An attempt to have some of the Alberta government’s COVID-19 restrictions temporarily suspended was rejected by a judge in Calgary on Monday afternoon.
The court challenge — presented by Rath & Company, Barristers and Solicitors, retained by Freedom Corp., and the Justice for Constitutional Freedom — had been seeking a temporary suspension of some of the health measures in what it called an attempt to “save Christmas.”
Justice Anne Kirker dismissed the group’s application for interlocutory injunction to temporarily suspend some public health measures.
“I wasn’t satisfied that the balance of inconvenience favours granting an interlocutory injunction,” she said.
Alberta is currently under a second state of public health emergency. The most recent set of public health measures restrict both indoor and outdoor social gatherings and all dine-in services at restaurants and bars. A 15-per-cent capacity limit has also been imposed on retail services.
The group seeking to have some restrictions suspended alleged the restrictions are “incarcerating 4.5-million Albertans in their homes for Christmas,” without evidence to justify the orders.
The group accused the government of “bankrupting businesses and stripping citizens of Alberta of most of their rights under the Alberta Bill of Rights and the Charter of Rights and Freedoms” with “arbitrary” health orders.
The new health orders were imposed in response to days of ever-increasing COVID-19 infections, hospitalizations, ICU admissions and deaths in the province, with Premier Jason Kenney saying it was imperative the province protect Albertans as well as the health-care system.
“If stronger action is not taken now, we know that hundreds, or potentially thousands more Albertans could die,” Kenney said on Dec. 8.
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In court Monday, Justice Centre for Constitutional Freedoms lawyer James Kitchen submitted that the affidavit provided by Dr. Deena Hinshaw was hypothetical and speculative.
He also argued that taking Christmas away from Albertans will have devastating effects on the mental health of citizens that would cause “Irreparable harm not being able to celebrate. Christmas will be a traumatic memory… particularly for a grandparent where this may be their last Christmas.”
Calgary lawyer Jeffrey Rath, who also acted as a lawyer for one of the respondents, presented to Kirker that Christmas “has been taken away from the government… without any proof that (Christmas) would in fact create the harm they’re alleging.”
Lawyer Nick Parker represented Alberta Justice and the Solicitor General, and had a shorter oral submission.
Parker said the “suggestion that we’re not in a pandemic is an alternative version of the facts” and added that it’s important to “not obfuscate the message and the importance of following the orders.”
In a news release issued late Monday afternoon, the Justice Centre for Constitutional Freedoms said it is reviewing Kirker’s ruling and said the full hearing for its application is expected to take place sometime next year.
Kirker said “the applicants have established with their evidence the benefit of allowing citizens of this province to gather and celebrate the holidays and to otherwise exercise unconstrained their religious freedoms.”
“I hear and appreciate how difficult it is for the applicants and other members of the public, especially at this time of year, but I cannot find the public interest is served in granting this stay,” she said.
“I must assume the restrictions protect public health.”
The government has repeatedly said evidence points to social gatherings as the largest source of transmission in the province.
Alberta’s test positivity rate has also grown significantly in the past two months, hovering around eight per cent in recent weeks, compared to about 1.34 per cent in October.
“It is clear on the evidence before the court that the only tools being utilized by the chief medical officer of health to manage the COVID-19 outbreak in Alberta are extreme restrictions of human rights, while she crosses her fingers for the speedy delivery of a vaccine,” lawyer Jeffrey R. W. Rath said in a news release about the injunction.
As part of the challenge, the lawyers presented evidence to the court that suggests American treatments that have significantly reduced COVID-19’s mortality rate have been “ignored by Alberta Health Services.”
“It now falls to the courts to decide if one unelected doctor can prevent millions of healthy Albertans — who are at almost no risk from COVID-19 — from deciding for themselves whether to celebrate Christmas with their families in their own homes,” states Justice Centre lawyer James Kitchen.
Hinshaw has explained several times at her briefings that she makes recommendations based on an analysis of numbers and the rate of spread of COVID-19, but it is up to the government to make a decision on what public health measures to bring in.
AHS has been expanding hospital and ICU capacity across the province for weeks in response to the increasing admissions and severe cases of the illness.
The government has maintained it has the capacity and staffing to care for any Albertans who need to be treated for COVID-19 in hospital.
In an emailed statement Monday, Alberta Health spokesperson Steve Buick said the government acknowledges the restrictions “have a heavy cost,” adding they “should be a last resort, not a first choice.”
“We continue to implement restrictions in the most targeted way possible,” Buick said.
“We’re committed to a balanced approach aimed at saving lives and livelihoods, and maintaining capacity in our health system.”
Buick said Alberta has a mortality rate that’s half the national average, which comes as a result of “an approach that is generally less restrictive than the other large provinces and many other countries.”
–With files from Jenna Freeman and Phil Heidenreich, Global News, and Bill Graveland, The Canadian Press
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