A trio of families are taking the Alberta government to court over the chief medical officer of health’s (CMOH) decision to not require masks for children in schools, according to the court filing obtained by Global News.
The application for judicial review filed on Wednesday afternoon alleges Dr. Deena Hinshaw’s Sept. 3 decision declaring a mask mandate for all indoor settings except schools was in violation of children’s Charter right to equal protection, and singling out school-aged children from a provincial mask mandate is cruel and unusual treatment. The court filing also claims Hinshaw’s decision was “unreasonable, unfair and/or made in bad faith.”
The court filings allege improper delegation of decision making by Dr. Hinshaw when she said she delegated her public health authority to her proxy, but didn’t say who that was. The lawyer representing the families said there is no indication in the Public Health Act that the CMOH can delegate such powers.
The courts have yet to hear the application.
In an emailed statement, an Alberta Health spokesperson said he was unable to comment on any court proceeding.
“Our priority is always to protect the health and well-being of Albertans,” Tom McMillan said. “This includes recognizing and respecting the charter rights of all Albertans.”
Lawyer Orlagh O’Kelly said her clients hope the judicial review of the early September mask mandate would recognize the charter rights in the pandemic context.
“The main issue here is that we want to make sure that the rights of children and children with disabilities are being considered and there is a legal obligation to do that regardless of the nature of the emergency,” O’Kelly told Global News.
“And we believe that all the evidence in record that was before Dr. Hinshaw actually supported what is legally the best route is to recognize those rights of children and children with disabilities.”
The lack of clear reasoning to exclude schools from the early September mask mandate is part of the argument, according to O’Kelly.
“Every government action and state action is subject to judicial oversight and needs to be justified under administrative law principles in the eye of the individual who’s affected by it,” O’Kelly, who represents the families, told Global News.
“So in this case, we have those three individually-named, as pseudonyms, applicants who need to understand why it is that children have been exempt from this masking order that go to school, as opposed to any other public place.”
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The judicial challenge refers to section 15 of the Charter of Rights and Freedoms, which says everyone has the right to equal protection and benefit of the law, regardless of age, race, or ability.
“When you look a little bit closer, (the Sep. 3 mask mandate) can have a devastating impact on children with disabilities in particular,” O’Kelly said.
The stories of the three families outlined in the court filings lay out how the early September mask mandate affected them in different ways
One parent of five children who is immune-compromised has a nine-year-old child with a neuromuscular disorder and a feeding tube. That child attends a rural school for in-class learning this year because the parent has to work two jobs.
They were told by the superintendent they would only follow the advice of the CMOH, the court filings said. The filings allege the parent did not understand why schools were exempt from masking on Sep. 3 and has no visibility on COVID-19 in the school, because it refuses to report positive cases to parents or students.
O’Kelly said that student was entering Grade 4 with the understanding that COVID-19 measures would be similar to last year. A return to classes without a mask mandate left the family “very little” time to plan, she said.
“For a child like that, being effectively excluded from the class — in the classroom but (they) can’t interact with (their) teachers and only a couple of students will come to see (them) — so that was pretty heartbreaking for children like that,” O’Kelly said. “And there are many others like him or her who are in that situation.”
Another parent in a rural school district whose partner teaches at a high school and child attends says their school board trustees decided against a mask mandate, based on the CMOH’s Sep. 3 decision. Court documents say that child and partner are “being forced to choose between a risk to their health and education” because they fear backlash for wearing a mask.
The third parent whose child started attending an urban school at the end of August tested positive for COVID-19 on Sep. 3, court filings said. Both parents in the family have been double-vaccinated and are “careful with their children,” but a second child tested positive for the coronavirus. A mask mandate was put into that school on Sep. 2, when the first child was already isolating with symptoms, the court documents said.
The documented severity of the Delta variant on children and its highly-transmissible nature are heightened reasons for a mask mandate in schools, court documents said.
On Wednesday, the province announced a mask mandate for students in Grades 4 and up and for all staff and teachers.
O’Kelly said the new mask mandate addresses some of what the families were looking for from the courts, but added a judicial declaration of the rights of children and whether the previous mandate was unreasonable or not is needed.
The lawyer said the ongoing pandemic will likely require the CMOH to make more decisions that affect Albertans.
“This is going to happen again, unfortunately it doesn’t look like there’s any end in sight,” O’Kelly said. “A declaratory relief from the court is binding against everyone and so it would hopefully direct future action so that they consider and reasonably consider and constitutionally consider the rights of children and children with disabilities.”
Alberta Activist Collective is also part of the application, to represent the interests of all Albertans.