Jay Bhattacharya: Canadian Courts Complicit In Failed Lockdowns That Violated Rights

An Alberta judge justified the province's COVID restrictions in July, even though they were illegally implemented
Published on August 20, 2023

Did the Canadian lockdowns violate the rights of citizens? A recent decision by an Alberta judge in the case of Ingram v. Alberta (Chief Medical Officer of Health) answered “yes” to this question.

Justice Barbara Romaine of the Court of King’s Bench ruled that Alberta’s COVID orders violated civil rights because it was the government, led by former premier Jason Kenney, that ordered the lockdowns — rather than the unelected chief medical officer of health, Dr. Deena Hinshaw. The draconian lockdown measures therefore violated the Public Health Act.

Alberta’s COVID restrictions brought numerous shifting restrictions to businesses and schools. They also capped wedding and funeral attendance at 10 and 20, respectively, and limited attendance of worship services to 15 per cent of a facility’s total capacity. Outdoor sports were strictly limited, and outdoor performances by more than 10 people were banned.

Schools, businesses and churches (including two pastors who faced jail time for the crime of worshipping according to their faith) filed the court challenge against these COVID orders two years ago. The case brought by these litigants and lawyers (including one of the authors of this column) argued that the lockdowns harmed Canadians’ health and well-being and violated Canadians’ fundamental civil rights, including those set out in the Charter of Rights and Freedoms.

Experts for the plaintiffs (including an author of this column) argued that Albertan public health officials had not conducted proper benefit-harm analyses that accounted for the harms of lockdowns. Additionally, they argued that the lockdowns were unnecessary due to the existence of policy alternatives more akin to the Swedish approach, which emphasized focused protection of vulnerable populations and voluntary cooperation between health officials and the public — rather than closures and mandates.

After three years of bitter experience under authoritarian COVID policies, it’s clear that the Swedish approach was the stronger policy choice. Canadian kids forced into substandard online schools are academically far behind where they should be, especially those who are poor. Psychiatric problems like anxiety and depression, as well as drug overdoses, have risen to catastrophically high levels, partly due to the isolation caused by lockdown policies. And, of course, the Canadian economic doldrums of the past three years are directly connected to the lockdowns.

Perhaps the most shocking disparity in which Canada fared worse than Sweden could be seen in the number of lives saved. The key statistic was measured by the number of people who died during the pandemic relative to what might have been expected given Sweden’s and Canada’s population size and age structure. By that metric — cumulative excess age-standardized mortality — Canada incurred about 90 more deaths per 100,000 people than would have been expected between March 2020 and February 2023, while Sweden had about 60 more per 100,000 in that time. Without draconian lockdowns, Sweden protected its population better than Canada.

Even as Justice Romaine ruled that the Albertan lockdowns were illegally implemented, her opinion made it clear that she thought they were justified. She went out of her way to impugn the motives and testimony of the plaintiffs’ experts. As a point of fact, the co-author of this article and expert in the case provided their services pro-bono, motivated by concerns over public health policy. Justice Romaine, by contrast, implausibly bolstered the credibility of the government’s primary expert, Dr. Hinshaw, who supported the disastrously failed lockdowns.

In her decision, Justice Romaine agreed that her role was “not that of an ‘armchair epidemiologist’” and made it clear that she was “neither equipped nor inclined to resolve scientific debates and controversy surrounding COVID-19.” She should have stuck to this position. Instead, she wrote that “the salutary benefits of the restrictions outweighed the deleterious effects of the limits,” even in the absence of evidence provided by the government to that effect.

At one point in the proceedings, Justice Romaine prevented plaintiffs’ lawyers from introducing a comprehensive meta-analysis conducted by researchers at the prestigious Johns Hopkins University, which summarized the scientific literature on the efficacy of lockdowns. The conclusion, which Justice Romaine did not want to hear, is that lockdowns and other restrictions were ineffective at saving lives. Her ruling was the written equivalent of plugging one’s ears to avoid listening to unpleasant facts.

Because of her view on the need for lockdowns, Justice Romaine concluded that though the province’s COVID policies violated the civil liberties of Albertans, these infringements were “demonstrably justified” under Section 1 of the Charter of Rights and Freedoms, which permits the government to violate Canadians’ fundamental rights in the name of public health.

Unfortunately, Justice Romaine’s forgiveness for rights infringements was consistent with decisions made by other courts in Canada regarding the Charter. Canadian courts sent pastors to jail. They fined people. One judge told a pastor that he could not publicly criticize the lockdowns. Courthouses were among Canada’s most locked down locations, and most hearings were moved online, denying access to justice for Albertans.

What explains Justice Romaine’s decision? The Canadian judiciary shares the blame for the lockdowns. Chief judges of Canada’s highest courts met with Dr. Hinshaw to design lockdown policies. The courts failed in their duty to uphold constitutional rights and freedoms. They were instead compliant and complicit in their violation. Though she had no choice but to find lockdown implementation illegal — the law required it — Justice Romaine wrote her decision to exonerate her elite judicial class. Her decision sends the message that these illegal policies violated Canadian freedoms for the good of the public.

The ball is now in the Alberta legislature’s court to review the Public Health Act and ensure it clearly defines the powers and limits of unelected officials, guarantees transparency in decision-making processes and provides provisions for public oversight and accountability.

Albertans deserve a balance between an expeditious public health response and a robust safeguarding of their fundamental rights and freedoms — something they have not had from Canadian courts in at least three and a half years.

 

First published here.

Jay Bhattacharya, MD, PhD is a professor of health policy at Stanford University School of Medicine, and a founding fellow of Hillsdale College’s Academy of Science and Freedom.Watch his National Citizens Inquiry testimony here.

Leighton B. U. Grey, K.C. is senior managing partner of Grey Wowk LLP, an Alberta law firm specializing in litigation. He was retained by the Justice Centre For Constitutional Freedoms in several high profile COVID cases involving churches and Christian pastors. Watch his National Citizens Inquiry testimony here.

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