A Calgary pastor who decided to open his church in the face of public health orders that required him to shutter services received a bit of reprieve in the courts.
He’s one of many who are seeing their pandemic-related transgressions forgiven on a “technicality.”
Tim Stephens of Fairview Baptist Church found out the charges levied against the church for multiple violations of the public health orders that were in place during the first years of the COVID-19 pandemic were withdrawn this week.
It was the last of seven tickets he was served with, most of which were either acquitted or withdrawn. But the final ticket had some hefty possible fines.
“The numbers that were floating around, you know, tens of thousands of dollars that our church might have to pay. And so to have that finally withdrawn, it’s a vindication for us,” Stephens told Global News.
“It’s a bit bittersweet because while the health orders were deemed illegal, they were really illegal based on a technicality.”
That technicality came from a recent decision made by Court of King’s Bench Justice Barbara Romaine in her July 31 decision on the Ingram v Alberta case.
Romaine found that the public health orders were made by elected officials, not the chief medical officer of health, which ran counter to Alberta’s Public Health Act.
According to transcripts, then-CMOH Dr. Deena Hinshaw told the court “elected officials make the decision and then the instrument that was used because of the nature of the emergency we were facing was CMOH orders, implemented at the direction of elected officials.”
Hinshaw also said “the orders were the legal instrument to implement the policy decisions of cabinet.”
Lorian Hardcastle, a University of Calgary associate professor in health law, said the Act is explicit on who should be making decisions on public health orders.
“The Public Health Act is very clear that the decision making power rests within the chief medical officer of health’s hands. And so (Hinshaw) delegating that power to government was unsurprisingly found by the courts to be problematic,” Hardcastle said.
By the time Romaine’s decision was filed, all of the public health orders had been rescinded by the Alberta government.
In the month since, the Alberta Crown Prosecution Service reviewed the decision and found “there is no longer a reasonable likelihood of conviction in relation to Public Health Act charges involving the contravention of the disputed orders from the Chief Medical Officer of Health,” they said in a statement.
On Aug. 1, there were 14 tickets that remained before the courts.
Of the 745 prosecutions that have made their way through the court system, 562 were stayed, withdrawn or quashed, eight were dismissed or found not guilty, and 176 resulted in convictions.
Charges against Ty Northcott, whose family hosted a “No More Lockdowns Rodeo Rally” near Bowden, Alta., in May 2021, have been stayed, as well as charges against Edmonton-based GraceLife Church and pastor James Coates.
Hardcastle noted the provincial government under former premier Jason Kenney made amendments to the Public Health Act since the onset of the pandemic, but didn’t address who had the authority to make the orders.
“If (elected officials) wanted to be the decision makers, they could have amended the Act to make themselves the decision makers,” she said.
The health law professor said having appropriate legal structures in place is part of pandemic preparedness, work that should be done ahead of the next public health emergency.
“I would hope that that this case sends the message to government that it’s time to revisit the Public Health Act and to think about what do they want the role of a chief medical officer of health to be, both generally and then in a public health emergency, and make sure that the act reflects what they want that role to be,” Hardcastle said.
— with files from The Canadian Press