In the past two-and-a-half years, courts in several provinces have directly or indirectly affirmed lockdowns, travel restrictions and mandatory vaccination policies that pressured people into getting injected with the COVID-19 vaccine. As long as governments claim to be motivated and guided by “science,” it seems Canadian judges are more than willing to approve the government’s violations of the Charter freedoms of association, conscience, religion, mobility, expression, peaceful assembly and bodily integrity..It was wonderful and refreshing therefore to see the Alberta Court of King’s Bench invalidate the health orders of Alberta’s Chief Medical Officer of Health (CMOH), Dr. Deena Hinshaw, in Ingram v. Alberta. Justice Barbara Romaine struck down the lockdown measures because they had been issued by Cabinet rather than by the CMOH. Dr. Hinshaw had testified at trial that politicians were the final decision-making authority, and that she merely provided advice and recommendations. The court ruled that CMOH orders, to be valid, had to come from Dr. Hinshaw instead of from Premier Jason Kenney..With these health orders having been invalidated, it is expected that Crown prosecutors will need to withdraw charges against Ty Northcott and Northcott Rodeo, Pastor James Coates of Grace Life Church of Edmonton, Fairview Baptist Church (led by pastor Tim Stephens) and others. Abandoning prosecutions will save Alberta taxpayers money and will allow the Justice Centre to refocus resources on other priorities..While this Ingram ruling confirms lockdowns did violate Albertans’ fundamental freedoms of conscience, religion, association, and peaceful assembly, the court viewed these Charter violations as “demonstrably justified in a free and democratic society.”.Justice Romaine has thus joined other Canadian judges who have largely ignored the massive body of evidence supporting the fact that lockdowns inflicted serious harms on many (and likely most) people. In the Ingram case, the Alberta government produced no comprehensive studies, reports or data analyzing lockdown harms. Without any serious cost-benefit analysis, Justice Barbara Romaine simply declared that lockdowns produced more good than harm, thereby justifying the massive and prolonged violations of Albertans’ Charter freedoms. As she explains at paragraph 9 of her judgment:.“… the role of the Court is not that of an ‘armchair epidemiologist.’ … I am neither equipped nor inclined to resolve scientific debates and controversy surrounding COVID-19. The question before this court is not whether certain experts are right or wrong. The question is whether it was open to the CMOH or Alberta to act as it did in implementing the impugned Orders and whether there was scientific support for the precautionary measures that were taken.”.This short excerpt from the Ingram ruling contains a glaring problem..First Justice Romaine says she is not qualified to assess or evaluate scientific evidence, and not capable of actually determining whether the government’s violations of Charter freedoms were rational, effective, necessary or based in rigorous science. But Justice Romaine nonetheless embraces “scientific support” for the government’s “precautionary” (freedom-violating) measures. In other words: “I’m not qualified to assess scientific evidence and evaluate its merit (or lack thereof) but if the government shows me some ‘scientific support’ for its COVID restrictions, I will excuse the government’s violations of Charter-guaranteed rights and freedoms.”.Justice Romaine’s approach completely eviscerates the test for constitutionality laid out by the Supreme Court of Canada in R. v. Oakes, a test used since 1986 by Canadian courts when ruling on Charter violations..Canada’s courts are supposed to hold governments to account whenever they violate Charter rights and freedoms. The Charter requires governments to prove in court with compelling evidence that their supposedly “scientific” measures are effective, rational, necessary and, indeed, scientific. To date, neither the Alberta government nor any other government in Canada has met its onus of proving that lockdowns were carefully designed to actually achieve their objectives by submitting a comprehensive cost-benefit analyses before the courts. To date, courts are OK with this glaring absence..Understand the danger here: your constitutional freedoms can be ignored on the say-so of government “experts” who claim to possess “the science,” all without effective judicial oversight. Canada has become an authoritarian “technocracy” rather than the “fee and democratic society” as envisioned by the Charter..This Ingram ruling presents Premier Danielle Smith and her government with an opportunity to implement changes to the Public Health Act that would protect Charter rights and freedoms through legislative safeguards..Alberta’s Public Health Act should be amended to require the CMOH to disclose to the public, at all times, the specific assumptions, data, and sources for their modelling and for their health orders. Declaring oneself to be the sole purveyor of science is not good enough. The specific and detailed information that governments rely on to justify restrictions on Charter freedoms should be available to the public in real time..Further, a declaration of a public health emergency by the CMOH should be subjected to a free vote of the legislature, taken only after a thorough and fully-informed debate. A public health emergency should expire, automatically, every 30 days unless reconfirmed by subsequent votes..The CMOH should appear weekly before an all-party committee of elected members of the legislature, to answer questions and to provide documents and data as requested. If restrictions on Charter freedoms are based on sound evidence, then those who propose or impose these restrictions have nothing to fear from radical transparency and accountability..Alberta’s Public Health Act should subject public health regulations and orders to an ongoing and comprehensive cost-benefit analysis. The government’s monthly reports should measure and explain the impact of public health measures on mental health (alcoholism, drug overdoses, spousal abuse, child abuse, suicide), on physical health (cancer, obesity, all-cause mortality) and on unemployment, bankruptcies, homelessness, and public debt..The right of every individual to choose to receive or not receive medical treatments (including a vaccine) should be added to human rights legislation as a prohibited ground of discrimination..Based on respect for the scientific method that requires skepticism and ongoing debate, the Medical Profession Act should be amended to require the Colleges of Physicians and Surgeons to fully respect the right of all doctors to research, speak and write. Doctors should not have their licenses threatened for expressing heterodox opinions on medical topics, or any other topics for that matter. Further, apart from clearly unethical practices like female genital mutilation, the College must respect the doctor-patient relationship by neither compelling doctors to prescribe treatments nor prohibiting doctors from prescribing treatments..Proposed contracts between governments and pharmaceutical companies must be made available to the public, both prior to and after being signed. There should be no legislated liability protections for pharmaceutical companies who stand to profit from novel or emergency use products..Alberta’s Public Health Act should also provide that, upon conclusion of a public health emergency, a public inquiry must take place to review the government’s emergency-related policies, regulations and health orders, to determine what harms and what benefits resulted, concluding with a thorough and comprehensive cost-benefit analysis..Together, these legislative reforms would decrease the chance of Albertans suffering egregious violations of their Charter rights and freedoms in future..John Carpay, B.A., LL.B. is president of the Justice Centre for Constitutional Freedoms (www.jccf.ca).
