Alberta Judge Dismisses Bid To ‘Save Christmas’ From COVID Restrictions

December 23, 2020 0 By PENTICTONLAWYERS

It might sound nice on paper, but it turns out asking a judge to suspend public health restrictions in order to “save Christmas” isn’t going to get you very far in the midst of the COVID-19 pandemic. At least not in Alberta.

That’s what a group of applicants found out this week when they asked the province’s Court of Queen’s Bench for an injunction against the province for “cancelling Christmas.”

Two Alberta churches and three individuals argued that recent restrictions introduced by the province, including limits on the size of faith services, mandatory masking and restrictions on social gatherings, were unconstitutional and infringed upon their fundamental rights and freedoms. 

“When you were sworn in as a justice of this court you never contemplated being … the justice that would have the power to save Christmas, and that’s certainly what we’re asking you to do today,” lawyer Jeff Rath said to Justice Anne Kirker during Monday’s hearing. 

But after a raucous hearing filled with meandering arguments, conspiracy theories and members of the applicants’ legal team casting doubt on the authority of public health officials, Kirker ultimately ruled that there wasn’t sufficient evidence the restrictions were causing “irreparable harm” to overrule them.

“The applicants have established with their evidence the benefit of allowing citizens of this province to gather and celebrate the holidays and to otherwise exercise unconstrained their religious freedoms,” Kirker said.

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“I hear and appreciate how difficult it is for the applicants and other members of the public, especially at this time of year, but I cannot find the public interest is served in granting this stay.”

Earlier this month, Alberta introduced a series of targeted restrictions to slow the spread of COVID-19, including limiting social gatherings to only your household, and putting 15 per cent capacity limits on faith services. In subsequent weeks, Premier Jason Kenney has suggested the restrictions are working and the province is seeing a “plateau,” though it continues to have the highest number of active cases per capita in Canada. 

During Monday’s hearing, Kirker heard submissions from the applicants and various affidavits questioning data provided by the government, the effectiveness of restrictions and even the extent of the public health emergency 

Members of the group’s legal team also argued that Canada was entering a “police state.”

“Canada is probably the closest it has come to an authoritarian police state certainly since the advent of the charter,” lawyer James Kitchen said.

Others suggested that the pandemic wasn’t as bad as everyone made it out to be and that chief medical officer Dr. Deena Hinshaw was not qualified to issue public health orders on COVID-19.

“This is not polio. This is not smallpox. This is not the Spanish flu. Healthy people are not dying from COVID-19,” Rath said during the hearing. “Government has not provided the evidence that these orders will prevent harm.”

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In actuality, there is a wealth of scientific proof that limiting social gatherings, wearing masks and introducing other public health measures can slow the spread of COVID-19 and actively prevent harm, both in Canada and abroad. Targeted “circuit-breaker” lockdowns in places like Australia have led to a near-zero case count within just a few months. 

In her decision, Kirker said many of the submitted affidavits had little relevance to the case. On the matter of the Charter of Rights and Freedoms she said there are reasonable limits to fundamental rights— you don’t have the right to harm others. That meant the ruling came down to what was more beneficial for the public good — restrictions or no restrictions. 

Kirker ultimately ruled that the benefits of larger social gatherings will not outweigh the harms of increased transmission, so Alberta’s restrictions will remain in place for Christmas. 

“I must assume the restrictions protect public health,” she said. 

With files from the Canadian Press.