Day of Reckoning Dawns on Illegal Alberta Lockdowns
Pandemic governance across Canada was a bad version of Abbott and Costello’s “Who’s on first?” Politicians handed power to chief medical health officers to relieve themselves of responsibility and political consequences. Now, at last, an Alberta court decision has exposed this farce.
On July 31, Justice B.E. Romaine of the Court of King’s Bench in Alberta said the province’s pandemic public health orders were ultra vires (beyond the powers of government) because they weren’t made by Dr. Deena Hinshaw, Alberta’s Chief Medical Officer of Health (CMOH).
“While the CMOH made recommendations and implemented the decisions of the cabinet and committees through the impugned Orders, she deferred the final decision making to cabinet,” Romaine wrote in the decision.
“The delegation of her final decision-making authority to cabinet is not permitted by section 29 of the Public Health Act.”
Leighton Grey defended plaintiff Rebecca Ingram in the case with the support of the Justice Centre for Constitutional Freedoms. He aptly summarizes the significance of the ruling.
“It is important because it recognizes, however reluctantly, that government power is limited, and that a court will tell them so. The rule of law was affirmed,” Grey said.
“Dr. Hinshaw was vivisected. She was so bad that the judge here spends pages trying to rehabilitate her. This is important to truth and justice. Two dictators have been banished— Kenney by populist political action and Hinshaw via this case.”
The proceedings did not leave Hinshaw unscathed. In April 2022, she was asked under oath what expert information she had when the public health orders were made. Hinshaw said she was unaware at that time of harms to elementary school children from being compelled to wear masks.
However, a court ruling in C.M. v. Alberta confirmed a Feb. 7, 2022 memo sent to Premier Jason Kenney, on which Hinshaw was copied. The memo stated that masks can disrupt learning and interfere with children’s social, emotional, and speech development by impairing verbal and non-verbal communication, emotional signals and facial recognition.
Unfortunately, the court dismissed an interlocutory application to return Hinshaw to the witness stand to explain the contradiction. Even so, Albertans prosecuted for defying illegal health orders can now switch from defence to offence.
“Hundreds of ongoing prosecutions in Alberta have been vitiated [spoiled], and the Alberta government now faces massive civil liability,” Grey said.
The Alberta government deserves this reckoning. Unfortunately, the cabinet leaders who “passed the buck” to Hinshaw will probably pass the buck to taxpayers to recompense damages.
Although Justice Romaine agreed that the health orders denied freedoms of speech, assembly, and worship upheld in the Charter and the Alberta Bill of Rights, she ruled such “limitations were amply and demonstrably justified as reasonable limits.” Yet, she could not even obey the laws of grammar when she did so.
“However, had the impugned Orders been validly enacted by the CMOH, they would not have been, however, are not unconstitutional,” reads her confused decision.
The Justice Centre rightfully challenged this claim in a press release.
“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.”
The Justice Centre introduced its legal action December 9, 2020, yet courts allowed the government a delay until July 2022 to present evidence backing its measures. Why would the government need more time if it knew all along what it was doing and why?
Hindsight, if nothing else, shows such health orders were a sledgehammer swung at a fly. COVID-19’s infection fatality rate was closer to a bad flu than a black plague, while the lockdowns were a clear attack on the mental, spiritual, social, and economic well-being of Albertans. The same could be said for other jurisdictions.
The myopic focus on preventing harms from the virus left other valid considerations disregarded by policy makers. An April 2021 analysis by SFU economics professor Douglas Allen found the cost-benefit ratio of lockdowns so egregiously bad that they could be the greatest policy catastrophe in the post-WWII era. Yet, he was largely ignored.
Arguably, Alberta should not have invoked emergency powers at all. Lockdowns had downsides outside of the purview of any chief medical health officer, but not beyond the collective heads of premiers, cabinet, and MLAs. They could have preserved their authority legally and honestly.
Emergency powers are meant to briefly suspend normal rights and freedoms until the emergency is over, with such powers used in a depoliticized way. Instead, the Alberta government usurped the best option for them and the worst for the people: the political use of unusual, rights-abridging powers while blaming Hinshaw.
Our politicians and the administrative state would prefer that the Covid fiasco be swept under the rug of good intentions and that we all “move on”. Unfortunately for them, their failed gong show is being exposed. The day of reckoning is dawning.
Lee Harding is a Research Fellow for the Frontier Centre for Public Policy.
