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College of Chiropractors of Alberta v Dr. Curtis Wall

Case Description

Dr. Curtis Wall is a chiropractor in Calgary. He has been providing quality care to his patients for over 20 years. He has never been disciplined for unprofessional conduct.

In May 2020, the College of Chiropractors of Alberta implemented a no-exceptions mask mandate for all Alberta chiropractors through its Pandemic Practice Directive. The College required chiropractors to wear a face mask while treating patients. Dr. Wall attempted to wear a mask for several weeks, but found he was unable to due to severe anxiety and claustrophobia he experienced when wearing a mask. Given the harm wearing a mask caused him, and understanding the ineffectiveness of masks, Dr. Wall did not wear a mask while treating patients from June 2020 onward. His patients were understanding, and some were thankful because they appreciated being treated by someone not wearing a mask. Unsurprisingly, there is no evidence any of Dr. Wall’s patients were ever harmed in any way by Dr. Wall’s decision not to wear a mask.

In early December 2020, Alberta Health Services received a complaint that Dr. Wall was not wearing a mask, which it forwarded to the College.

The College contacted Dr. Wall, who acknowledged that he was not wearing a mask while treating patients. Dr. Wall asked the College for human rights accommodation on the basis of mental disability (the aforementioned anxiety and claustrophobia). Dr. Wall obtained a doctor’s note from a Calgary physician verifying his medical inability to wear a mask, and provided the note to the College.

The College refused to accommodate Dr. Wall, and, instead, immediately applied pursuant to section 65(1)(b) of the Health Professions Act to suspend Dr. Wall’s practice permit. Such suspensions are reserved for rare and urgent circumstances involving a high risk of real harm to members of the public, such as when there is evidence a professional is stealing from their patients, showing up to work intoxicated, or sexually abusing patients or staff.

Fortunately, thanks to the efforts of Dr. Wall’s lawyer, James S.M. Kitchen, the College was not successful in suspending Dr. Wall’s license. A person appointed by the College to decide applications to suspend practice permits denied the College’s application on December 18, 2020 and directed that Dr. Wall be permitted to treat patients without wearing a mask.

The College then issued a long list of charges of unprofessional conduct against Dr. Wall, most of which related to Dr. Wall not wearing a mask while treating patients and permitting his patients to not wear a mask.

In April 2021, as part of his defence against the charges, Dr. Wall provided the College with three expert opinion reports from Respirologist Dr. Bao Dang, Viral Immunologist Dr. Byram Bridle, and an infectious disease consultant.

A disciplinary hearing before a Tribunal was scheduled to commence in July 2021.

The College sought an adjournment of the July 2021 hearing dates because it had not yet secured an expert witness. The College eventually obtained an expert witness, a local physician, and submitted an expert opinion report. The hearing commenced on September 1, 2021. Prior to the hearing, Dr. Wall submitted a fourth expert opinion report from an occupational health and safety consultant, Chris Schaefer.

On cross-examination, the expert witness for the College twice retracted portions of his report and was repeatedly rebutted by Dr. Wall’s expert witnesses. Dr. Wall’s expert witnesses established that within minutes of wearing a mask the wearer begins suffering the toxic effects of oxygen deprivation and overexposure to carbon dioxide, and that the wearing of masks by asymptomatic people has no meaningful impact on the rate of transmission of SARS-CoV-2.

Eight days of evidence was heard by the Tribunal between September 1, 2021 and January 29, 2022. Transcripts of all eight days were produced. Closing arguments were scheduled to be heard on April 11-12, 2022.

In February 2022, shortly before final transcripts were produced, Mr. Kitchen notified the College that Dr. Wall would be exercising his constitutional rights to freedom of expression and a fair and public hearing by publicly sharing the transcripts of the testimony of all the expert witnesses. No legal obligation was on Dr. Wall to provide the College with said notification, it was done out of courtesy.

Anticipating the College may object to the publication of transcripts Dr. Wall offered to redact the names of all College personnel, Tribunal members, lay witnesses, and the College’s expert witness. Dr. Wall’s intention was to only publish the expert witness evidence and the identities of his expert witnesses. The College objected to any form of publication and applied to the Tribunal to make the entire record secret. Dr. Wall contested the application, which was heard by the Tribunal on February 25, 2022.

On March 16, 2022, The Tribunal issued its decision regarding the College’s application for a publication ban. The Tribunal rejected a total publication ban and ordered that the expert witness transcripts could be released to the public by Dr. Wall.

Unfortunately, the Tribunal’s March 16 decision was otherwise unclear. However, based on the positions of the parties taken at the February 25 hearing, it was plain and obvious to Dr. Wall that he was permitted to publish the names of his four expert witnesses when he published the evidence of his expert witnesses. Dr. Wall proceeded to publish the transcripts of expert testimony. He ensured the names of all individuals except his own expert witnesses were redacted.

On March 28, 2022, the prosecutor for the College wrote to the Tribunal, by way of the lawyer for the College, taking the bizarre position that Dr. Wall had breached the Tribunal’s March 16 decision by publishing the names of his own expert witnesses.

The prosecutor for the College further insinuated that Dr. Wall’s defence is frivolous and that Dr. Wall is to blame for the College having spent over $200,000 thus far on prosecuting Dr. Wall. In response, Mr. Kitchen alleged that the prosecutor for the College engaged in prosecutorial misconduct and applied to the Tribunal for the removal of the prosecutor.

On April 6, 2022, the prosecutor for the College stated he was retiring effective April 13.

On April 12, 2022, the Tribunal held a hearing about whether Dr. Wall could publish the names of his own expert witnesses. On June 1, 2022, the Tribunal issued its decision. The Tribunal ruled that Dr. Wall “violated the spirit of” its March 16 decision. As a result, the Tribunal ordered that the transcripts already published by Dr. Wall be withdrawn and only re-published with the names of Dr. Wall’s expert witnesses kept secret.

On June 16-17, the Tribunal heard closing arguments from the College and Dr. Wall. Members of the public attended as observers. As the hearing started, Mr. Kitchen asked the Tribunal to clarify that the observers were permitted to publish the names of expert witnesses they would hear during oral submissions. In response, the Tribunal, of its own motion and without submissions from the parties, orally ordered observers must not publish the identities of “the expert witnesses, the tribunal witnesses, the tribunal members and legal counsel”, further broadening the blanket of secrecy covering the prosecution of Dr. Wall.

By way of its three decisions on March 16, June 1, and June 16, the Tribunal ordered the identities of every individual involved in the College’s disciplinary proceedings against Dr. Wall to be secret until the Tribunal issued a final decision. Every lay witness, every expert witness, every lawyer, and each of the four Tribunal members. Such a broad publication ban and such a severe limitation of the open court principle could only be justified in the face of evidence that is utterly lacking in this case.

The law is clear that all proceedings before courts and tribunals are presumptively open and accessible by the public and the media, including the evidentiary record and the identities of individuals involved in the proceeding. Such is the open court principle that undergirds the Canadian legal system and is reflected in the individual constitutional rights to free expression and a fair and public hearing.

Publication bans cover professional disciplinary proceedings in secrecy, which prevents the public scrutiny necessary to ensure professional disciplinary tribunals remain in the business of conducting fair trials, not mere show trials or proceedings in which conviction is a foregone conclusion. The supervision of the public ensures that state actors like the College or the Tribunal do not abuse the right to be presumed innocent, and do not institute unfair procedures.

In August 2022, Mr. Kitchen provided the College with a court application to strike down the Tribunal’s publication ban orders. Implicitly acknowledging the unlawfulness of the publication bans and wishing to avoid likely defeat before the courts, the College agreed to the rescission of the publication bans. As a result, the identities of Dr. Wall’s expert witnesses are no longer secret.

Further, all remaining publication bans on the identities of those involved in the prosecution of Dr. Wall will be lifted when the Tribunal issues its decision on whether or not Dr. Wall committed unprofessional conduct by not wearing a mask and letting his patients not wear a mask. It will no longer be secret who, for example, the College’s expert witness was, or which four people make up the Tribunal that will decide Dr. Wall’s fate.

Mr. Kitchen and Dr. Wall wait for the Tribunal’s decision. They await to see if the Tribunal will bravely follow the law and the science, or disregard both in order to align with the College’s COVID narrative.

Defending Dr. Wall against the College of Chiropractors of Alberta is LCC Chief Litigator, James S.M. Kitchen. Liberty Coalition Canada is assisting Dr. Wall with his legal expenses and encourages supporters to donate toward Dr. Wall’s case.

"Sometimes your freedom is not taken away at gunpoint but instead, one piece of paper at a time, one seemingly meaningless rule at a time, one small silencing at a time. Never allow the government-or anyone else–to tell you what you can or cannot believe or what you can and cannot say or what your conscience tells you to do or not do."

- Armando Valladares
CUBAN POET

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