In the Alberta Health Services (AHS) v. Artur Pawlowski and Dawid Pawlowski decision last September, Justice Adam Germain found the two brothers in contempt of court. The Pawlowski brothers openly challenged health ordinances and court orders and did not deny defying AHS and the courts. They refused to obey panic-stricken authorities, as is their right, and are willing to suffer the consequences. That’s how civil disobedience works.
Last week the Court of Appeal stayed enforcement of the nastiest features of Justice Germain’s decision though this hasn’t been reported in the legacy media. Such nasty portions have been well covered, but the highly political parts in Germain’s decision have not.
Judges have political opinions, of course, but are expected to balance argument and evidence. None of the “Background” section in Justice Germain’s decision considered that there are valid and justifiable concerns for health, economy or liberty among citizens. AHS lawyers could not have written a more unbalanced section.
The “Background” was dressed in the same moral panic Alberta’s government and medical bureaucrats embrace. Its three paragraphs showcased fear: “…the threat to Albertans from COVID-19 has never been greater.” “ICU units …are overwhelmed.” “…the [COVID-19] impact on Alberta in terms of health, human suffering and economic impact has never been worse,” Justice Germain wrote. Higher numbers of cases aside, the available evidence proves the measurable aspects of Justice Germain’s statements are wrong or exaggerated.
Underlining the moral panic, Justice Germain charged Pawlowski with daring to engage “in both direct and public defiance of a court order designed to save people’s lives.” He implied that Artur Pawlowski is hateful and in singular disrespect to his flock, the judge dismissed Pawlowski’s church as an ego trip. He casted doubt on the pastor’s integrity, claiming that he had “parlayed his title” into personal advantage and chastised him for airing “grievances about Alberta in another country.”
Justice Germain was silent about world-wide policy and scientific debates showing that lockdowns and aggressively restrictive measures do not stop viruses. Without evidence, he demonized Pawlowski for having “contributed to this ominous health situation.” The virus has returned time and time again, he hinted, because Albertans disobey life-saving AHS orders, and people were dying (Premier Kenney says the same).
Pawlowski was ostensibly killing people so a disproportionate response, completely violating Pawlowski’s freedom of movement and conscience, was necessary. Not limiting himself to politics and epidemiology, Justice Germain appealed to “history” and “science.” The Pawlowski brothers “and others that I deal with in the sanction hearings are on the wrong side of science, history, and common sense on this issue” [emphasis added], he wrote.
In accusing Pawlowski of being on the wrong side of something, Justice Germain tacitly claimed knowledge of the right side. Do science and history have categorical right sides?
Science is a human activity propelled by questions about the nature of the world. The questions scientists ask challenge existing knowledge and orthodoxy. No scientific advance can ever be possible without challenging present and past scientific authorities. And because science is constructed from multiple views, it is always knowledge in flux. Science has no right side.
In crises, scientific knowledge is even more provisional. It is even more embarrassing for non-scientists to lay claim to the right side of science when COVID-19-related scientific debates rage around the world in real time. Scientists have no idea where the COVID-19 debates will land. So, the dogmatic claim that science is settled, in any age and on any issue, is embarrassingly and unscientifically ideological. The absolute is dogma, not science.
And the “right side of history”? History too is a human activity, not an impersonal mechanism. Historical knowledge is contested human knowledge, never fully complete. It is constructed from evidence and multiple perspectives about past events.
The notion of a “right side of history” springs from revolutionary politics. On trial for his attack on the Moncada garrison in 1953, for example, Fidel Castro shouted that only history could judge him. He meant that his acts were historical and that historical judgements belong in the future. The court had thus no legitimacy to judge him.
Progressives and revolutionaries pridefully claim to know the historical rightness of present events. Their elevated consciousness is a crystal ball that allows them to determine how the future sees the present. It’s nonsense, of course. The future, and the present, always contest and reinterpret the past. The claim to being on the right side of history is at best a dogmatic prediction, not historical knowledge.
Thoughtful jurists understand that science and history are limited human conversations, not impersonal absolutes to be imposed. As with judicial decisions that can be reviewed, questioned, reinterpreted and reversed, there is no last word on scientific and historical knowledge. Typically, good science and good history are just like good judicial decisions, well balanced.