Judge dismisses application for injunction against Alberta's COVID-19 rules

·3 min read

CALGARY — A judge rejected a request Monday from two Alberta churches and three individuals to temporarily suspend selected public-health rules to "save Christmas."

The measures limit Christmas celebrations to individual households, restrict weddings and funerals to 10 people and prohibit outdoor gatherings.

Alberta Premier Jason Kenney announced the stricter rules to try to bring down stubbornly high COVID-19 cases and to ease pressure on hospitals.

"When you were sworn in as a justice of this court you never contemplated being ... the justice that would have the power to save Christmas, and that's certainly what we're asking you to do today," lawyer Jeff Rath told Calgary Court of Queen's Bench Justice Anne Kirker.

Rath said there isn't any proof Canada is in the midst of a health pandemic. He also said Alberta's chief medical officer of health, Dr. Deena Hinshaw, isn't an expert on COVID-19, since the province doesn't know where 80 per cent of cases have come from.

"This is not polio. This is not smallpox. This is not the Spanish flu. Healthy people are not dying from COVID-19," he said.

"Government has not provided the evidence that these orders will prevent harm."

The judge said the case had some merit and wasn't vexatious. But she also said she wasn't sure there has been irreparable harm, so there wasn't enough to persuade her to temporarily suspend restrictions.

"The applicants have established with their evidence the benefit of allowing citizens of this province to gather and celebrate the holidays and to otherwise exercise unconstrained their religious freedoms," Kirker said.

"I hear and appreciate how difficult it is for the applicants and other members of the public, especially at this time of year, but I cannot find the public interest is served in granting this stay."

Kirker said Hinshaw has been empowered to make decisions involving the health of Albertans and her position needs to be given proper weight.

"I must assume the restrictions protect public health."

James Kitchen, a lawyer for the Justice Centre for Constitutional Freedoms, argued the restrictions violate the charter of rights and were imposed without consultation or review.

"Canada is probably the closest it has come to an authoritarian police state certainly since the advent of the charter," Kitchen told the court.

The rights and freedoms of Albertans to show affection and care for each other has disappeared, he added.

"Systematically dismantled over the last nine months, and not by a virus, but by the government overreach in reaction to the virus."

Nick Parker, who represented the Alberta government, said Hinshaw has the authority to take action to keep the public safe.

"What I would suggest we are seeing is democracy in action in the middle of the biggest health crisis in the history of this province. It is what law-making looks like when we are at the most critical point in that crisis," Parker said.

The court decision came as Alberta reported 1,240 new COVID-19 cases — an improvement from daily case numbers above 1,800 earlier this month.

Hinshaw told a news conference it's a positive trend, but the situation remains serious.

"Our new case numbers are still extremely high and our health care system remains under severe strain," she said.

"This week, we must redouble our efforts and celebrate this early trend downwards by continuing the actions that will eventually bring our hospitalizations and ICU numbers low enough to support access to the system for all health care needs."

There were 795 COVID-19 patients in Alberta hospitals, including 151 in intensive care. The province also recorded nine more deaths, bringing its total fatalities to 860.

This report by The Canadian Press was first published Dec. 21, 2020.

— With files from Lauren Krugel in Calgary

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Bill Graveland, The Canadian Press