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Good morning,

I appreciate the efforts of all counsel to make themselves

available this morning.

As you know, I am currently working on my reasons for

decision respecting the administrative and constitutional

challenge brought by the applicants in the present case. My

decision and the related reasons will follow what was a robust

hearing involving extensive affidavit and cross-examination

evidence in respect of a number of witnesses. I expect my

decision and the accompanying reasons to be ready and available

in the next few short weeks.

However, separate and apart from that anticipated decision,

I have in the last three days, come into possession of information

which you as counsel in this case, should yourselves be made

aware of. The matter that has come to my attention, while

gravely concerning for the administration of justice, should not in


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my view have an impact on this case or my analysis of the

administrative and constitutional issues that arise in this case.

Nonetheless, now that I have become recently aware of this

information, in the spirit of full transparency, you as counsel

should also know this information.

Put simply, in my view, it would be unthinkable and

inappropriate to carry on with the completion of my reasons for

decision without sharing this information with you as counsel.

So let me now move to the matter that has now come to my

attention.

On July 8, 2021, late last week, after having left the

Manitoba Law Courts Building parkade, and while driving around

the City of Winnipeg to do various errands, I discovered that I

was being followed by a vehicle that I did not recognize. I have

since learned that I was being followed by someone who is

working for a private investigation agency. That private


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investigation agency was apparently hired by a person or persons

for the clear purpose of gathering what was hoped would be

potentially embarrassing information in relation to my compliance

with COVID public health restrictions.

The scope of this private investigative activity extended to

the point where there was an attendance to my private residence

in the City of Winnipeg on that same day, July 8, 2021, where, a

young boy described as approximately 14 years of age, exited as

a passenger of an unknown vehicle. The young boy went to the

front door of my residence, rang the doorbell and made inquiries

of my daughter respecting my presence. I was not home at the

time. In walking away, the young boy nervously refused to

provide information about his inquiries or his attendance at my

private residence. Based on subsequent information, it is

believed that this was an attempt related to the work of the

private investigation agency to confirm the location of my private


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residence. How the private and sensitive details of my home

address was obtained, remains unknown.

The City of Winnipeg Police Service was called in, as was the

Government of Manitoba’s Internal Security and Intelligence Unit.

I am told that the investigation is ongoing, but the nature of the

private investigation agency’s retainer has been confirmed. The

agency was indeed hired by a person or persons or an

organization to follow me for the purposes of surveying me for

any non-compliance with COVID-19 health restrictions.

I will pause at this point to state the obvious that the

Government of Manitoba Public Safety Unit has confirmed clearly

that they do not conduct surveillance using a private investigation

agency for the purposes of investigating or enforcing COVID-19

Public Health Order compliance. The Manitoba Public Safety Unit

confirms as well that they do not use private investigation

agencies with judges anymore than they would with private


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citizens. Accordingly, it would appear that a reasonable inference

can be drawn that the private investigator was hired by a private

citizen or citizens or an organization. Up until now, and following

the discovery of this conduct, the owner of the private

investigation service has refused to reveal who hired his agency

to perform the services I have described.

The exact nature of the surveillance remains unknown to

me, but incredibly, it would have included, amongst other things,

attendance at, near and around my private cottage. As with my

private residence, how that private and sensitive information

would have been obtained, remains similarly unknown.

To repeat, to date, the private investigation agency has not

disclosed who hired them to conduct this surveillance clearly

designed for the purposes of gathering potential information that

might embarrass me in respect of any potential non-compliance

with public health restrictions.


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Obviously, this ongoing surveillance that I have described

and the connected intrusion into my privacy, have serious

implications not only for the public safety of judges generally, the

privacy of their residences and private property, but also, it has

significant implications respecting how any such gathered

sensitive information and private detail is shared, and with whom.

No less importantly, and in the specific and relevant context of

this case, the commencement and existence of this private

investigation and surveillance has potential implications for the

administration of justice where this type of surveillance is being

conducted of a judge involved in a case dealing with the validity

and constitutionality of Public Health Orders.

Without wishing to sound apocryphal, as it relates to the

still-unknown person or persons who hired the agency, the

situation I have described raises the spectre of potential


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intimidation, and it can also give rise to possible speculation

about obstruction of justice, direct and indirect.

While this rather incredible conduct that I have just

described involves me as the presiding judge in the present case,

as a Chief Justice of a Superior Court and as a member of the

Canadian judiciary, I am deeply concerned that this type of

private investigative surveillance and conduct could or would be

used in any case involving any presiding judge in a high-profile

adjudication.

So who hired the private investigator? As of now, we do not

know.

Not knowing at this time who it was that hired the private

investigative agency creates a significant difficulty and

impediment when trying to conduct an accurate and comforting

risk and public safety assessment, now and/or in the future. Not

knowing who hired the private investigator in the context of


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everything that I have described, also makes it impossible to

know what if any connection may exist between any attempts to

embarrass me and my specific adjudication of this case. For now,

those questions remain unanswered. It is my hope and

expectation that the independent Winnipeg Police Service

investigation identifies and determines as soon as possible the

person or persons who hired the private investigation service.

The proper administration of justice requires that clarity and it

deserves nothing less.

It is also my hope that the Government of Manitoba and the

relevant regulatory authorities bring a closer examination as to

how private investigation agencies are licenced and how, if at all,

they are overseen. If we are now in an era, where, a private

investigation agency can be permitted to accept this type of

retainer, and if we are now in an era, where, a sitting judge, in

the middle of a case, can have his or her privacy compromised as


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part of an attempt to gather information intended to embarrass

him or her, and perhaps even attempt to influence or shape a

legal outcome, then we are indeed, in unchartered waters.

As mentioned at the outset, I raise this matter now so that

all counsel are aware of the information with which I have come

into possession.

Having now learned about the activity I have described and

having shared with you the obvious concerns that accompany it,

you should know that I am drawing absolutely no conclusions nor

am I speculating about who may have hired the private

investigation agency. I assume unhesitatingly that no party in

this case had anything to do with the private investigation I have

described, directly or indirectly. For the purposes of this case,

nothing about the information with which I am now in possession,

in any way, will influence me or prevent me from impartially

assessing the evidence and conducting the necessary analysis


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that I must conduct to make the determinations I am required to

make to decide the administrative and constitutional issues in this

case. That said, it was nonetheless important for this information

and my knowledge of the information to be shared with you so

that you as counsel may advise your clients and be instructed

accordingly.

So with that, I turn to counsel for whatever submissions you

may wish to make.

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