Section 22 Order to remain in effect despite J.A.K.K. Tuesdays owner’s day in court

J.A.K.K. Tuesdays Sports Pub owner, Kelly Thompson Hale, made his second appearance in court Friday, Nov. 19, 2021. This time, Hale argued that a Section 22 Order for violation of the Reopening Ontario Act (ROA) made under the Health Protection and Promotion Act should be overturned. Justice Graeme Mew, of the Ontario Superior Court of Justice, did not set the order aside.

The courtroom was filled to capacity, with 15 members of the public in the gallery and members of the press seated in the Jury Box.

Before the proceedings got underway, several unmasked members of the public were told that the Judge could ask them to leave unless they could prove medical dispensation from masking. They were offered masks by an officer of the court, but none elected to take advantage of the offer. As a result, Justice Mew did ask for medical dispensations from those unmasked individuals, and all but two were asked to leave the court.

Hale elected to act in his own defence and was seated at the defence table with a friend, both of whom wore no masks. Justice Mew explained they could be allowed to continue unmasked because they were walled in with plexiglass on three sides, as was he, as was every other court employee.

Once the proceedings began, Mr. Hale made a motion to have the hearing remanded and conducted on ZOOM, “due to the fact that people are wearing masks, I will not be able to get a transcript of this hearing. This is imperative to get good transcripts as my business and livelihood are on the line here.”

He then added a second motion, that the court allow a jury to hear his case, “because my rights under the Canadian Bill of Rights are being violated.” He then quoted Sections 1a) of the Bill: the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; as well as 1b): the right of the individual to equality before the law and the protection of the law.  

He explained his reasoning that, “it would not be fair or just for this court to hear this matter because judges are appointed and paid for by the government and therefore they are not independent in partialism [sic] as is a jury.”

The lawyers appearing on behalf of Dr. Piotr Oglaza, Kingston Frontenac Lennox & Addington (KFL&A) Public Health, as well as Limestone Property Management, the manager of the building that is home to J.A.K.K. Tuesdays were David Adams and Matthew Taft. Taft explained that, “This is the first I’ve heard of these motions, but my opinion would be that neither idea has merit.”

First, Taft stated that it was too late in the day to change the method of hearing, and that, earlier in the week, he had offered Hale an adjournment for the purpose of taking legal advice, and that Hale had indicated no concern whatsoever about the method of hearing. Secondly, Taft notes that he was unaware of any precedent for a return of application of this nature to be heard by a jury and for the judge to be excluded, calling the idea “unreasonable” and “offensive.”

Taft also pointed out that Hale had, on Wednesday, Nov. 17, 2021, “served Dr. Oglaza with a summons to appear today. The summons was defective, it didn’t state the right time,” along with other errors, “but nevertheless, Dr. Oglaza was here today [in attendance at the court]” and would be prepared to take questions at the Judge’s discretion.

The Judge ruled against changing the hearing to Zoom, pointing out to Mr. Hale that there is a transcript of every hearing made by the court reporter and that he has a right to a copy of that report. On the request for a jury, the judge explained that this was an application, not a civil action, and that jurors don’t hear applications. Finally, he explained to Mr. Hale that the judge is appointed by the Crown, not the government, and that “we are required to be independent regardless of who appoints us… So you are not entitled to a jury, and even if you were, I would not recuse myself, as indeed you can’t have a jury trial without a judge.”

Justice Mew then reiterated that Mr. Hale must be prepared to proceed, and gave him the opportunity to adjourn, saying, “If you need more time, I will give it to you.” Hale elected to proceed.

Hale requested and was granted the opportunity to cross-examine Dr. Piotr Oglaza, Medical Officer of Health (MOH) for Kingston, Frontenac, Lennox and Addington (KFL&A) Public Health. Most of the questions Hale asked Oglaza, he said, were an attempt “to see what is in my Public Health File.”  

Mr. Taft pointed out that, due to the nature of Oglaza’s position as Medical Officer of Health, he might not be the best person to question on clerical matters. This did not phase the pub owner.

Hale began by asking Oglaza, “Is there a report that I have a known case of COVID-19?”

“I do not have a report that would state that,” Oglaza responded before Hale further asked similar questions about his staff, his customers, and received the same answer.

Hale then asked if there was anything in his file stating that he had been “convicted of violations under the Health Protection and Promotion Act.”

“I’m aware of other regulatory proceedings that were happening with the liquor license,” Oglaza responded.

Hale reiterated the question, “Is there anything in your file that I have been convicted of anything?”

The judge interrupted here to clarify, “So you’re saying that payment of fines, you don’t consider being a conviction?” and “What you are really asking is, does Dr. Oglaza have any record of any regulatory violations against you.”

Oglaza replied, “I don’t have any recollection of the details of those documents.”

Hale asked Dr. Oglaza what the general protocol was, “if there is a risk of COVID-19 at any establishment in this Health Unit?”

Oglaza slowly explained, “The risk of COVID-19 is present throughout this region. It is present throughout the province of Ontario and throughout the world. If there’s a risk of COVID-19 in a particular location, there are measures in place that are intended to attenuate that risk.”

He continued, “Depending on the type of establishment, these measures may include requirements that only vaccinated individuals enter premises, it might be to limit the number of persons in attendance, but it is also a requirement that individuals in enclosed indoor locations are wearing masks. And anyone, prior to entry depending on the type of establishment, might be required to pass a screening, which is basically asking individuals for symptoms that are compatible with COVID 19.”

“So, vaccinated people can’t spread COVID-19?” Hale countered.

Oglaza stated, “Vaccinated people can spread COVID-19, but to a far lesser degree than unvaccinated people.”

Hale asked what evidence the doctor was relying on to come to that conclusion.  

Oglaza explained, “Well, we’re looking at a number of vaccine effectiveness studies that were conducted throughout the world. These studies have been put together in a COVID evidence brief by our expert colleagues from Public Health Ontario. We also see local evidence based on the local case counts on [the] vaccinated and unvaccinated [populations]. And it is from that local evidence that we see that the risk of someone unvaccinated contracting COVID is 5.9 times higher than someone vaccinated. So, it starts with the very notion of getting infected in the first place. Those who are vaccinated are far less likely to get infected in the first place. And even if they are infected, their period of infectivity might be shorter, and it might be less likely to infect others. And that protection all starts with the very basic initial protection of the vaccine, and that protection is from getting sick in the first place.”

Hale asked if Oglaza could give him the name of a study or a place he could look one up and the doctor pointed him to the ‘What we know so far’ section about COVID on the Ontario Public Health Website, saying, “There are numerous studies that are summarized within these areas that are available publicly on the Public Health Ontario website.”

At the end of Oglaza’s time on the stand, Justice Mew said, “So, I’m assuming, Mr. Hale, you want to persuade me that the order that was made last week should not stand? Either that it should never have been made, or that the conditions which required ot to be made at that time no longer exist. Is that it, essentially?”

“Of course, your honour,” replied Hale. 

“Okay, well, this is your chance,” the judge replied.

Hale’s arguments ranged from him not wanting to violate the privacy of his patrons by asking them to divulge their personal medical information (vaccination status), to the fact that, “The Health Unit didn’t come and see me [to censure me] for a year and a half. If this was such a risk and they knew my stance, if I wasn’t doing things properly, why weren’t they there? Why did the AGCO [Alcohol and Gaming Commission of Ontario] come? Why the bylaw? Why did the police come? Where was Public Health?”

Hale’s argument seemed to be that there was no significant risk of COVID being spread at J.A.K.K. Tuesdays because these other organizations attended his establishment before Public Health inspected. Taft responded, “You heard the doctor give evidence today that there was a very significant risk in this setting… we have COVID in this health unit, and this is an invisible disease, we can’t point to it. I can’t tell you if it’s over there,” he pointed, “Or over there or over there. By its nature, it’s an invisible disease.”

Hale persisted, “Obviously, if it’s everywhere, I guess it knows the height and everything, does it not? I mean you walk into a restaurant with a mask on, but as soon as you sit down at a table and take your mask off you won’t get COVID. Twenty-thousand people are in an arena, people sitting shoulder to shoulder, drinking beer and [eating] pizza with no mask on, but that doesn’t pose any risk. Yet my restaurant presents a risk? It’s very illogical.”  He did not take into his account that those hypothetical 20,000 people had been screened and presented proof of vaccination before they could attend, which is what Hale is accused of refusing to do.

Hale also tried to rely heavily on laws that he said he thought would supersede the Reopening Ontario Act. The judge grew tired of these attachments and pointed out to Hale that laws from other countries and provinces do not apply to Ontario, saying, “You can’t pick and choose which laws apply to you. I come from a country where they drive on the left-hand side of the road, I can’t suddenly decide that I prefer to do that.”

After more than an hour of debate and a fifteen-minute recess to deliberate, the judge made his decision.

“Firstly,” said the Judge, “I’d like to thank you for coming today and showing the court a great deal of respect and presenting your case in a reasonable way… I’m not living under a rock, Mr. Hale, and I know that you and your feelings about these issues are genuine, whether I agree with them or not. I have not been elected to make these decisions: I simply have to apply the law and do my best to do so.”

Hale was respectful of the court, listening to explanations of the proceedings with only a few interruptions, and sat quietly as Justice Mew announced his decision. 

“I’m going to give some written reasons to explain my decision,” he continued, “but based on what I’ve heard today and what I’ve read, I haven’t been swayed that the orders that have been made should be set aside.”

J.A.K.K. Tuesdays, located in Kingston’s west end, has remained defiant of provincial and municipal legislation regarding COVID-19 protocols and mandates since September 2021, when Hale first announced his intentions to disregard the mandatory enforcement of proof of vaccination. Since then, the establishment has been served with the aforementioned Section 22 Order, as well as a Superior Court Order, and visited regularly by KFL&A Public Health representatives and Kingston Police. This all culminated in the eventual eviction of Hale and his supporters, who attempted to camp in at J.A.K.K. Tuesdays in protest of the enforcement last weekend.