Role of politicians in pandemic restriction decision-making breached Alberta Public Health Act: Calgary judge

Alberta's top elected officials made decisions about pandemic-related health measures, but the law required those to be made by the province's then-chief medical officer of health Dr. Deena Hinshaw, a Calgary judge has ruled.

Justice Barbara Romaine's long-anticipated 90-page decision filed Monday afternoon comes following a court action which began in December 2020 when a group of plaintiffs including two churches and a gym owner argued pandemic-related public health measures were contrary to Alberta's Bill of Rights and unlawfully breached Albertans' Charter-protected rights.

Romaine found that when it came to public health measures, "the informed and well-qualified" Hinshaw made recommendations and ultimately implemented the restrictions, but it was cabinet and committees which had final decision making power.

"Although, Dr. Hinshaw was maligned during the pandemic and afterwards as the symbol of the restrictions, she was not in fact the final decision-maker," wrote Romaine.

Romaine wrote that the orders made were in fact, outside the powers of Alberta's Public Health Act because they were made by politicians and not Hinshaw.

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Romaine ruled that even if the proper decision-making framework was in place, Albertans' constitutional rights would not have been violated.

While the Alberta government conceded that some of the restrictions infringed on Albertans' rights, Romaine found others did not. She also ruled the infringements that did occur were "amply and demonstrably justified" under the Charter because of the nature of the unprecedented public health emergency.

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Monday's decision couldleavea number of cases in which pandemic-related charges were laid against those accused of breaching public health rulesin limbo.

Among those litigantsis anti-lockdown rodeo organizerTyNorthcott,whose trial waspaused pending Romaine's decision.

Thislawsuit dates back to 2020 when the same group of plaintiffs filed an emergency injunction, seeking to stay Alberta's public health restrictionsin time for Christmas.

Emergency injunction denied

At the time, the government, led by then-premier Jason Kenney, ordered the closure of casinos and gyms. It also banned outdoor and indoor social gatherings and imposed a province-wide mask requirement.

Four days before Christmas 2020, Justice Anne Kirker refused to grant the stay of restrictions. Kirker foundthe risk of transmission of COVID-19 wasreal and ruledthat health measures were in the public's best interests.

Kirker's decision promptedthe case to move to a full hearing, which got underway in February 2022.

• Judge refuses to grant stay in legal challenge of Alberta's COVID-19 restrictions

The plaintiff group argued the virus did not kill younger, healthy people, also known as the "working well." They also argued the government-imposed restrictions did more harm than good.

"The tensions between individual liberty and the greater goodis the heart of this case," said lawyer Leighton Grey back in April 2022. Greysuggested the province "trampled" on individual rights by not looking at the overall picture.

Lawyers for the government argued the province was experiencing "democracy in action in the middle of the biggest public health crisis this province has seen."

As part of the legal challenge, a 206-page affidavit from Alberta's then-chief medical officer of health Dr. Deena Hinshawwas filed by the province,leading to a days-long cross examination of the doctor.

Hinshaw testifiedthat the restrictions were necessary to protect Alberta's health care system during the pandemic while pushing back againstGrey who suggested there was no real data which proved the effectiveness of public health measures.

Grey challenged Hinshaw's "extraordinary" powers given she was not elected. But the doctor pushed back, stating elected officials were the ultimate decision makers on her recommendations.

The province recorded more than 5,800 deaths from COVID-19.