Challenging the constitutionality of Alberta’s public health measures

Ingram et al v. Alberta

Challenging the constitutionality of Alberta’s public health measures

Ingram et al v. Alberta

December 9, 2020:

The Justice Centre has filed a court challenge to Orders made by the Chief Medical Officer of Health and select unconstitutional sections of the Public Health Act, to end the violation of Albertans’ Charter freedoms. The Justice Centre is representing two Alberta churches and two individuals alongside Alberta lawyer Jeffrey Rath who represents another individual.

The Justice Centre’s filed lawsuit states that the Alberta government has violated the right to peaceful assembly, the right to travel, the right to conduct a business to earn a living, the right to visit family and friends, including having visitors in one’s own private residence, and the right to worship. The Justice Centre has been inundated with thousands of emails from people who are being financially ruined by lockdowns, suffering mental health issues, losing their businesses, unable to see their elderly parents, and being denied critical health care with conditions besides COVID.

On December 8, 2020, the Alberta government announced an even more repressive slate of restrictive lockdowns reminiscent of Stage 1 of lockdowns earlier implemented in March 2020 before the severity of COVID was fully known. As of December 13, all gyms, casinos, restaurants, hair salons, massage therapy clinics, tattoo shops, concert halls, and other businesses must shut down, with limited take out or delivery service only. The Alberta government has outlawed any outdoor or indoor social gatherings of people outside one’s own household, and imposed a mandatory work from home order.

In response to flagrantly flawed predictions regarding the lethality of COVID-19, the Alberta Government first declared a state of public health emergency in Alberta on March 17, 2020. Under the guise of “two weeks to flatten the curve,” the resulting lockdown devastated small businesses and has led to large-scale societal harm in the form of increased unemployment and poverty, deteriorating mental and physical health, drug overdoses, cancelled surgeries, the loss of personal liberty and even death.

On November 24, 2020, the Alberta Government again declared a state of public health emergency, imposing a “second wave” of lockdown harms and authoritarian restrictions on the ability of Albertans to travel, conduct business, visit family and friends, obtain necessities, peacefully assemble, manifest their religious beliefs, and breathe freely.

Since March 16, 2020, Alberta’s Chief Medical Officer of Health (CMOH) has pronounced 40 public health orders that have crushed constitutionally-protected rights and freedoms as guaranteed by the Canadian Charter of Rights and Freedoms. The latest round of CMOH Orders outlaw people visiting friends and family or holding small gatherings in their homes, and restrict outside gatherings, weddings and funerals to a measly 10 people.

As part of the court challenge the Justice Centre will argue that that CMOH Orders violate multiple Charter-protected rights, such as the right to peacefully assemble, the right to visit friends and family, the right to freely practice religious beliefs, the right to travel and the right to conduct business and earn a living. The Justice Centre will further argue that these constitutional rights violations are not justified because lockdowns cause far more harm than whatever harm from COVID-19 lockdown measures may prevent.

“In a free society, the government respects citizens as they exercise their freedom and responsibility to respond to a perceived crisis as they deem best for themselves and their loved ones. Arbitrary and authoritarian control, based on fearmongering by the government, only ever exacerbates the problems facing society, as we have seen for the last nine months. Politicians have not put forward any persuasive evidence that lockdowns have saved lives, but there is no question that lockdowns have caused grave harm to millions of Canadians suffering unemployment, poverty, cancelled surgeries, suicides, isolation and the loss of their liberty,” states Justice Centre lawyer James Kitchen.

“The people of Alberta have suffered under the oppression of a medical dictatorship for long enough. The soul-destroying lockdowns have wrought havoc. It’s time for Albertans to get their freedom back,” concludes Kitchen.

In February 2022, the Justice Centre was in Court on a 14-day-trial, on an Application in the Court of Queen’s Bench against Alberta lockdowns which started on December 4, 2020.

Lawyer Leighton Grey Q.C. had conduct of the constitutional challenge brought by the Justice Centre, on behalf of individuals and churches, and was joined by lawyer Jeffrey Rath, who represented an individual client. The action is to set aside the Chief Medical Officer of Health (CMOH) Orders that trampled the constitutionally-protected rights of citizens of Alberta, and violated the Alberta Bill of Rights and Charter of Rights and Freedoms.

By February 2022, in the Province of Alberta, only 0.000025% of the total Alberta population had died from an alleged COVID-19 infection without any other fatal comorbidities.

On February 11, 2022, Dr. Jay Bhattacharya, a Stanford-educated epidemiologist, testified for the Justice Centre as the expert witness on public health and Covid-19. Dr. Bhattacharya is a world-renowned expert who is co-author of The Great Barrington Declaration, which advocates for targeted measures to protect vulnerable populations from Covid, rather than mass societal shutdowns and lockdowns. Dr. Bhattacharya has testified in many such cases, including the Justice Centre’s Gateway Constitutional challenge heard last May in Manitoba. The Court heard that Dr. Bhattacharya refuses all offers of compensation for his services as an expert witness.

The Alberta Government brought an application to not allow any documents after July 21, 2021 into the court hearing, just before the trial started on February 11. Lawyer for Alberta, Mr. Nicholas Parker told the court he is going on vacation on February 25, 2022 and does not want the trial to run longer than scheduled, even though all others agree to extend if necessary. Mr. Rath told the Court that this is the second time this trial has been impacted by someone’s vacation schedule, the first was when Government lawyers sought an adjournment due to Dr. Hinshaw dealing with “hospital crisis” due to Covid-19 in September, but went on holiday instead the day court was scheduled to attend.

Dr. Bhattacharaya withstood vigorous cross examination, during which he maintained that the societal costs of lockdown measures vastly exceed their benefits, and that the preferred approach is focused protection of those who are most vulnerable to severe health outcomes from Covid-19, i.e. individuals over 60 years of age who suffer from multiple co-morbidities.

Colonel David Redman also testified on behalf of the Applicants about Alberta’s refusal to follow its own 2014 pandemic response plan, its failure to develop a coherent plan to deal with Covid-19, and the severe public costs of lockdown measures.

The Court denied the joint Application of Mr. Grey and Mr. Rath to have The Honourable Brian Peckford P.C., former premier of Newfoundland, and one of the original drafters and signatory to the Charter of Rights and Freedoms, testify in the case. The Court described Mr. Peckford as private citizen whose first-hand knowledge of s.1 of the Charter is “irrelevant” to the issues to be decided by the Court. Justice Romaine also granted the Government application to exclude a recent John’s Hopkins meta-analysis on the ineffectiveness of lockdowns and other non-pharmaceutical interventions. Justice Romaine accepted the Alberta Government position that this report was not relevant, since it was only released last month and would import the benefit of hindsight to the CMOH. This is despite the fact that all but one of the 34 studies covered therein were completed in 2020 and related specifically to an analysis of the first wave. As of February 2022, all of the many contested procedural applications conducted in the case since December of 2020 have gone in favour of the Alberta Government.

Alberta Government counsel requested that health orders only be considered by the court up until the date of the previous hearing in July 2021, which was the cut-off date for submissions. Lawyers for the Applicants argued that they had given the court notice, from the beginning of proceedings, that they intended to include evidence about all the directives, up to and including the current hearing, due to the fact that their clients are affected by all government directives. Lawyer Jeffery Rath said they had also sent a letter to Justice Poelman in October 2021 concerning this issue. Justice Romaine said that the letter appears to have not been received by the Court.

Due to a variety of discussions and delays, outlined in this February 17, 2022 update, the court adjourned until Tuesday, February 22, 2022, the following week. At the time, the Applicants planned to prepare and file a new application that would deal specifically with the post-September CMOH Orders. That application was filed and served to the Government the follow week.

There was not sufficient time to question all of the witnesses in three days during the following week, nor was there enough time for the Court to hear final arguments. The Applicants sought a new application be heard concurrently with the other one.

Back to court in April 2022, Dr. Deena Hinshaw, Alberta’s Chief Medical Officer was cross-examined. During the cross, lawyer Leighton Grey asked if Dr. Hinshaw agreed that her position was a political appointment. She agreed but noted that the appropriate legislation had been changed to require those appointed to be specially trained in public health. Mr. Grey asked if she agreed that the role of the public health officer has been greatly expanded recently. Dr. Hinshaw disagreed and said her role was to provide advice to elected politicians who made the decisions. She would not agree that the power to issue province-wide public orders is new.

In response to Mr. Grey’s suggestion that he doesn’t recall there being a designated chief officer of health for the entire province until recently, Dr. Hinshaw said that this position has existed “for decades.” She stated that the position goes back a century to the creation of the first Alberta Public Health Act. Mr. Grey then stated that it was his understanding that what was new in the legislation was the ability of the public health officer to use “any means necessary” to control an outbreak like the pandemic. Again, Dr. Hinshaw disagreed, saying “by-any-means-necessary predated the pandemic.” The two managed to agree that the way the public health orders were used during the recent pandemic is without precedent.

With regards to expertise, Mr. Grey noted that Dr. Hinshaw is not an expert in virology or epidemiology, though she would often speak publicly about these issues. Dr. Hinshaw conceded she was not an expert, but considered herself competent in these subject. Many of her advisors were, however, experts.

(For more detail, catch up on the trial updates: April 4, 2022 and April 5, 2022)

On August 23, 2022, a court application was filed to compel Dr. Deena Hinshaw to re-attend court for further cross-examination in the constitutional challenge to her lockdown orders. The application alleges that Dr. Hinshaw knowingly withheld evidence from the court regarding her knowledge of the dangers and harms of forced masking on children. The Application was brought jointly by Leighton Grey, Q.C. – on behalf of the Justice Centre for Heights Baptist Church, Northside Baptist Church, Erin Blacklaws, and Tory Tanner – and Jeffrey Rath, counsel for Rebecca Ingram. A court hearing was scheduled for Friday, August 26, 2022, to reopen the case based on new evidence

The application also requested that the Court require Dr. Hinshaw to produce all of her recommendations to the Kenney government related to her own Covid-19 lockdown orders, as well as to require Dr. Hinshaw to answer all questions which were previously objected to by counsel for the government of Alberta on the basis of Cabinet Confidentiality.

Dr. Hinshaw was cross-examined in the court challenge to her health orders on April 4-7, 2022. Since her cross-examination, in July 2022, documents which Premier Kenney’s cabinet had previously claimed confidentiality over were ordered to be released to the public by the Honourable Justice Dunlop, on July 13, 2022, in a separate, unrelated court case CM v. Alberta. The now-public documents contain a memo generated by the Premier’s office, sent to both Premier Kenney and Dr. Hinshaw, regarding lack of evidence to justify forced public masking and the dangers to children from such orders. The Alberta government failed to disclose the existence of these documents in the Ingram case.

According to the Application, the Alberta government-generated memo states that:

  • There is insufficient direct evidence of the effectiveness of face masks in reducing transmission of Covid in educational settings;
  • That there are harmful effects of mask wearing on children; and

That masks can:

  • Disrupt learning;
  • Interfere with children’s social development;
  • Interfere with children’s emotional development;
  • Interfere with children’s speech development;
  • Impair verbal and non-verbal communication;
  • Impair emotional signalling; and
  • Impair facial recognition.

During her cross-examination in April, Dr. Hinshaw was specifically asked whether she was aware of any evidence of harms to elementary school children from being compelled to wear masks. Dr. Hinshaw answered this question before the court in April in the negative. The Application contends Dr. Hinshaw’s answers to this line of questions were false, and that she failed to disclose her knowledge of the harms to children from forced masking.

The application asserts that it is clear that there were a significant number of studies in Dr. Hinshaw’s possession or control which in fact did show evidence of harm to children from forced masking. Dr. Hinshaw’s health orders required forced public masking, including masking of elementary-aged children in all schools.

The government filed a written brief on August 12, 2022, in the CM v. Alberta Case. Contrary to their position and evidence in the Justice Centre case, in that brief, they argue that the CMOH orders were essentially policy decisions and not medical ones. At paragraph 81 they state: “the CMOH, the Public Health Act s. 29 and all resulting orders were cogs in a much larger machine.”

“The Canadian provinces and the country as a whole were under authoritarian-style rule by health officials for more than two years”, states Marty Moore, lawyer at the Justice Centre. “The ongoing scrutiny by the courts of the constitutionality of health official’s unprecedented power remains of the utmost importance to Canadians.”

There are hundreds of related cases making their way through the Alberta Courts right now, the outcomes of which entirely depend upon the Ingram decision. These include the prosecutions of Pastors James Coates and Timothy Stephens, both of whom are represented by the Justice Centre.

Updated August 1, 2023:

The Justice Centre for Constitutional Freedoms is pleased with the Court of King’s Bench of Alberta’s decision to invalidate the public health orders of Dr. Deena Hinshaw, Chief Medical Officer of Health (CMOH), in Ingram v. Alberta. The court struck down these lockdown measures because they were effectively issued by Cabinet rather than by the CMOH. Dr. Hinshaw testified at trial that politicians were the final decision-making authority, and that she merely provided advice and recommendations.

With these health orders having been invalidated, it is expected that Crown prosecutors will need to withdraw charges against Ty Northcott/ Northcott Rodeo Inc.Pastor James Coates of Grace Life Church of Edmonton, Pastor Tim Stephens’ church, Fairview Baptist Church, and others.

The court’s ruling also confirms that lockdowns did violate Albertans’ fundamental freedoms of conscience, religion, association, and peaceful assembly protected in the Canadian Charter of Rights and Freedoms. In this court action, the Alberta government produced no comprehensive studies, reports or data analyzing lockdown harms. Without any comprehensive cost-benefit analysis, Justice Barbara Romaine nevertheless concluded that lockdowns were justified violations of Charter freedoms because they produced more good than harm.

Using the slogan “two weeks to flatten the curve,” the Alberta Government first declared a public health emergency in March of 2020, after which various Charter rights and freedoms were violated during the next two years. When Rebecca Ingram and other applicants filed their court action in December of 2020, the Alberta government had already been restricting Albertans’ rights to associate freely, assemble peacefully, and practice their religious beliefs for almost nine months. This was the first court challenge to lockdown measures in Alberta. In spite of Charter freedoms having already been violated for almost nine months, the court granted the Alberta government’s request to delay presenting its evidence until July of 2022.

In April 2022, Dr. Deena Hinshaw was cross-examined about what expert information she had at the time that these public health decisions were being determined. Dr. Hinshaw was specifically asked whether she was aware of any evidence of harms to elementary school children from being compelled to wear masks. Under oath, Dr. Hinshaw said no. Yet the court’s ruling in another case, C.M. v. Alberta, has revealed that Dr. Hinshaw did receive information about how children could be harmed by mandatory mask-wearing. A February 7, 2022 memo sent to Premier Jason Kenney, on which Dr. Hinshaw was copied, stated that masks can disrupt learning and interfere with children’s social, emotional, and speech development by impairing verbal and non-verbal communication, emotional signaling and facial recognition. Nevertheless, the Court dismissed an interlocutory application to compel Dr. Deena Hinshaw to re-attend court for further cross-examination.

“Significant injustice has taken place in the past three years under these draconian public health measures. We are hopeful this ruling will mean the withdrawal of charges against Pastor James Coates, Fairview Baptist Church, Ty Northcott, and other courageous citizens who refused to comply with unjust and utterly unscientific measures,” states John Carpay, President of the Justice Centre.

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