Court began at 9:30 AM with Mr. Grey first asking if documents that were sent over to the court, referred to in yesterday’s proceedings, particularly a report from Alberta Health Services, were received by the court. The clerk reported that they had not received them. Mr. Parker indicated that his office had received them. The court would continue to search for them.
Mr. Grey referred to where court had left off the day before, with his questioning about page 34 of Dr. Hinshaw’s July 2021 affidavit; he asked about a section that referred the role of conspiracy theories and naysayers and the power of social media” to spread misinformation and creating a group of people who “don’t believe Covid risk is real.” Mr. Grey suggested that this was a fairly strong statement about misinformation. Did she agree? Dr. Hinshaw stated that misinformation is a serious concern.
Mr. Grey asked if this was a concern from the very outset? Dr. Hinshaw didn’t understand the question. So, Mr. Grey informed the witness that his office had made transcriptions of Dr. Hinshaw’s press conferences, and he brought up on screen the transcription for February 14, (2020).
Mr. Grey read, “Another thing you can do, is stay vigilant about misinformation which can spread fear and division.” This, he noted, was a month before the public health emergency was declared in Alberta. From this, he concluded that the government was very concerned about the control of information very early on. Dr. Hinshaw replied that they had witnessed incidents of people of Asian decent being targeted because of what they looked like, and so they wanted to communicate what was known and not known about the virus and direct Albertans to “reliable sources” of information.
Mr. Grey said he interpreted “reliable” to mean that Dr. Hinshaw was referring to information that came from AHS or the government. Dr. Hinshaw acknowledged that this was one form and other sources would be peer reviewed articles, academic websites, and so on.
Mr. Grey then went to a statement of Dr. Hinshaw’s from February 21, 2020, quoting a portion that urged citizens to refer to Alberta government websites, and he suggested that here again she was asking people to refer to AHS information and ignore other sources which the government considered incorrect. He said this was an attempt to control the narrative. Dr. Hinshaw did not address that characterization, but stated that the government information was a “clearly reliable” source.
Referring to a statement by Dr. Hinshaw about “conspiracy theories, Mr. Grey sought clarification on the meaning: would, he asked, a statement that Covid was not a serious health threat to Albertans be considered a conspiracy theory? Dr. Hinshaw said no. He also asked about her reference to “naysayers” and “non-believers,” the latter of which seemed “incongruous when speaking about scientific matters.” He asked what she meant by that. Dr. Hinshaw said that it is known that people are influenced by the world around them and their beliefs, so this term in this context referred to people whose beliefs would cause them to act in a way that put their communities at risk. Mr. Grey said the goal seems to be to shape behavior to get people to comply with government orders. Dr. Hinshaw returned to an answer she had used numerous times, namely that the goal was to inform people and once voluntary measures failed, then mandatory measures were put in place to decrease the volume of severe outcomes.
Mr. Grey stated there was never a scientific consensus regarding Covid, and that there were many eminent scientists who disagreed with the Alberta government’s narrative. So there never was a consensus to support the idea that someone was a naysayer. Dr. Hinshaw disagreed and referred to a “full body of evidence” and that the majority of experts would conclude that Covid posed “a serious threat to populations as a whole.” That some minority disagreed “did not change the fact that a majority of scientists agreed that Covid 19 was an extraordinary threat.”
Mr. Grey then asked if she agreed that there was no consensus on the efficacy of NPIs. Dr. Hinshaw disagreed. So, in effect, Mr. Grey concluded, that what Dr. Hinshaw was saying in the statement, was that everyone who disagreed with the government’s position on Covid and NPIs, including doctors from schools like Harvard and Stanford, was a “conspiracy theorist, naysayer and non-believer.” Dr. Hinshaw disagreed with that assessment but did not elaborate.
Then Mr. Grey quoted Dr. Hinshaw’s affidavit that read, “Societal context plays a role. A disease like Covid where people need to change behavior and can therefore be inconvenienced, may spur deep-seated beliefs, cultural viewpoints and values like personal freedom, that oppose behaviour change.” Mr. Grey said this appears to say that the loss of personal freedom is merely “an inconvenience.” He asked if this is what she meant. Dr. Hinshaw said no, and she meant that behaviour change is inconvenient, and also that people hold different values, so would “weigh things differently.”
But Mr. Grey said this still means that the intent was to alter people’s behaviour so that they didn’t value personal freedom, and so would follow government mandates.
She said it wasn’t intended to change peoples’ values, but to identify factors that influence peoples choices. Pressing on, Mr. Grey said this statement suggests that personal freedom is less important than behavioral controls put in place to stop the spread. Dr. Hinshaw said the attempt was made to preserve personal choice and it was only when these attempts failed, increasing the threat of population spread, that mandates were put in place. She stated that personal freedom was an important value, and was considered throughout the government response. Mr. Grey reminded her that she had testified that she understood that many of her health measures violated constitutionally recognized freedoms.
Dr. Hinshaw replied that this was the last resort. Yet Mr. Grey said this supported his assertion that the government believed that dealing with Covid was more important than individual freedoms.
Mr. Grey said though that there didn’t seem to be a lot of data to support her assertion that the NPIs were effective. Dr. Hinshaw disagreed and said there was a lot of data supporting this. So, Mr. Grey asked her to provide a study commissioned by Alberta that showed NPIs reduced death in Alberta.
Mr. Parker objected that this had been asked and answered yesterday. Mr. Grey replied that the witness had stated an opinion, and he was merely asking her to point to a study or scientific data that supported her opinion. Justice Romaine said that Mr. Grey had already questioned Dr. Hinshaw about evidence to back up her opinion yesterday. However, she noted that the question was limited because it asked about a study produced in Alberta, so she allowed the question.
When the topic turned to lockdown harms, Mr. Grey produced a study from the department of economics at Simon Fraser University in April 2021. Mr. Parker objected that this report was not in the evidence. Dr. Hinshaw said she was unfamiliar with this. After a long discussion about the admissability of the study, Mr. Grey indicated that he only intended to ask a few questions about the abstract, it was finally agreed that Mr. Grey could proceed.
Mr. Grey noted that the abstract stated that lockdown policies could go down as one of the greatest peacetime failures in Canadian history. It said that lockdown harms vastly outweighed benefits in a cost-benefit analysis. Mr. Grey asked Dr. Hinshaw to respond. Dr. Hinshaw said this appears to be the opinion of one person. Further, she said the conclusions would be based on assumptions made in the analysis which she hadn’t read.
But Mr. Grey asked then if she agreed that lockdown measures caused harms, and Dr. Hinshaw said that she had agreed to this many times, but that it was about “seeking the balance.”
Mr. Grey referred to the 96% of those who contracted Covid facing no risk of severe outcomes. He said that the lockdowns affected all Albertans, most adversely with regard to liberty, and when a cost-benefit analysis is done, he asked if Dr. Hinshaw would agree that the harms of the lockdowns outweigh the benefits. Dr. Hinshaw then stated her position, again, that it was important to factor in all aspects of impact of Covid, not just the four percent who suffered hospitalization, ICU admissions or death, like limited access to healthcare for other conditions and the implications of Long Covid.
When the topic turned to PCR testing, Mr. Grey PCR asked if Dr. Hinshaw was familiar with the testimony Dr. Bullard in the Manitoba lockdown case. Dr. Hinshaw said that she was not. Mr. Grey then gave a brief summary of that evidence, stating that Dr. Bullard has stated on cross examination that PCR testing “can be incorrect up to 56% of the time.” He asked if Dr. Hinshaw was aware of this during the time she was issuing the orders being challenged.
Dr. Hinshaw stated she would need to understand what was meant by “incorrect.” One way to read the test would be whether it detected a virus that was present, as opposed to a positive result detecting someone who was infectious to others. These, she said, are different and she did not know which Dr. Bullard was referring to. She was aware of the challenges of PCR tests, and Alberta’s policies, as stated in her affidavit, reflected these.
Mr. Grey quoted from the affidavit, and confirmed the section Dr. Hinshaw was referencing, but he noted in the following paragraph, she stated that for the reasons stated above, in the early pandemic, all positive results were treated as positive. She said she couldn’t recall the number of false positives, but she was certain that the numbers were “exceedingly small.”
After the morning break, Mr. Grey continued, referring to page 41, paragraph 138 and quoted a section about rationing acute care. He noted that the sentences all contained unspecific predicates, talking about what could happen if, and what may happen. Dr. Hinshaw stated that the intent was to describe what would have happened if NPIs had not be introduced. Mr. Grey stated that these all appeared to be hypotheticals, not describing what would have happened, but what could have happened.
Dr. Hinshaw replied that when dealing with counterfactuals, it is always good to be cautious. Though she used the events in other jurisdictions as her guide for making the statements, she still believed it was important to use “some appropriate caveats in the language.” Mr. Grey stated that this was opinion, an authoritative opinion that all the interventions worked, but that it was still hypothetical, a subjective opinion. Did she agree? Dr. Hinshaw said that her assertions were based on the evidence that of what their models had forecast. She said there is mathematical evidence to support her assertions based on Alberta’s experience in waves 1 and 2.
Mr. Grey said that Dr. Hinshaw had stated they were continually learning about Covid, and that one of the things that was learned by the third wave in May of 2021 was that it occurred in waves, with a rise in cases, followed by a peak that then it crashed. Dr. Hinshaw said this was true of any infectious disease as it moved through a population. Mr. Grey said that she had testified that the fall in wave was due to NPIs, and was it was possible what was happening in Alberta was that we were merely following the natural trajectory of the virus? Dr. Hinshaw disagreed, saying she didn’t believe the available evidence would support this theory.
Grey moved on to page 42 of the affidavit,” Can locations be opened safely?” which he characterized as explaining why some places should remain open while others are closed. He took issue with Dr. Hinshaw’s statement, and testimony, that at no time where churches closed in Alberta. Mr. Parker objected on the basis of relevance. Mr. Grey noted that there were in fact church closures. Justice Romaine then asked if Mr. Grey was suggesting that the fact that there were church closures in Alberta due to non-compliance, then this would “impeach that sentence” in the affidavit. Mr. Grey said that he wanted to point out there had been church closures and then ask Dr. Hinshaw if she wished to modify her statement. The Justice allowed the question.
Mr. Grey suggested to Dr. Hinshaw that it was more accurate to state that “in person worship has never been prohibited pursuant to any of her CMOH orders that are impugned in the current case.” Dr. Hinshaw agreed with this.
Mr. Grey pointed to section in the affidavit where Dr. Hinshaw stated that it was always the policy of Alberta to use the “least restrictive measures required to limit the spread of the virus” to reduce overall mortality and at the same time minimize the harm to society. Mr. Grey asked if she acknowledged that the NPIs had caused significant harm to society.
Dr. Hinshaw said she had acknowledged that multiple times, both in public statements and here in testimony, but that the intention was to “outline the balance that is necessary” because Covid poses significant harms to society as well.
Mr. Grey then examined some of the “least restrictive measures,” and referred to Dr. Hinshaw affidavit where she described measures put in place in May of 2021: outside gatherings limited to 5, indoor fitness closed, no more that 10 to attend funerals. At that point Justice Romaine intervened, asking Mr. Grey if his point in asking this series of questions was to simply verify what was in the affidavit, and suggested that he could speed things along by asking a general question. Mr. Grey stated that he believed it was important to put these things into the court record, but he said he would rephrase the question.
So, he referred to the list of restrictions and asked if these were very restrictive on liberty. Dr. Hinshaw agreed. Mr. Grey stated there were prison inmates who would not have been subjected to such harsh restrictions. So how, he asked, could Dr. Hinshaw say that the province used the least restrictive measures possible. Mr. Parker objected that this was argumentative. Mr. Grey countered that he was not arguing but cross examining, and the question was, how could Dr. Hinshaw rationalize the two sections of her affidavit. Justice Romaine allowed the question, though she did agree with Mr. Parker that Mr. Grey was editorializing.
Dr. Hinshaw answered by saying the same course was followed in the 3rd wave as those in the 2nd. Voluntary or less restrictive measures were at first tried, and when these failed to stop the spread and they faced additional impact to the acute care system, “additional measures were employed.”
Mr. Grey then referred to page 56, paragraph 186, of the affidavit where restrictions were justified in December “heading into winter” when there were many religious holidays and social gatherings like Christmas and Chanukah. He asked if this was fundamentally discriminatory? Dr. Hinshaw said she didn’t think so. Mr. Parker objected that Mr. Grey was asking for a legal interpretation of Section 15 of the Charter. Justice Romaine agreed, and so Mr. Grey rephrased the question by stating that certain people seemed to be targeted here, did she not agree? Dr. Hinshaw replied this was intended to outline the fact that there were many gatherings in December, and it is known that when people gather indoors there is a greater risk of infection. So, it is a simple statement of fact, she said.
What consideration was given, Mr. Grey asked, to social and cultural impacts of restricting Christmas and Chanukah at that time, or was it only a simple matter of looking at health concerns? Dr. Hinshaw said that for every NPI put in place, there was consideration of the impacts, including the impact on the acute care system and the ability of people to access care.
Mr. Grey then referred to page 58 of the affidavit, a section about indoor mask restrictions. He noted that the fines imposed ranged from $1,000 up to $100,000. He characterized a $100,000 fine as “very heavy handed” and asked if this could be considered “least restrictive.” Dr. Hinshaw said the size of the fines was in relation to the “significance of the threat” to the population. Mr. Grey suggested this was an attempt to intimidate people to comply. Dr. Hinshaw stated the penalties were “consistent” with the harms caused by not following a mandatory requirement.
Justice Romaine called the lunch break to 1:30 PM. But just before the break Mr. Parker noted that court was now halfway through the time allotted for cross examination of Dr. Hinshaw, and he asked that Mr. Grey and Mr. Rath could give an estimate of how much longer they were going to take. Mr. Rath responded that it will take as long as it takes and reminded the court he had said the day before that the court would need to revisit the question of time on Wednesday afternoon. Justice Romaine asked if they could answer Mr. Parker’s question. Mr. Grey asked for time to consider it and reply after the break after the lunch break, called at 12:30 PM.
Court reconvened at 1:37, and Mr. Grey said he estimated he would finish with the witness Wednesday morning. Justice Romaine then asked Dr. Hinshaw if she would be available Thursday. Dr. Hinshaw replied she would need to reschedule some appointments, and asked if she could give an answer on Wednesday morning. Justice Romaine accepted this, and then asked both parties if oral arguments could then continue into the following week, since the trial had been scheduled to end on Friday. This, all agreed, was possible.
Mr. Grey moved on to refer to Dr. Hinshaw’s affidavit of December 18, 2020. He quoted Dr. Hinshaw’s statement, paragraph 9, where she said there were no “drug therapies to cure Covid 19 or prevent the spread of SARS CoV2.” Mr. Grey asked if ivermectin and hydroxychloroquine were effective in treating Covid. Dr. Hinshaw said that at the beginning of the pandemic, hydroxychloroquine showed some promise in small trials, and in fact Alberta had conducted a clinical trial, but unfortunately the result of trials around the world showed it did not benefit those with Covid and that there were more harms from side effects. Ivermectin was similar, she said. There were claims from smaller trials that ivermectin could treat Covid. Alberta was relying on advice of their scientific advisory group which examined all the summary evidence from various trials and there were no randomized controlled trials that showed a benefit and, she said there were significant harms caused “by the utilization of ivermectin.” She said that Health Canada authorized medications, and Colleges of Physicians and Surgeons regulated which medications could be used off-label.
She noted that therapeutic recommendations do not come from her office.
Mr. Grey turned to asymptomatic spread, noting that the risk of this is very low and that Dr. Bhattacharya had testified that it could be as low as 0.7%. He asked if Dr. Hinshaw agreed that the risk was low. Dr. Hinshaw referred to an appendix in her affidavit, a report by the scientific advisory group, where they concluded that it is hard to evaluate asymptomatic or pre-symptomatic, or mild symptomatic spread. They do say that pre-symptomatic is easier to identify than asymptomatic, but they say the preponderance of evidence shows an asymptomatic spread of 15-20%.
On the topic of Alberta’s Covid 19 public health measures generally, Mr. Grey ask if the province ever contemplated simply providing information to allow people to make their own decisions instead of applying restrictions on how people interact. Dr. Hinshaw said this was the approach after the 1st wave through to October of 2020.
But isn’t there an assumption here, Mr. Grey asked, that the increase in the spread was due to people failing to comply with the voluntary measure? Dr. Hinshaw replied that an increase in interactions between people would increase the chance of transmission, and so the intent was to limit those interactions. When the mandatory measures were put in place, she said, this was when they started to see “our curve shift.”
Mr. Grey stated we know that other jurisdictions like Florida, after initially bringing in lockdowns, went in a different direction; they pivoted to providing health information, like Alberta, but didn’t go back restrictions. And they had the roughly the same results as Alberta. He asked, does this does not show that NPIs are not necessarily effective?
Mr. Parker objected that this was argumentative. Justice Romaine asked Mr. Grey to restate the question that he wants the witness to answer, and then she will rule on Mr. Parkers objection.
Mr. Grey asked if Dr. Hinshaw would acknowledge that Alberta had the option to follow another path when dealing with Covid, one less restrictive of liberties? Dr. Hinshaw said that to protect the health care system, not only from being overwhelmed with Covid patients, but with other conditions as well, she believe there was no other option than the path Alberta followed. She cautioned that when making comparisons like these, you had to keep in mind that the U.S. has a much higher acute care capacity. She also noted that at one point Florida had a death rate from Covid twice that of Alberta, though she wasn’t aware of recent statistics.
Mr. Grey had informed Dr. Hinshaw that he had her press conferences transcribed, and these were included in material he provided to the court the day before. Mr. Parker asked if these were going to marked as exhibits. Mr. Grey said no, that he simply intended to ask questions about these. Madame Justice said these needed to be marked for the record.
Mr. Grey referred to her public statement of March 6, 2020, where Dr. Hinshaw announced Alberta’s first Covid case: “I want to remind Albertans that despite this case, the risk of catching the virus is considered low in our province.” He asked why she said this. Dr. Hinshaw said they had become aware of travel related cases, but they did not have evidence that Covid was circulating in Alberta.
Then Mr. Grey quoted a sentence: “We have been preparing for this…” since the emergence of Covid in January, and we have “proven processes and well-trained teams to protect Albertans.” Mr. Grey asked her to expand on this and explain what this meant. Dr, Hinshaw said Alberta had activated its pandemic plan which was written with influenza in mind, but much of this could be applied to Covid 19. She said they were using the lessons learned from the pandemic in 2009.
They were preparing contact tracing teams. At that time, she said, based on what they had observed in other jurisdictions, they felt Alberta was prepared to deal with Covid using these “particular frameworks and foundations.”
Moving on to Dr. Hinshaw’s statement three day later, March 9, 2020, where she announced three new cases in Alberta, Mr. Grey focused on quote where Dr. Hinshaw said Albertans need to “start thinking about our new normal over the coming months.” So, with only seven cases in Alberta, Mr. Grey said, you were already referring to a new normal. He asked what she meant, at that time, by this. Dr, Hinshaw said she was referring to what was being seen in other jurisdictions around the world. When China first identified the virus, 1 in 5 diagnosed required hospitalization, she stated. They were noticing the disease was behaving differently from other respiratory viruses seen before. So certain behaviours would have to change, such as going to work with a mild cold, which formerly was considered a sign of dedication. Mr. Grey quoted a sentence where she spoke about greeting each other with elbow bumps instead of handshakes, and observed that this was the beginning of the government’s attempt at behaviour modification. Dr. Hinshaw said some of what she referred to came from public education campaigns in 2009 which spoke about “respiratory etiquette,” frequent handwashing, coughing into one’s elbow, etc.
Mr. Grey noted that in this press conference, Dr. Hinshaw stated that “with a vaccine not available for a year or more,” Albertans needed to protect each other. He asked if at that time was there already discussion of a vaccine or was she just speaking theoretically? Dr. Hinshaw said with influenza there is an established process for making a vaccine, so the pandemic response does include plans for a vaccine rollout. DNA sequencing on SARS-Cov2 had already begun because of the impact the disease was already having around the world. It was common knowledge at that time that research had begun for a vaccine, she said.
Then Mr. Grey moved over to the press conference of March 11, 2020, where Dr. Hinshaw asked Albertans to do their part to stop the spread of rumours and speculation. He asked what she was referring to in this request. Dr. Hinshaw said it was hard for her to remember this specific day over two years ago, and give specific examples. She said over the course of the pandemic there had been rumours spread on social media about treatments, etc. which were not based on reliable information. She said she could not specify what she was thinking about in March of 2020.
As Mr. Grey started to turn to the press conference of March 12, 2020, Mr. Parker interrupted not with an objection, but with a question about the naming of exhibits. He said that Dr. Hinshaw had not been asked if she can confirm the authenticity of these transcriptions, and there were a lot of them, 776 pages from her press conferences. Something this size, he said, he would have expected to be filed with an affidavit stating what had been done, for purposes of authentication.
Justice Romaine said she did not know if Dr. Hinshaw had a copy of all the transcriptions. She noted these were not official Government of Alberta documents, but looked like about 500 pages someone had prepared for the cross examination. Mr. Grey confirmed this, saying these were provided to Mr. Parker and the court. He said he had made the assumption that because these were Dr. Hinshaw’s words that she would acknowledge them. Mr. Grey said he did not intend to ask questions about all of them and had no objection to selecting the ones he intended to ask about and having those marked for identification. Mr. Parker, after noting again that there were 776 pages, asked how many documents would be selected and Mr. Grey estimated between 40 and 50.
In order to facilitate this selection and preparation, it was agreed that Mr. Grey would suspend his cross exam until the next morning, and for the time remaining today, Mr. Rath would begin his portion of the cross exam. At this point, Madame Justice called for a 20 minute break in order to give time for Mr. Rath to prepare.
Following the break, Mr. Rath began by referring to page 7 paragraph 22 of Dr. Hinshaw’s affidavit. This is where she referred to her powers under Section 29 of the Public Health Act. He said she seemed to indicate that the powers are “extremely broad” and that Section 29, 2-B-1 gives her the power to use whatever steps she believes are necessary to suppress Covid 19. Dr. Hinshaw clarified that this portion of her affidavit covered the powers of the public health officer generally, and just to be clear this about all the legal powers that have been given to every public health officer, and about how those powers relate to communicable diseases generally.
Mr. Rath characterized these as “almost omnipotent powers” and asked if she agreed. Mr. Parker objected that this was argumentative.
Justice Romaine allowed the question on the basis that she was certain Dr. Hinshaw understood the implication of “omnipotent powers.”
Dr. Hinshaw said it confers broad powers on public officers of health in the context of communicable diseases and public health emergencies.
Mr. Rath asked if this included the powers to shut down businesses? Mr. Parker objected saying Mr. Rath was asking for a legal interpretation. Mr. Rath responded that he was just trying to clarify what powers Dr. Hinshaw had. She had issued orders shutting down businesses, so he wanted to know under what section she was empowered to do so.
Justice Romaine upheld the objection on the basis that Mr. Rath was asking for a legal opinion.
Mr. Rath said that it is stated in the affidavit what her powers are, and he was just trying to understand what the limits of her power are, if any. Dr. Hinshaw was shutting down businesses, and he wanted to know if she had been doing that under the authority of Section 29. Justice Romaine said she had issued her ruling, and asked if Mr. Rath could ask a question that didn’t require a legal conclusion.
So, Mr. Rath asked if all of Dr. Hinshaw’s orders were issued under Section 29. Dr. Hinshaw said yes. Mr. Rath then asked if that section gives her the authority to bankrupt businesses in Alberta.
Mr. Parker objected that this is again asking for a legal interpretation. Mr. Rath withdrew the question and said he would rephrase. He asked if Dr. Hinshaw was aware that her orders had resulted in bankrupting several businesses in Alberta. Dr. Hinshaw said she had always been aware of negative impacts of her orders put in place to protect the health care system and minimize the negative outcomes of Covid 19. She has, throughout the pandemic, she said, acknowledged the negative impacts on Albertans. She has always tried to use the least intrusive means and tried to balance the harms of the disease with the harms caused by the NPIs.
But Mr. Rath said he had asked specifically whether she was aware of any business bankruptcies caused by her orders.
Mr. Parker objected that this was asked and answered.
Mr. Rath responded by saying his question was very specific, and that Dr. Hinshaw provided “one of her broad, general answers” that did not answer the specific question. Mr. Rath contended that Albertans have a right to know “the degree of knowledge” she has about the degree of harm they have suffered caused by her orders. Justice Romaine ruled that Dr. Hinshaw had answered the question.
Mr. Rath then turned to where Dr. Hinshaw stated that the suicide rate in 2020 was 5% lower than than the previous five-year average. He asked her if she had the suicide data for 2021. She said she didn’t have that data in front of her. So, he asked if, to the best of her recollection, whether the suicide rate was higher than in 2020. Dr. Hinshaw said she did not want to speculate. He then asked if she included the 2020 suicide rate in her affidavit to suggest that her orders did not cause any suicides.
Mr. Parker objected to this on the basis that the question asked why certain evidence was included, which as he understood it, was not allowed. Questions eliciting a factual response were allowed, but you were not allowed to ask why a person put certain evidence in their affidavit. This is a question, he said, about legal strategy.
Justice Romaine said she would allow the question, because she understood it to be, did you mean to suggest that no suicides occurred because of the orders.
Dr. Hinshaw said this was not her intent. Mr. Rath then asked if she was aware of any suicides caused by her orders. Dr. Hinshaw said it was difficult to know the specific cause of any one suicide, so she was not able to give an answer. Mr. Rath then asked if she was aware of any suicides that were “economically driven” resulting from her health orders. Dr. Hinshaw said she has not seen an analysis of any suicide data for 2020, so she was unable to comment on the reasons for the suicides in the report. So Mr. Rath then asked if suicides were something she was concerned with when issuing orders. Dr. Hinshaw said she has always been concerned with all outcomes on all health issues for the people of the province, and included in that are mental health issues. So Mr. Rath asked her to explain how this concern was included in her orders. Dr. Hinshaw explained once again how they had used a minimal approach in the second wave for as long as possible, until it could not be sustained. Supports were put in place to try to mitigate some of the negative consequences of the orders.
Mr. Rath then presented an AHS document about suicides to the court that he said he had intended to provide the court with that evening for consideration tomorrow, but since the circumstances have changed, he asked leave to ask questions about it now. Justice Romaine allowed it. Mr. Rath asked if Dr. Hinshaw agreed about the statistic presented that 45% of all emergency department admissions for suicide attempts were for adults between the ages of 20 to 39 years. Dr. Hinshaw said she wasn’t sure if the data point was for the timeframe in question in the hearing. Mr. Rath then showed it was produced in 2021, retrieved in August. Dr. Hinshaw said she believed this would accurate as to what they had in their “dashboard” though she couldn’t comment on their methodology.
Mr. Rath asked if the age group referenced had a low risk for Covid. Dr. Hinshaw agreed though qualified it as low risk for those who did not have chronic conditions. So, Mr. Rath went on to ask is it not possible that Dr. Hindshaw’s orders killed more people in that age group than Covid 19. But Dr. Hinshaw said it would require a much deeper analysis of the causes of suicides to draw any conclusions like that.
Mr. Rath then restated the question, and Mr. Parker objected that this had been asked and answered. Mr. Rath countered he had not heard her actually answer. Justice Romaine said she wasn’t sure if it was a fair question because it assumed that suicides had been caused by the health orders, and that fact had not been produced as evidence in the hearing.
Mr. Rath asked if Dr. Hinshaw recalled any briefings regarding psychological impacts of her orders, with particular regard to masks on children. Dr. Hinshaw said she did recall questions put to the scientific advisory board about masking on small children. At that time, there was no literature that showed significant harms for children for masking.
Mr. Rath made a significant point by getting Dr. Hinshaw to acknowledge there were no trained psychologists or psychiatrist on the scientific advisory board.
Mr. Rath asked if Dr. Hinshaw had the power to order the government to put additional funds into the healthcare system. Dr. Hinshaw then referred back to the decision process she had described previously, that she provided recommendations for policy decisions made by public officials. While acute care was part of the response, she did not consider it within her power to order the government to put funds towards healthcare.
Moving on, Mr. Rath asked if any economic information as to the impact of the health orders was provided to Dr. Hinshaw. Again, she returned to the decision-making process, and said the economic analysis was done by different ministries and provided to the cabinet committee and she would have heard the information in that context. Mr. Rath if she could provide the court with an estimate as to how many billions of dollars her orders have cost the province. She said she didn’t have that information with her and she wasn’t sure of the timeframe. Mr. Rath specified that the hearing was limited to the 3rd wave. So up to her July of 2021 affidavit, did any advise her of how many billions of dollars her orders have cost the province’s economy? Dr. Hinshaw said it was incorrect to assume that all costs could be attributed to the orders, and there were in fact economic impacts caused by the uncontrolled spread of the virus in a community. So she didn’t recall any economic data share that could make the distinction between the cost of the restrictions and the cost of the virus.
As an Albertan, Mr. Rath said, Dr. Hinshaw must have seen all the shuttered business that have closed down because of the public health orders. Dr. Hinshaw said that she was aware that there have been business closures due to the pandemic, but again stated it is hard to distinguish between what was closed due to the orders, or due to the virus spread. Mr. Rath asked if she accepted that restaurants and gyms could have gone bankrupt because of her health orders. Dr. Hinshaw said that she was certain that the orders were a factor.
In a question he carefully rephrased, Mr. Rath asked, up until the date of her affidavit, in the information she was privy to, what estimates did she hear on the costs of the lockdowns and the virus combined. Mr. Parker objected that this was asked and answered. But Justice Romaine, after repeating the question, ruled that it had in fact not been asked before, and so ordered the witness to please respond. Dr. Hinshaw had the same answer as before, that she didn’t have that information at her fingertips.
Mr. Rath asked if Dr. Hinshaw recalled in April of 2020, the Alberta premier speaking about increasing acute care capacity. Dr, Hinshaw did not recall this specifically, though she did acknowledge there were ongoing discussion of the topic. Mr. Rath asked if these were factored into the consideration of her orders. Dr. Hinshaw said this was always considered, but question specifically about that capacity would be best put to AHS. Mr. Rath then asked that, given the concern and discussion over this, why didn’t Dr. Hinshaw either order or recommend an increase in capacity, or the hiring of more doctors and respiratory therapists rather than issue orders limited personal freedom and closing down businesses? One of the problems they faced, she said, was that the impacts of Covid were being felt around the world and so healthcare workers were in short supply, and it was not possible to generate the extra here in such a short time.
AHS was attempting to increase capacity, but Dr. Hinshaw didn’t believe an order would have changed “the practical realities on the ground.” Also, she said, that the orders were the legal instrument used to implement the policy decisions made by elected officials, and that this the decision making group was doing everything possible to expand acute care capacity.
Based on her statement, Mr. Rath then asked if it was Dr. Hinshaw’s evidence that her orders were not actually her orders, that these were in fact cabinet orders being promulgated under section 29 of The Public Health Act?
Mr. Parker objected that this was not her evidence. She had testified her order came under section 29 which stated these were the orders of the Chief Medical Officer of Health. Mr. Rath responded that this is a problem, that Dr. Hinshaw keeps stating that these were orders came from cabinet. The testimony of Dr. Redmon earlier in the hearing was that it was his opinion that the orders should have been promulgated under the Emergencies Act because these were actually orders of cabinet.
Justice Romaine interrupted and asked that Dr. Hinshaw to go offline while they dealt with this objection. After Dr. Hinshaw had removed herself from the virtual court, Justice Romaine explained that the reason she asked the witness to step out was because Mr. Rath was making statements about his understanding of her evidence. This would be a matter for argument. Mr. Parker stated that Mr. Rath’s question was not fair because the orders “say what they say.” Mr. Rath has said this is now not the witness’s testimony. Madame Justice acknowledged the testimony of Mr. Redman.
She said as far as she understood it, Dr. Hinshaw has simply described the process. And she asked Mr. Rath to now respond.
Mr. Rath said Dr. Hinshaw has said many times that the process is that she makes recommendations to cabinet, and then cabinet tells her what to do. So, the issue is the fettering of her discretion under section 29 of the Public Health Act. If the situation is that the cabinet is telling her what to do, he said, then he has some real concerns about her credibility when she claims to be acting from a medical perspective where she is claiming to be acting as the doctor for every Albertan.
Mr. Parker responded that he did not fully state the reason for his objection. He wanted to object on the basis of relevancy because he did not believe the issue was raised in the pleading.
Mr. Rath countered that this was a new issue created by Dr. Hinshaw’s testimony. Further, it goes to credibility because she states that she is the one creating the orders, but she testifies that she is merely a mouthpiece for the cabinet, which is not in the statute.
Justice Romaine said that this objection requires a “more measured response” including references to what was said in the transcript. The Justice wanted to deal with this separately at a later time.
The court adjourned at 4:23 PM to reconvene at 9:30 AM Wednesday.