Alberta premier asks minister to see if appeal of school mask ruling is 'appropriate'

EDMONTON — Alberta's premier says she's directing her justice minister to defend the province's "full authority" after a court ruled rescinding mask mandates in schools earlier this year violated the law and was unreasonable.

Danielle Smith issued a statement saying she's told Tyler Shandro to see if an appeal of Thursday’s Court of King's Bench decision is "appropriate," adding the government "will not permit any further masking mandates of children" in schools.

A provincial labour group, and children whose parents said they faced greater risk of severe outcomes from COVID-19, launched a legal challenge of an order by the chief medical officer of health in February that lifted mask requirements in schools.

They also challenged a statement by Education Minister Adriana LaGrange saying school boards would not be allowed to impose their own mask requirements.

Justice Grant Dunlop said in a ruling Thursday that evidence showed Dr. Deena Hinshaw's public health order "merely implemented a decision of a committee of cabinet" and did not stem from the top doctor herself, which he said violated the Public Health Act.

Smith says in addition to looking for avenues to appeal, she's also asking Shandro, LaGrange and Health Minister Jason Copping to look for legislative or regulatory changes that could bolster the government's position on mask mandates and other health and education matters.

"The detrimental effects of masking on the mental health, development and education of children in classroom settings is well understood, and we must turn the page on what has been an extremely difficult time for children, along with their parents and teachers," Smith said Saturday in a news release.

Dunlop wrote the government framed the removal of the school mask mandates as a policy decision for elected officials, and Hinshaw’s order implemented that decision.

But he noted that unlike some other provinces, Alberta's Public Health Act makes it clear that such decisions during a public health emergency must come from a medical officer of health.

Dunlop pointed out that during a press conference on January 5, a month before the school mandates were lifted, Hinshaw supported masks in classrooms.

"At the press conference on February 10, 2022, when asked what had changed in the last month or so to make masking for children no longer necessary, Dr. Hinshaw answered: 'I would defer to Minister Copping to answer that question,'" Dunlop wrote.

"The fact that Dr. Hinshaw declined to explain why she was removing the school mask mandate when a month earlier she recommended that students in all grades wear masks, and the fact that she referred questions to the Minister of Health, who is a member of (Priority Implementation Cabinet Committee) supports the conclusion that the decision to remove the school mask mandate was PICC’s decision, not Dr. Hinshaw’s."

Dunlop also ruled that LaGrange's statement never actually prohibited school boards from imposing their own mask requirements, although he noted in the ruling that some school boards mistakenly believed it did.

"(While) Minister LaGrange’s Statement on its face appears to prohibit school boards from imposing mask mandates, it does not do so, because the Minister can only do that through a regulation, and the statement was not a regulation," Dunlop wrote.

Smith has announced she plans to replace Hinshaw in the province's top medical post.

Lawyers representing the government made the case that masks were detrimental for children's development, but Dunlop rejected that argument on the grounds that submissions to support the claim were unsworn.

He also rejected arguments that lifting the school mask mandate violated the Charter of Rights and Freedoms. He wrote that affidavits from the children's doctors were not sufficient to establish the children faced greater risks if they contracted COVID-19.

This report by The Canadian Press was first published Oct. 29, 2022.

Rob Drinkwater, The Canadian Press