The decision to remove mask mandates in Alberta schools was not consistent with public health advice and instead was made by government officials for political reasons, including "quelling protests" at the Coutts border crossing, lawyers argued in court on Wednesday.
The hearing, taking place in the Court of Queen's Bench, Alberta's superior court, is focused on the abrupt provincewide lifting of the school mask mandate on Feb. 8.
It's part of an application filed on behalf of the families of five immunocompromised children as well as the Alberta Federation of Labour (AFL).
Lawyers for the group argued Alberta Chief Medical Officer of Health Dr. Deena Hinshaw abdicated her authority to cabinet and failed to meet her obligation to protect medically vulnerable school children.
The children at the centre of this court case, say the applicants' legal team, suffered segregation, alienation and bullying as a result of having to stay home from school or, in other cases, because they were the only ones at their schools who wore masks.
Mandate lifted for purpose of 'quelling protests'
The application argues the sudden end of the masking mandate infringed on the charter rights of immunocompromised children who were forced to choose between their education and their health.
The lifting of the mandate was done for the "improper purpose" of "quelling protests," argued lawyer Orlagh O'Kelly, who cited the ongoing protests and blockades at the Coutts border crossing in late January and February.
The applicants told Justice Grant Dunlop they are not asking for the reinstatement of a provincewide mandate.
Instead, O'Kelly and co-counsel Sharon Roberts made final arguments Wednesday, asking the judge to make a declaration that it was not Hinshaw who made the decision and that, in the future, she cannot hand over power to cabinet.
Lawyers for the government will have the chance to make their final arguments on Thursday.
Government ordered to hand over docs
The same group was previously unsuccessful in its emergency application to allow school boards the right to enforce their own mask mandates. But Dunlop agreed the case could continue as a judicial review of both the policy and of how the decision to end the mandate was reached.
As part of that review, O'Kelly and Roberts sought additional information from the Alberta government, which the province refused to hand over until two separate court orders were handed down in June and again in July.
Only then did the government release documents previously protected by cabinet confidentiality, including a PowerPoint presentation and minutes from the cabinet committee meeting on Feb. 8, the day it announced its plans to lift public health measures.
The Alberta Health briefs revealed that while many factors can impact COVID transmission, school boards without mask mandates at the start of the 2021 school year had, on average, three times more outbreaks than those with masks.
Lifting of mask mandate expedited
The PowerPoint presentation, prepared by Hinshaw and presented by Health Minister Jason Copping, gave three options with steps within each for lifting restrictions.
The first would have most public health measures lifted in Step 1, allowing Alberta to "be a leader in entering the endemic space," while the third left the decision entirely up to the committee.
The documents show the committee selected Option 2, which, for the most part, aligns with the plan announced by Premier Jason Kenney later that day. But somewhere along the line, the plan for masking in schools changed.
In the PowerPoint, the lifting of the mask mandate in schools was the second option's second step and was to take place on March 1.
But the meeting minutes show the removal of masks in schools was moved up to Feb. 14. Education Minister Adriana LaGrange also revoked school board authority to set their own rules.
In response to the disclosure of the once-withheld documents, Steve Buick, press secretary for Health Minister Copping, said the decision was made to lift the school mask mandate "based on the best available evidence, and advice from Alberta Health and the chief medical officer of health."
"We stand by our decision to lift public health measures, including ending mandatory masking in schools. It was the right choice for kids, and it did not pose undue risk to our communities."