a list of signatures, like how people are normally accustomed to that. it’s a different meaning. And so those two petitions, one of them seeks redress for the health care workers who are confronted with injection mandates, and as a result, lost their job because they refuse to submit to these mandates. And then the second petition is for all the people who were affected by the injection passports. So if you needed these, you know, the app on your phone, whatever to access very social venues, a movie theater, cafes, nightclubs, whatever the case may be. That petition challenge is that and the reason why we didn’t, remember I was telling you, you can bring applications along the way and in a suit, but in a class action, the type of relief that we would need in order to address those what those two petitions were targeting. We couldn’t do until after certification. And since we were being lobbied by 1,000s of people. I mean, we had around I think 5,000 health care workers here in BC, lobbying us to do something because they were losing their jobs left, right and center. And so I had to, you know, we had to figure out how do we balance the books because when we expand the scope of the work that we’ve taken on it incurs additional expense, incurs more resources, time lawyers and so on. And we have finite amount of resources, because we’re honest and we tell the truth about what we do. We don’t raise millions of dollars. We told stories and as a result, we had to be careful with our resources. And we have to be strategic with them. But there was no way to help the health care workers without starting a separate action, which is what we did. And also remember that the health care workers confronted with these injection mandates and the injection passport that didn’t exist when we started the class proceeding back in January 2021 were discussions of that. But you can’t see a civil remedy, like a judicial declaration that a law was unconstitutional or something unless that there is a law, right? Even if they’re just talking about a press conference, something, that’s not enough, you have to have it in the Gazette, you gotta be able to look at it, point to it: this public health order on this date of these civil servants; show, the judge, and all of that. And so we took on additional expenses, and, but we also helped a lot of people. And I’m really happy with that. I think that if we could go back, and if we had sided with it, do it again, I would definitely do it.
Will Dove 21:09
And what is the current status of those petitions?
Kip Warner 21:11
So the injection passport is actually over. We — that was heard, maybe two months ago, I think, in front of the Chief Justice of British Columbia. So he’s basically the highest ranking, is the most senior judge in the province. We didn’t ask for him specifically, it just was assigned to him. And that petition went very well, I think we don’t know how it went, like I said, you have to be careful about reading the tea leaves. But I’ve seen, you know, probably 100 hearings, and I think we did well, but ultimately, we’ll find out so that judgment is under reserve. And the chief justice heard everything. The courtroom was absolutely packed. It was sad that so many people weren’t able to get in there but we did leave various copious status updates on our website, anyone can read in detail what happened. So if you’d go to our website, suebonnie.ca, and you click status updates, it’s all in front a logical order and just links and explanations about what the terminology and so on means. But that hearing was, I saw probably one of the most interesting exchanges I’ve ever seen between a judge and counsel in that, specifically defense counsel. So Dr. Henry’s lawyers, what we were seeking was specifically what’s called a judicial review. Under the Judicial Review Procedures Act or something, I forgot the statute but basically what it is, is if you don’t like a decision, that supplement some government entity, public official name, it could be to take away your driver’s license, or to not provide certain zoning for an area that you want to develop, or in this case, the public health order, you can ask a judge to reconsider whether the or not or consider whether or not a law was actually lawful. But there’s a process for it. And so if you say — ICBC is our auto insurer here, our provincial insurance, let’s say they take away your driver’s license for some reason. You can’t go to court and ask a judge to overturn that decision until you exhausted whatever avenues for recourse you have through the government body. So you have to go to the ombudsman or whatever the special offices for ICBC. And then you go to the judge, and you say, look, we exhausted the proper channels. We’re asking you to overturn a decision that some portion of the executive had made. And the rules are, though that you can only show the judge what it was that was before the decision maker at the time that they made that decision, let’s say to take away your driver’s license, or in this case with Dr. Henry, at the time, that she said No, I’m not granting you a reconsideration or an exemption from the injection passport, not granting you the you know, recognizing natural immunity or whatever it is the case that you may be asking for. So you have to show the judge only what you put before Dr. Henry at the time that you asked her to reconsider the order.
Will Dove 24:19
Kip, I want to go back to the petition for the health care workers. Where is that at right now.
Kip Warner 24:27
So the health care workers petition is moving forward, the I forgot which judge it is before. But there were a number of similar petitions that had brought them, brought around the same time and some after. And what ended up happening was all of those petitions are going to be jointly heard together. And ours is a bit different than the others and that we’re not just seeking relief for just the petitioners but we’re bringing in on behalf of a class of people kind of like a class action, but it’s in the form of a petition, where we’re seeking redress for all of the health care workers who are affected by her public health orders. And there were a number of them that required immunization requirements as she refers to it.
Will Dove 25:21
So, once again, I guess what I’m trying to do is to tie all this together into a timeline, because you said the class action is set now, I think for December, December.
Kip Warner 25:29
Yes, yes. So this one it has not been heard yet. Sorry, I should have clarified that it’s going to get heard in the coming weeks. I don’t have the date in front of me.
Will Dove 25:40
And you’re hoping for a judgement on the injections petition very shortly?
Kip Warner 25:45
Yes, that that one had been it had been suspended, but they were hoping for an eject a judgment soon.
Will Dove 25:51
So that just leaves the other petition for the health care workers.
Kip Warner 25:55
Yes. And something I forgot to mention, and which is pretty important is we already had it set down and brought for I believe, is a three day hearing — two or three day hearing. And the entire time was wasted by Crown Counsel, arguing that we didn’t have standing and what standing means is the right to be in court. If you’re a party to a claim that you don’t, you don’t have any interest at all in it, like say you’re suing somebody for hitting somebody else’s car, and you don’t own that car, you weren’t in it, you had nothing, you weren’t even there, you probably won’t have standing on a plane. And it’s the same thing here where Crown Counsel was trying to argue that our society or nonprofit, should not have public interest standing. We saw that coming. And we’ll do the same thing to class action. And they tried as well on the injection passport. And the judge didn’t agree with them. The entire time was wasted arguing on that. And the judge, before things could move forward had to make a decision do they have standing or not, because if they don’t have standing, that doesn’t matter, the rest of the petition what they’re seeking doesn’t matter. And so Justice Colwall released his ruling, since maybe two months ago or something like that, and granted us public interest standing. So we were seeking public interest standing for our nonprofit private interest standing for myself, because I was a petitioner as well. And we only needed one of them in order to be granted standing, which we got. And that allows the petition to move forward. And that made, you know, a lot of headlines, including internationally because that was a big deal. And our Dr. Henry was not happy about that. And, in fact, she went to appeal it at that decision. And she subsequently abandoned that appeal because there have been some recent developments in Ottawa in the Supreme Court of Canada that would have made that a fruitless endeavor.
Will Dove 28:00
Okay. So to sum up, we’re hoping that we’re gonna see a resolution in this class action by the end of the year, there’s hopefully going to be a resolution for the petition for the injections very shortly.
Kip Warner 28:13
Yeah. And the other one is still undetermined.
Will Dove 28:16
We’re not really sure what’s going to be on that one.
Kip Warner 28:18
Correct. We’ve been awarded public interest standing. And now we have to go and have the actual petition heard, which, like I said, that whole time was wasted, because we already knew we had public interest standing. But it was an issue that judge had to determine. Because all the evidence and everything doesn’t matter if you don’t have standing. So that’s out of the way. And, you know, they their argument was basically that the two Charter Rights apply too we were bringing up, I believe there’s a section seven that challenged in charter, right to life, liberty, and so on. And, and those Charter Rights apply to individual persons, natural persons, not body corporates, and because of that, the petitioner is our society and myself, and they were saying that, well, you know, your society can have Charter Rights. So you don’t you therefore don’t have public interest standing. That was the gist of their argument. But there is case law already of nonprofits. The Downtown Eastside case is a classic example, which showed that nonprofits can have a public interest standing, provided that they’re acting in the best interest of the people that they’re going to be representing. And Crown Counsel read they said yes, but your entity is different from that in that your entity is just it’s an ephemeral, legal fiction that you just created solely for the sake of suing the government. And we said, well, maybe but we’re still allowed to do that and the judge agreed.
Will Dove 29:58
Just because the order realization was created for the purpose of suing the government for wrongful actions doesn’t invalidate exactly the purpose. It’s that’s what it’s there for.
Kip Warner 30:07
And so we show the judge that, you know, we’re not — this organization isn’t just me, there’s a lot of us and we were backed by, you know, 1,000s of public health workers, that many of whom had donated to our campaign are members of our organization. We convince the judge that it’s clearly not frivolous and the judge agreed, you know, you’re doing things properly, that your petition record appears to be well put together. And, you know, you do seem to be advocating in the best interest of the people you claim to be advocating for. That what you’re seeking is justiciable issue. It’s something that the court can think about, can make a decision on it. It’s a serious issue to be tried or whether constitutional rights had been undermined. And so you’ve granted us public interest standing. And Dr. Henry was not happy about that at all.
Will Dove 31:00
I imagine not. Thank you very much for what you’re doing. It’s, this whole situation has led to a number of unlikely warriors stepping forward, people such as yourself, who have no background in law, you’re a software developer, I myself was a web developer before I launched Strong and Free Canada. And yet many of us now stepping up and have stepped up in the last two years in defense of our rights and freedoms. So thank you very much for what you’ve taken on. Folks, for those of you who are watching, if you can please donate to their efforts, you will find links, as always, below this interview, to the website, to places where you can donate. And even if you’re not in BC, I would urge you to remember that this can set precedents that would be applied across the country. So these cases are extremely important. Kip, once again, thank you for your time.
Kip Warner 31:02
Yep. Thank you, sir.
Will Dove 31:49
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