A University of Calgary law professor says a judge’s ruling to disclose Alberta Chief Medical Officer of Health (CMOH) Dr. Deena Hinshaw’s confidential cabinet discussions about COVID-19 restrictions will not affect the government’s right to cabinet confidentiality.
On Tuesday, Court of Queen’s Bench Justice Barbara Romaine ruled that a “strong countervailing public interest” exists regarding Hinshaw’s answers to three questions about her pandemic-related recommendations to cabinet.
The decision is part of a civil trial that started earlier this month after several churches and individuals in Alberta launched a constitutional challenge in December 2020. The group argued that the province’s public health orders at the beginning of the COVID-19 pandemic allegedly violated constitutional rights.
It comes after the Government of Alberta’s lawyers raised concerns about cabinet confidentiality at the end of cross-examination on April 7. One of the plaintiff’s lawyers, Jeffrey Rath, initially asked Hinshaw if the premier or his cabinet ever rejected her recommendations related to COVID-19 public health restrictions.
The government’s lawyers produced a certificate written by Energy Minister Sonya Savage (who was the acting justice minister at the time) that said Hinshaw participated in confidential, high-level discussions with Premier Jason Kenney and his cabinet about the province’s COVID-19 response.
Romaine then pulled Hinshaw aside to ask three questions privately, a move she said will help decide on the issue of cabinet confidentiality.
“This is an important case involving the constitutionality of CMOH orders that the plaintiffs allege infringed their Charter rights,” Romaine said in an oral decision on Tuesday.
“A determination of whether or not Cabinet directed Dr. Hinshaw to impose restrictions more rigorous than her recommendations or targeted more specifically on specific groups of citizens are necessary to ensure that the case can be adequately and fairly presented…”
Romaine also noted in her decision that the answers will not disclose cabinet deliberations or information that might jeopardize cabinet confidentiality, a right she said protects the process of democratic governance.
Shaun Fluker, a law professor at the University of Calgary, says Romaine’s ruling does not impinge on the Alberta government’s right to cabinet confidentiality.
He noted that Romaine weighed two issues in her decision: cabinet’s right to frank and open discussion about public policy and the need for transparency in the judicial system.
“I would expect cabinet ministers and the CMOH to continue to assert cabinet confidentiality,” Fluker said.
“That is a government convention in our system of government. Justice Romaine’s ruling doesn’t impinge on that at all.”
The questions are also narrow in scope, meaning it’s very specific to what happens when similar matters end up before the courts, Fluker said.
“There are a number of judicial review applications in relation to COVID-19 public health restrictions across the country. There are potential ramifications here,” Fluker said.
“But I think Justice Romaine has been careful to try and limit the scope of these questions … I would expect we may see some developments at the Court of Appeal as well.”
Hinshaw did not answer questions about Romaine’s questions or her decision during an unrelated press conference on Wednesday, saying the matter is before the courts.
Alberta government expected to appeal judge’s decision
The Government of Alberta is expected to appeal the decision. Nick Parker, a lawyer for the province, told Romaine on April 7 that the Crown counsel reserves the right to ask for additional time to get further instructions and file an urgent appeal due to the precedent-setting nature of the decision.
A timeline for the disclosure of Hinshaw’s answers and the Crown counsel’s appeal has not been set by the courts. No further information is available at this time.
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