Alberta COVID Case Ruling a ‘Thin Victory’ for Those Challenging Restrictions: Lawyers

A pedestrian walks beneath Christmas decorations in an empty downtown Calgary on Dec. 9, 2020, after new provincial restrictions were announced amid the COVID-19 pandemic. Jeff McIntosh/The Canadian Press

An Alberta court has ruled that public health orders issued by the province’s Chief Medical Officer of Health (CMOH) during the pandemic were invalid because they were enacted outside the powers of the Public Health Act, and were made by cabinet, not the top medical officer.

Constitutional lawyer James Kitchen says the July 31 ruling is a win for those challenging the government’s COVID restrictions, but only on a “technicality,” which he characterizes as a “thin victory” for them.

“The result of this decision should be that outstanding tickets issued pursuant to these orders be withdrawn or stayed. That itself is a significant victory,” Mr. Kitchen told The Epoch Times.

However, the judge’s ruling suggests the extreme measures the government took during the COVID pandemic were “substantively acceptable,” and Alberta officials just went about it the wrong way, he said.

Chief Medical Officer of Health Dr. Deena Hinshaw provides a COVID-19 update in Edmonton, on Sept. 3, 2021. Jason Franson/The Canadian Press

“Next time, they can do that same thing and it will be lawful as long as they don’t make this technical mistake,” said Mr. Kitchen.

He said the ruling may result in individual wins for claimants on outstanding COVID prosecutions, but suggests the long-term outlook for cases argued on the charter is more bleak.

Those seeing the restrictions as infringements on their freedoms “must not take this case as vindication or as something they can use in the future to hold the government accountable. In the long run, if the government wants to do this again, this case is a big green light from the courts to do so,” said Mr. Kitchen.

Ruling

The 90-page court decision, issued by Court of King’s Bench of Alberta Justice Barbara Romaine, followed a legal challenge to COVID public health orders ostensibly enacted by then-chief medical health officer Dr. Deena Hinshaw. The challenge, filed by two churches and a business owner in December 2020, alleged that CMOH orders were outside the power of the Alberta Public Health Act and were unconstitutional.

Justice Romaine’s decision found that the CMOH orders up until September 2021, the time frame covered by the legal action, were indeed “ultra vires,” meaning beyond the powers provided by law.

“The Public Health Act requires that decisions with respect to public health orders must be made by the CMOH, or her statutorily-authorized delegate,” said the judge. She ruled that the final decisions implemented by Dr. Hinshaw’s orders were in fact made by the Alberta government led by then-premier Jason Kenney.

“While the CMOH made recommendations and implemented the decisions of the cabinet and committees through the impugned Orders, she deferred the final decision making to cabinet,” Ms. Romaine said.

Trend

Lawyer Barry Bussey, president of the First Freedoms Foundation, says although the court ruled that the Alberta public health orders were unlawful, “it doesn’t change the ultimate outcome we have been seeing across the country.”

“The courts defer to the decisions of government actors,” Mr. Bussey told The Epoch Times.

Constitutional lawyer Rob Kittredge also said Justice Romaine’s decision is a “thin victory on a technical point” for those challenging the restrictions.

He said the case continues the precedent that “restrictions on fundamental freedoms in Canada will be justified under the Charter whenever there’s a danger to the public.”

Pedestrians wearing masks walk through an empty downtown in Calgary on Dec. 9, 2020. Jeff McIntosh/The Canadian Press

Impact on Ongoing Challenges

Michael Alexander, a constitutional lawyer with Litigationworks, told The Epoch Times that while the court decision might not be clear to a layperson, the ruling means “that any orders made during COVID are null and void. They’re illegitimate.”

He said the ruling indicates that citizens who suffered harm as a result of these measures could now successfully sue the government for restitution.

“There are immense consequences of this ruling, even if it’s not a Charter win,” he said.

In a statement issued to The Epoch Times, Alberta’s Minister of Justice and Solicitor General Mickey Amery said that his department is still reviewing the decision, and won’t be commenting on the case at the moment.

“The King’s Bench decision on Ingram v Alberta (CMOH) was a very detailed decision, and we are reviewing it. As there is a 30-day appeal period, we are not able to comment further,” he said.

Civil Lawsuits

Lawyer Leighton Grey, who represented the churches in the case, alongside fellow Alberta lawyer Jeff Rath who represented the business owner, said the decision makes it clear that “what the government did was illegal, right from the beginning.”

He told The Epoch Times that this case is important because it’s the “first and only decision of its kind in Canada” arising out of COVID in which the courts have made it clear that “if governments exceed the limits of authority granted to them, the courts will declare the laws illegal or invalid.”

“That is a fundamental recognition of the rule of law, and that is what has been missing from Canadian jurisprudence for three years,” said Mr. Grey.

This decision tells government “your powers have limits,” said the lawyer. “This is the first time that government overreach has been checked.”

He said while Justice Romaine ruled that the violation of charter rights would have been valid, it’s irrelevant because “there’s no reason to consider the constitutionality of an illegal law.”

Mr. Grey also predicted that there will be further legal cases launched after the ruling, and potentially class-action lawsuits, that go after the Alberta government for civil liability due to lockdown harms, given that businesses were shut down, schools were closed, and pastors were wrongfully imprisoned.

“Every single one of these health orders, every one of these prosecutions is now void ... from the very start,” he said, noting that if the government were to proceed with any existing COVID cases, they would be wrongful prosecutions.

“The government had unprecedented power,“ Mr. Grey said. ”Deena Hinshaw had unprecedented power—more power than any person in the history of Alberta has ever had—and she exceeded it.”