Challenging the constitutionality of Alberta’s public health measures

Ingram et al. v. Alberta

Alberta Chief Medical Officer of Health Dr. Deena Hinshaw (Photo Credit: Government of Alberta)

Challenging the constitutionality of Alberta’s public health measures

Ingram et al. v. Alberta

Alberta Chief Medical Officer of Health Dr. Deena Hinshaw (Photo Credit: Government of Alberta)

“Two weeks to flatten the curve” turned into months and years  

The Alberta Government first declared a state of public health emergency on March 17, 2020, in response to exaggerated predictions about the lethality of Covid. Under the slogan of “two weeks to flatten the curve,” which eventually turned into months and then years, the resulting lockdowns devastated small businesses and led to large-scale societal harm in the form of increased unemployment, poverty, deteriorating mental and physical health, drug overdoses, cancelled surgeries, the loss of personal liberty and even death in some cases. 

On November 24, 2020, the Alberta Government again declared a state of public health emergency, imposing a “second wave” of lockdown harms and authoritarian restrictions, limiting the ability of Albertans to travel, conduct business, visit family and friends, obtain necessities, to peacefully assemble, manifest their religious beliefs, and breathe freely without surgical or cloth masks. Weddings and funerals were limited to 10 people. Between March and November 2020, Alberta’s Chief Medical Officer of Health (CMOH) had pronounced 40 public health orders that had violated constitutionally protected rights and freedoms.

On December 8, 2020, the Alberta government announced a repressive slate of restrictive lockdowns reminiscent of the Stage 1 of lockdowns implemented in March 2020.

As of December 13, 2020, all gyms, casinos, hair salons, massage therapy clinics, tattoo shops, concert halls, and other businesses would be shut down. Restaurants would be allowed to stay open with limited take-out and delivery services only. The Alberta government outlawed any outdoor and indoor social gatherings of except for those within one’s own household. It imposed a mandatory work-from-home order. 

During that time, the Justice Centre was inundated with thousands of emails from people who were being financially ruined by Covid lockdowns, suffering mental health issues, losing their businesses, unable to see their elderly parents, and being denied critical healthcare. 

 

Justice Centre challenges Alberta lockdowns

On December 17, 2020, Justice Centre lawyers filed a court challenge to end the violation of Albertans’ Charter rights and freedoms. The challenge targeted Orders made by the Chief Medical Officer of Health and select unconstitutional sections of the Public Health Act. The lawyers represented two Alberta churches and two individuals, alongside of Calgary lawyer Jeffery Rath who represented Rebecca Ingram, who owned a gym business in Calgary. 

The court challenge stated that the Alberta government had violated the right to peaceful assembly, the right to travel, the right to conduct a business to earn a living, the right to visit family and friends—including have visitors in a private residence—and the right to worship. It also stated that the lockdown measures violated the Alberta Bill of Rights. 

Justice Centre lawyer James Kitchen stated, “In a free society, the government respects citizens as they exercise their freedom and responsibility to respond to a perceived crisis as they deem best for themselves and their loved ones. Arbitrary and authoritarian control, based on fearmongering by the government, only ever exacerbates the problems facing society, as we have seen for the last nine months. Politicians have not put forward any persuasive evidence that lockdowns have saved lives, but there is no question that lockdowns have caused grave harm to millions of Canadians suffering unemployment, poverty, cancelled surgeries, suicides, isolation and the loss of their liberty.” 

“The people of Alberta have suffered under the oppression of a medical dictatorship for long enough. The soul-destroying lockdowns have wrought havoc. It’s time for Albertans to get their freedom back,” concluded Mr. Kitchen. 

 

After two years to “flatten the curve,” Albertans finally get their day in court 

In February 2022, the matter was in virtual Court for a scheduled 14 days. Lawyer Leighton Grey conducted the constitutional challenge brought by the Justice Centre. He was joined by lawyer Jeffrey Rath. 

By then, information on the lethality of Covid was better understood. In February 2022, in the Province of Alberta, only 0.000025 percent of the total population had died from an alleged Covid infection without any other fatal comorbidities. 

On February 11, 2022, Stanford epidemiologist Dr. Jay Bhattacharya testified as an expert witness on public health and Covid. Dr. Bhattacharya had previously testified in other challenges to lockdowns, including the Justice Centre’s challenge in Manitoba. 

Dr. Bhattacharya withstood vigorous cross-examination, maintaining that the societal costs of lockdown measures vastly exceeded their benefits, and that the preferred approach was the focused protection of those most vulnerable to severe health outcomes from Covid, e.g., individuals over 60 years of age who suffer from multiple co-morbidities. 

Colonel David Redman also testified on behalf of the Applicants about Alberta’s refusal to follow its own 2014 pandemic response plan, its failure to develop a coherent Covid management plan, and the severe public costs of lockdown measures. 

The Court denied the joint Application of Mr. Grey and Mr. Rath to have The Honourable Brian Peckford P.C., former Premier of Newfoundland, and one of the original drafters and signatory to the Charter of Rights and Freedoms, testify in the case. The Court described Mr. Peckford as private citizen whose first-hand knowledge of Section 1 of the Charter was “irrelevant” to the issues to be decided by the Court. 

 

Justice Centre lawyers cross-examine Dr. Deena Hinshaw

In April 2022, Dr. Deena Hinshaw, Justice Centre lawyers cross-examined Alberta’s Chief Medical Officer of Health, Dr. Deena Hinshaw. Lawyer Leighton Grey asked if Dr. Hinshaw agreed that her position was a political appointment. She agreed but noted that the appropriate legislation had been changed to require those appointed to be specially trained in public health. Mr. Grey asked if she agreed that the role of the Chief Medical Officer had been greatly expanded recently. Dr. Hinshaw disagreed and said her role was to provide advice to elected politicians who made decisions. She would not agree that the power to issue province-wide public orders was new. 

In response to Mr. Grey’s suggestion that he did not recall there being a designated Chief Medical Officer of Health for the entire province until recently, Dr. Hinshaw said that the position had existed “for decades.” She stated that the position extended back a century to the creation of the first Alberta Public Health Act. 

Mr. Grey then stated that it was his understanding that what was new in the legislation was the ability of the Chief Medical Officer of Health to use “any means necessary” to control an outbreak like the pandemic. Again, Dr. Hinshaw disagreed, saying “’by-any-means-necessary’ predated the pandemic.” The two managed to agree that the way the public health orders had been used during the pandemic was without precedent. 

With regards to expertise, Mr. Grey noted that Dr. Hinshaw was not an expert in virology or epidemiology, though she would often speak publicly about these issues. Dr. Hinshaw conceded she was not an expert but considered herself competent in these subjects. 

Mr. Grey tried to pin down where exactly the health orders came from because Dr. Hinshaw would sometimes indicate that these were her orders, and at other times she would say these were Cabinet orders that she would publicly announce. Justice Romaine halted the proceedings to announce that she would question Dr. Hinshaw herself in camera (privately) about the source of the Public Health Orders. 

On August 23, 2022, Justice Centre lawyers filed a court application to compel Dr. Deena Hinshaw to re-attend court for further cross-examination. The application argued that Dr. Hinshaw had deliberately withheld evidence from the court regarding her knowledge of the dangers and harms of forced masking on children. A court hearing was scheduled for Friday, August 26, 2022, to re-open the case based on new evidence. 

The application also requested that the Court require Dr. Hinshaw to produce all of her recommendations to the Kenney government related to her own Covid lockdown orders, as well as to require Dr. Hinshaw to answer all questions that were previously objected to by counsel for the government of Alberta on the basis of Cabinet Confidentiality. 

Dr. Hinshaw was cross-examined from April 4 to 7, 2022. On July 13, 2022, in a separate, unrelated court case (CM v. Alberta) the Honourable Justice Dunlop ordered the release of documents over which Premier Kenney’s cabinet had previously claimed Cabinet confidentiality. 

The now-public documents contained a memo generated by the Premier’s office, sent to both Premier Kenney and Dr. Hinshaw, regarding lack of evidence to justify forced public masking and the dangers to children from forced masking. The Alberta government failed to disclose the existence of these documents to the Court in the current constitutional challenge. 

According to the Application, the government-generated memo stated that: 

  • There is insufficient direct evidence of the effectiveness of face masks in reducing transmission of Covid in educational settings,
  • That there are harmful effects of mask wearing on children; and 

The memo further stated that masks can: 

  • Disrupt learning,
  • Interfere with children’s social development,
  • Interfere with children’s emotional development, 
  • Interfere with children’s speech development, 
  • Impair verbal and non-verbal communication, 
  • Impair emotional signalling, and 
  • Impair facial recognition. 

During her cross-examination in April 2022, Dr. Hinshaw was specifically asked whether she was aware of any evidence of harms to elementary school children compelled to wear masks. Dr. Hinshaw answered this question before the court in April in the negative. The Application contends Dr. Hinshaw’s answers to this line of questions were false, and that she failed to disclose her knowledge of the harms to children from forced masking. 

 

Alberta Court invalidates public health orders

On July 31, 2023, the Court of King’s Bench of Alberta’s issued its decision to invalidate the public health orders of Dr. Deena Hinshaw, Chief Medical Officer of Health of Alberta. Justice Barbara Romaine struck down these Covid measures because they were effectively issued by Cabinet rather than by the Chief Medical Officer of Health. Dr. Hinshaw testified that politicians were the final decision-making authority, and that she merely provided advice and recommendations. 

In her concluding remarks, Justice Romaine stated, “While involvement of elected officials in these important decisions may be desirable and even necessary, this involvement should have been structured in such a way as to mitigate the risk of political priorities interfering with the informed and well-qualified judgment of the [Chief Medical Officer of Health], as provided in the Public Health Act, without ignoring the underlying public interest.” (emphasis added)

The court’s ruling also confirms that lockdowns did violate Albertans’ fundamental freedoms of conscience, religion, association, and peaceful assembly protected in the Canadian Charter of Rights and Freedoms. However, Justice Romaine ruled that the Charter rights violations were justified. In this court action, the Alberta government produced no comprehensive studies, reports or data analyzing lockdown harms. Without any comprehensive cost-benefit analysis, Justice Romaine nevertheless concluded that lockdowns were justified violations of Charter freedoms because they produced more good than harm.  

“Significant injustice has taken place in the past three years under these draconian public health measures. We are hopeful this ruling will mean the withdrawal of charges against Pastor James Coates, Fairview Baptist Church, Ty Northcott, and other courageous citizens who refused to comply with unjust and utterly unscientific measures,” stated John Carpay, President of the Justice Centre. 

Later, as a result of the Ingram ruling, these charges were withdrawn.

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November 24, 2020: Province of Alberta, Order in Council – State of Emergency
November 24, 2020: Office of the Chief Medical Officer of Health, Public Health Order 38-2020
December 17, 2020: Originating Application
December 13, 2020: Brief of Applicants in Support of Application for Injuctive Relief
December 19, 2020: Brief of Respondents (Government of Alberta, CMOH Hinshaw)
January 5, 2021: Affidavit of Jay Bhattacharya (expert report brought over from Manitoba case)
July 8, 2021: Affidavit of Chris Shandro
July 8, 2021: Dr. Jason Kindrachuk Expert Report
July 9, 2021: Dr. Nathan Zelyas Expert Report
July 11, 2021: Affidavit of Kimberley Simmonds
July 12, 2021: Affidavit of Darren Hedley
July 12, 2021: Affidavit of CMOH Dr. Deena Hinshaw
July 12, 2021: Affidavit of Patricia Wood
July 16, 2021: Affidavit of Scott Long
July 7, 2021: Expert Report of Dr. Thambirajah Balachandra
August 3, 2021: Written Interrogatories for Dr. Hinshaw
September 5, 2021: Expert Report of Scott Long
September 1, 2021: Pre-trial Factum of the Applicants
September 21, 2021: Responding Brief of the Applicants
September 28, 2021: Justice and Solicitor General – Notice that Chief Medical Officer is taking a holiday
June 10, 2022: Final Arguments of Applicants
July 13, 2022: Alberta Government Closing Argument
July 27, 2022: Applicant’s Final Reply to the Respondents
Book of Authorities of the Applicants
Respondent’s Book of Authorities to the Reply of the Applicants
August 10, 2022: Affidavit of Lesley Doucet affirmed
August 12, 2022: Applicants’ Written Brief
August 12, 2022: Letter to The Honourable Justice Romaine from Leighton Grey (lawyer for the Applicants)
August 23, 2022: Amended Application (seeking documents not disclosed to Applicants)
July 31, 2023: Court of King’s Bench Decision

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