2024-12-14 Saturday Peaceful Freedom Rally
11:00am - 12 noon Markham and Lawrence
Trozzi bites, Nurse Sarah Choujounian’s 2024-12-12 Disciplinary Hearing
This was the final hearing in the liability phase of the College of Nurses of Ontario proceedings against nurse Sarah Choujounian. I’ve lost track of the exact count but it’s approaching 30 hearing days. Both sides made their closing arguments. Trozzi has
not appealed and his case is now the most current precedent in Ontario. Trozzi cast a long shadow over the proceedings.
There are a lot of important legal issues at stake in these proceedings. This article focuses on the Charter 2b Freedom of Expression issues. All the parties, including the Independent Legal Counsel for the discipline panel, Mr. Wirth, gave submissions on just exactly how the panel should “balance” Ms. Choujounian’s right to freedom of expression vs the College of Nurse’s duty to “protect” the public. I tried to listen carefully for a description of exactly how the panel is supposed to assign weights to these two very different interests, but I didn’t hear anything beyond the word balancing which seemed to me to boil down to pick a side. Meanwhile the Supreme Court of Canada (SCC), Trozzi and other Ontario court decisions and have all greased the skids to make overriding Ms. Choujounian’s Charter 2b Freedom of Expression Rights almost a formality.
Doré and Loyola are the SCC cases that apply to Charter 2b rights under administrative law. For Choujounian that means balancing the College’s statutory objectives while protecting the member’s freedom of expression. In other areas of Charter law such as the Oakes test, the government has to prove something more than balance of probabilities to override Charter rights, but my understanding is that Doré is just balance of probabilities.
The Ontario courts, most recently in Trozzi, have made this worse by emphasizing the importance of the Health Colleges “protecting” the public during the pandemic. This includes siding with the Health Colleges on the importance of suppressing “misinformation”. They have also looked at Freedom of Expression as a strictly individual right, not as a collective right. They haven’t considered the chilling effect on doctors, nurses etc. in general. They have said that lifting licences for speaking out has limited or little impact on the professionals freedom of expression because they are still free to express themselves as individuals.
The defense didn’t suggest any more graduated responses to lifting Ms Choujounian’s licence. They did try to highlight the importance and value of dissent in a democracy but it lacked passion. Ms Choujounian has herself raised the Nuremberg Code. As I recall Ms Choujounian’s lawyer Alexander Boissonneau-Lehner tried to downplay the fact that code came out of Nazi doctor atrocities. Nazi Germany continued with the trappings of a legal system including laws and courts. In many cases they did heinous things “legally”. Almost unbelievably, apparently some of the judgements against doctors in Germany for writing mask exemptions cited Nazi case law from 1940. https://report24.news/urteile-gegen-kritische-mediziner-unterstuetzung-von-nazi-rechtsprechung-in-deutschland/ I have the feeling civil liberties are eroding in Canada. We are not equivalent to Nazi Germany quite yet but we should be studying that awful history to avoid repeating it.
I understand where Boissonneau-Lehner is coming from when our own SCC is so tepid when it comes to Charter Rights. The panel consists of 3 nurses and a member of the public. I wouldn’t count on them having any sense of history and any sense of just how bad things can get when individual rights are trampled on.
The panel adjourned to deliberate without giving a date for their decision. I wish Ms. Choujounian a good outcome but the Charter playing field is tilted against her and I fear the worst.
Legal Disclaimers: I am not a lawyer and you should not rely on this as legal advice. Nor am I a court reporter and you should not rely on this or the notes below as an authoritative record of the hearing.
Rally at Markham and Lawrence this Saturday from 11:00am - 12 noon
Please bring a freedom related sign, flag, flyers etc. if you have them.
I will be at or near Markham and Lawrence, ending up directly outside Healthy Planet.
Raw Notes
2024-12-12 Day ?
0940 approx start
Member Closing Submission - Written yesterday
College Closing Submission (Written Aug 26th)
College oral submission Megan Shortreed
1/ Overview
2/ Context of Pandemic emergency
3/ False, Inaccurate or Misleading or encouraged defiance of Public Health
4/ Standard of Practice
5/ Charter of Rights - Professional Misconduct is a proportionate infringement
Allegations
1/ Standards
2/ Disgraceful
Used nursing title to spread misinformation and defiance of Public Health
1/ panel to decide on false/inaccurate OR noncompliant with Public Health Orders
2/ if yes to 1/ then did the member engage in professional misconduct
3/ if yes, consider Charter right to free expression vs College's statutory mandate
Courts have repeatedly ruled Professional Colleges may limit speech
recent CPSO cases Trozzi Ontario Divisional Court
extensive quotes from Trozzi
Trozzi has not appealed so the decision stands as law
0958
2/ Context
Early Pandemic - unprecedented public health emergency
2020-03-11 WHO Global Pandemic
2020-03-17 Ontario Emergency
2020 Oct 17 3000+ deaths
2021 Jan 17 5000
COVID 19 has killed 60K Canadians over 4 years
Health Care system overtaxed
2020 Science was "evolving"
Chief Public Health Officer, Ministry of Health "reliable" sources of information
vaccines worked, saved lives and turned the tide of the pandemic
Choujounian undermined the Public Health Care System and ought to have known that
1007
standard of proof is balance of probabilities
Burstein standard is not in effect since Supreme Court Canada FH McDougal
expect reasons for admissibility, still need to weigh members experts,
should not weigh members experts very heavily because they did not speak directly to the members statements
statements agreed, that she used her title as a nurse and to get as much publicity as possible
not about hardships of longterm care residents and shutdown of economy - not at issue
not about members general right to protest
about what she posted and reposted - about what she said at the time, not in hindsight
1/ evidence of College's experts was largely uncontested, were highly credentials
2/ members experts gave their personal reasons not Choujounian, or were outside the consensus
3/ member did not acknowledge the limits of her expertise, expertise of others
4/ member sometime fantastical, conspiracy theories
1017 categories
1/ Hoax
Panel entitled to take judicial notice of pandemic - Ontario Court of Appeal JN vs CG, [89] Trozzi
Also no dispute that COVID-19 was a hoax, Choujounian admitted her language was a bit misleading - admission
2/ COVID-19 not a threat
evidence from Dr McKewan .sp?
Choujounian disputed death count reporting, without evidence
COVID-19 comparable to seasonal flue McKewan contradicts
3/ COVID-19 harmless compared to cardiovascular disease
McKewan - different diseases, the more spread, the more deaths
Choujounian admitted 15890 deaths in 2020 were significant
4/ Court in JN decided children DO suffer from COVID-19, can take judicial notice
Court also stated children could cause transmission
5/ COVID-19 became less deadly over time,
McKewan: statement partly false, viruses can evolve to become more or less transmissible
1029 categories Vaccines
1/ Not safe or effective
Agreed Statement of Fact that Public Health Canada approved the vaccines
Court in JN took judicial notice that Public Health approval is a strong indicator of safety and effectiveness
[34] Trozzi also follows this decision
Juerling also testified to the safety and efficacy of the vaccines
Jeurling significant benefits outweighed the harm, "world-wide" consensus
Bridle only qualified for AstraZeneca vaccine, matters talking about issues irrelevant to the members statements
Bridle said vaccines did not stop transmission, could increase severity of disease
Bridle not consistent with "consensus" not a "serious" scientist, should be given little to no weight
Member admitted clinical trials were done, that side effects were published by Health Canada
Dec 8th Cancer Laced Vaccines Rachel Seller .sp not directly COVID-19, but was in context of COVID-19, Dec 6th post on AstraZeneca
was at least general vaccine "misinformation"
2/ Experimental
McKewan - Health Canada approval makes it non-experimental
Bridle - approved under interim order, Court of Appeals says interim order is sufficient
Choujounian stood by her Nuremberg statements
3/ Dangerous for children, contain aborted fetal tissues
uncontested, Choujounian admitted to some mistakes, didn't take posts down that she knew to be incorrect
4/ Masks
Jurelinks uncontradicted evidence that masks not detrimental, even for growing children, most masks not made of PTFE, invalid evidence to cancer.org
blue masks contains carcinogens - no reference.
Panel should not allow Choujounian to reframe
5/ Alternative treatments
vitamins, Ivermectin, Hydroxychloquine
Juerlink - statements are false, confirmed by multiple RCTs, evidence uncontradicted
Choujounian could only point to anecdotes, did not trust the RCTs, problem with Choujounian ignoring evidence
6/ PCR Testing
cycle count used to upgrade/downgrade pandemic at will
Mazzouli s.p testified Choujounian is false,
Mazzouli cycle count cannot generate a false positive
Bridle 90% in agreement, 10% dispute not related to Choujounian's statement, agreed that Choujounian was incorrect
1101 Defy Public Health Orders
McKewan - only public health expert said measures were effective, attending large gatherings would encourage transmission and result in death
Choujounian admitted that following Peal Region would help reduce transmission, but encouraged followers to disobey, resulting in deaths
disrespect for Public Health and her colleagues, let's get together and bring these psychopaths to justice. Nurses who advertise vaccine are not
committing crimes against humanity - Choujounian could not identify who the psychopaths are. Invisible hand is an anti-semitic trope conspiracy theory
Professional Misconduct
- standards of practice of the profession apply during social media posts, Choujounian admitted this
- panel has to decide what the practices required, can rely on core values, caring, science, evidence, honesty, respect expertise of others, again cites Trozzi, can look at guidelines
- Choujounion acknowledge she had to be accurate, cites Trozzi - competent doctors have to refrain from spreading misinformation and conspiracy theories, Cava expert witness for College,
failed to recognize limits of her expertise. goes beyond limits of debate, blanket statement, conspiratorial language, disrespect for colleagues cites Trozzi
- Serious and persistent, member knew or ought to have known, conduct casts serious doubt and members morality: disgraceful, dishonourable, unprofessional
- was not a frontline nurse, had been fired from both her jobs
- knowing and intentional, she new where the standards required here to look but chose to disregard them
- Fault Lines reports admitted into evidence and not contradicted, statistical model - upheld in Trozzi
March - Nov 2021 2.3 million less vaccines, 13K more hospitalization, 2.8K more deaths
- brings shame on the Nursing Professional.
1126 break
1141 Ms Denise Cooney Charter Argument
Freedom of Expression 2b vs Professional Misconduct
1/ the law itself is unconstitutional - does not apply
2/ valid law that may infringe - Doré/Loyola framework applies
a/ consider Colleges statutory objectives
b/ how to protect the members freedom of expression
Doré lawyer arose from a letter he wrote to judge, cites Trozzi
Doré
College statutory objectives
- regulation to serve and protect the public interest
- competence and honesty of members of Health Professions Pharma Science and Binet, Trozzi
- [78] Trozzi context of Public Health emergency
- [79] Trozzi importance of protection of public
- Trozzi applies
- Professional Misconduct would protect the public interest, would recognize misinformation, would recognize serious legal consequences for the conduct
- Professional Misconduct would protect the public from actual harms such as vaccine hesitancy (Faultlines)
- Professional Misconduct would maintain trust in nursing, integrity of Nursing, distance the College and Profession from Ms Choujoun.
- Trozzi robust and legitimate debate vs conspiracy theories, conspiracy theories and misinformation are not debate, Choujounian outside the realm of legitimate debate
- Impact on the Member
- minimal impact given the quality of members expression. low expressive value - search for truth and common good, misinformation less protected [127] Trozzi
contribute to harm to public, increases vaccine hesitancy
low value because of disrespect to nursing colleagues
- Trozzi - not contributing to public debate because because the realm of scientific debate
- professional misconduct would only have a limited impact on Choujounian
- public good in context of the pandemic far outweights any impact to Choujounion
1206
Shortreed
- keep in mind the message to the public, context of pandemic.
- ask for the panel to move quickly so they can get on to penalty hearing...
1209 break to 1255
1257 adjustments to time
Boissonneau-Lehner
Not a referendum on public health
Did the statements undermine trust in the nursing profession?
Sarah advocating for others.
Actions rooted in duty to do no harm
Statements made at a time of widespread confusion.
Public Health confusion and mis-steps
Sarah is being scrutinized more intensely than Public Health
She challenged the mainstream narrative
Not asking the panel to endorse her views, but to support her right to debate
Professional regulation must balance members right to speak out
It is essential to be able to speak
Legal Framework
1/ evaluate the allegations rigorously
2/ respect the Charter
Discipline proceedings are quasi criminal, need clear, convincing and cogent evidence
Panel needs to stick to the defined allegations,
False, misleading or inaccurate, disagreement with consensus doesn't count
must consider member's intent, must be conscious disregard for the truth
Statement must meet standard for mispractice
1/ must violate a standard
2/ must be disgraceful, dishonourable or unprofessional
must take context into account, e.g. intent
Doré 2b evaluation
Statements
have to look at the statements themselves
Bernstein, FH and McDougal does not override Bernstein, FH and McDougal applied to a civil suit, supports giving the benefit of the doubt to member
Panel should be mindful of the difficulty of assessing the evidence
Divergence from Public Health is not in itself misinformation.
College hasn't established that Sarah eroded public trust
Disciplining Sarah may undermine public trust
1/ Oct 31 statements were grounded in evidence, were not reckless
Sarah also has a duty to protect the public
2/ Oct 26 commentary on relative impact of Covid-19 and Cardiovascular disease
underlying data is uncontested, does not say COVID-19 was unimportant
3/ Nov 3 rt PCR test cycles. Statement reflects legitimate concerns. Was not being
made to deceive or mislead. Was part of the debate at the time WHO statement on cycles
methodology of testing is essential to foster trust in the public health response
4/ Repost of statement expressing concerns about PTFE in masks, cancer.org, believed the statements
were on cancer.org (what about wayback machine?) good faith effort to contribute to discussion
5/ Nov 2020 Social media post, civil disobedience against lockdown measures, made outside any nurse
client relationship, it is an opinion not a scientific statement
College is excluding disagreements about lockdowns
6/ Roger Hodgekinson - response is the biggest hoax, does not deny the existence of virus
critiques of public health were legitimate
7/ AstraZeneca MRC5 cell line, (actually a different fetal cell line), legitimate ethical debate
shared the post in good faith, College has not established this post caused harm. Sarah had an obligation
to consider needs of clients and conformed consent
8/ Dec the question on everyone's mind. Hoax referred to disproportional responses. Sarah did not endorse.
College has not provided evidence to rebutt this. None of the vaccines were even authorized in Canada,
Long term consequences were the subject of legitimate debate. AstraZeneca was later withdrawn - after initial Canada Health approval
No big spike in overall mortality in 2020 - College has not addressed. Statement did acknowledge death due to COVID-19
Vaccine may alter DNA - MAY, novel technology, it was a hypothesis, not a scientific conclusion.
COVID-19 vs seasonal flu is actually comparable, College has not tendered evidence to disprove
Children risk comparatively low
vaccines can sterilize - has not been disproven, Bridle has written papers on this
Vitamins, medications Juerlink did concede studies existed to support these claims, although he didn't like the studies (cherry picking)
9/ Rachel Cellar .sp not relevant to the pandemic or COVID-19 because video predates the pandemic, member did not link the video to COVID-19
out
10/ Dec 8 2020 Crime against Humanity, Nightengale duty to do no harm, concern about informed consent.
Vaccines were deemed safe, but at the time public health acknowledged uncertainty about long term effects
Crimes against Humanity Nuremberg Code concern about informed consent. College has not shown that it was reckless or misleading
did not claim vaccinators were criminals.
College has not shown public harm
11/ Jan 17 2021 Lee Merritt and Alex Newman: virus weakening over time, hydroxychloquine. College has not shown that Choujounian espoused the
views in this post. Experimental - EUAs were in effect at the time. Juerlink did not meet the burden to rebut the studies supporting vitamins and hydroxychloroquine
12/ 25 Questions: mortality rates. Questions were actively taking place in the public domain. Question about flu question was not false or misleading.
Lockdowns were under debate at the time. Was founded and not reckless
Vaccine - EUs were in effect. Concerns about novel technologies. Sharing questions to provoke discussion
Standards of Practice
standards must be interpreted in context - nexus between profession and expression. Social Media and Public speaches, standards do not extend to all aspects of the nurses life
Divergence from Public Health is not misconduct.
Panel must weigh full context. is there a connection between profession and expression. College has not provided evidence of a consensus among members of the profession.
Context of the pandemic - Public Health rapidly changing, active scientific debate, Genuine engagement in public discourse.
Professional misconduct would set a dangerous precedent.
Charter Rights 2b
Zundel elaborates on 2b, cited to discuss the Supreme Courts summary of value of Freedom of Expression.
2b is among the most cherished rights. Struck down publication ban on Zundel. Zundel majority opinion does not equal truth
Doré/Loyola proportionality
College stretches statutory objectives to trample on Charter 2b. Sask Court of Appeal in Strom
College to demonstrably protect public - but chilling speech will reduce public trust
Does not allow College to censor speech
Contextual factors for professional misconduct: public social media platform, not formal nursing environment, off duty, separate from her professional practice, statements were not intended to provide clinical advice or guidance.
Intent is important - critical dialog, her personal values, informed consent, important to foster public trust
Public Health itself at times contradictory, necessity for open dialog.
College has not provided direct evidence of harm.
Must consider truth and intent
Trozzi - valid to consider principles, but careful about importing analysis, specifics are different
statements are different
Look at actual statements and actual evidence. Zundel - statements are capable of having many meanings. Choujounian and audience meanings are what counts.
Consistent with values of a free and democratic society. essential to informed consent
1447 break to 1500
1504
Shortreed reply
Berstein - no longer applicable. It is a civil proceeding, balance of probabilities is the standard
false/inaccurate OR whether the statements encouraged non compliance - two separate heads of inquiry
disputes over what the posts actually said. College says it is adhering to the actual statement.
The statements were demonstrability false. Context has to be evaluated based on the posts.
Justifications for masks causing brain damage in children are not connected to what she said in the speech.
It's what the speakers said, and the hash tags, emojis that Sarah used do constitute endorsement. Statements fall
outside the scope of reasonable divergence of opinion. They are not speculative. No evidence for DNA modification.
Off duty - Choujounian agreed that standards apply only, all the cases say it can extend to off-duty statements.
She admitted she used her nursing title - nexus is right there.
Encouraging Critical thinking - was an effort to attract followers, case is distinct from Strom and McKenna
Procedural Fairness - didn't memorialize the sources Initial Notice 2021-04-01, 2021-10-21 specific allegation has had the opportunity to
memorialize evidence. had the opportunity to cite papers submitted by her experts
preponderance of scientific evidence
Dr Mazzoulli did not concede Canadian study of 24 cycle cutoff.
1522 break to 1535
1550 Christopher Wirth - Independent Counsel advice
2 allegations
- standard of practice
1605 Christopher Wirth - Independent Counsel advice
2 allegations
- standard of practice
- disgraceful, dishonourable, unprofessional conduct
Balance of Probabilities clear cogent and convincing evidence
assess the evidence and make finding of fact
determine if the College has proven the allegations
Charter Analysis
Must accept the partial Agreed Statement of Facts
Can take judicial notice of facts
1/ there is a pandemic
2/ COVID-19 kills people including children
3/
4/ Approval is a strong indication of safety and effectiveness
Trozzi case also took judicial notice
Review evidence based on your notes (transcript?)
Credibility - honest? reliable?
- common sense, but no stereotypes
- minor discrepancies shouldn't
- appearance and demeanour (careful)
- capacity to remember
- ...
expert witness:
- even though qualified, must still weigh the witness
- should only consider testimony in qualified areas
- did the expert have any bias
- was the expert contradicted
- how they acquired their expertise
ultimately up to you as to how much of the testimory you accept
1/ need evidence of standards of practice
2/ dishonourable, disgraceful
have to identify the conduct
is there a nexus to the practice of nursing
having regard to all of the context would other nurses regard it a such
disgraceful shames the profession, worse than dishonourable
Charter Analysis in case of professional misconduct
Doré applies, balance statutory objectives vs members freedom of expression,
proportional balance, no more than required by statutory objectives.
Statutory object to regulate the profession in the public interest
Public Health Emergency context, Trozzi
Panel has to decide on statutory objectives
Freedom of Expression is an important part of a democratic society
Is it the least intrusive restriction on the members Freedom of Expression
1635
B-L should also consider member's submissions on statutory objectives for the College
M-S should have regard to what is in the statute
1640 adjourned - will be in touch with decision...