Calgary

Albertans' rights 'trampled' during COVID, lawyer suggests while cross-examining Dr. Hinshaw

Alberta's chief medical officer of health is in the hot seat for the next several days as she testifies in court about the decision-making process and implications of pandemic-related restrictions imposed over the past two years.

Individual rights versus greater good at issue in court hearing

Dr. Deena Hinshaw, Alberta's chief medical officer of health, is being cross-examined in a Calgary court over the next few days. A group of plaintiffs is seeking a judge's ruling that pandemic-related restrictions were unconstitutional. (Jason Franson/The Canadian Press)

A lawyer for a group of Albertans seeking to have pandemic-related restrictions ruled unconstitutional has asked Dr. Deena Hinshaw, the province's chief medical officer of health, why she did not hold a press conference urging people to eat less and lose weight to prevent serious illness if infected with COVID-19.

Leighton Grey, a lawyer for the plaintiffs, which include two churches and a gym owner, has argued that those at lower risk of serious illness from contracting the virus should not be punished by restrictions that target more vulnerable populations.

Alberta's chief medical officer of health is in the hot seat for the next several days as she testifies about the decision-making process and implications of pandemic-related restrictions imposed in the past two years.

Grey is cross-examining Hinshaw on her 206-page affidavit filed as part of the legal challenge taking place in the Court of Queen's Bench in Calgary.

Hinshaw's affidavit details pandemic statistics, timelines and decision-making frameworks.

'The heart of this case'

At the beginning of the day, Grey told Hinshaw he hopes to "arrive at the truth" through his questioning.

"I hope you won't take any of these questions as a personal attack, it's not intended to be that way, OK?" he said.

The group's key arguments are that the virus does not kill younger, healthy people and that government-imposed restrictions do more harm than good.

"The tensions between individual liberty and the greater good … is the heart of this case," said Grey.

'All of these deaths mattered'

Grey took Hinshaw through the at-risk groups suggesting there were "very, very few deaths" among people under 60 years old. He also pointed out that obesity is a risk factor for experiencing more serious illness from COVID-19.

"You never told Albertans they could reduce their risk of COVID-19 by reducing the amount that they ate," said Grey. 

"You never said, 'You know, it would really help you, it would really help your health, if you would get your weight under control.'"

Hinshaw did not know the proportion of people admitted with obesity but said one in five Albertans who ended up in hospital because of the virus did not have a chronic condition.

"Obesity is a chronic condition, it's not a condition that can be changed in a short period of time," said Hinshaw. 

It's not simply "a willpower problem," she said. "I would just like to reiterate the ethical principle that all of these deaths mattered."

Individual rights 'trampled'

Grey has questioned Hinshaw's decisions on and the science behind limits on gatherings, masking, physical distancing and business closures.

The lawyer suggested the province "trampled" on individual rights by looking at the overall picture.

Hinshaw repeatedly pointed out that although there are demographics more at-risk than others, the pressures on the health-care system when hospitals become overwhelmed affect the entire population. 

In December 2020, the same group of plaintiffs tried to convince a different judge to issue a stay of the province's pandemic-related restrictions pending this hearing. 

During that hearing, Nick Parker, a lawyer for the province, argued the province was experiencing "democracy in action in the middle of the biggest public health crisis this province has seen."

In her decision, Justice Anne Kirker found the risk of transmission of COVID-19 to be real and refused to grant the emergency injunction, ruling the health measures were in the public's best interests.

Nearly all public health restrictions were lifted last month by the Alberta government.

Court of Queen's Bench Justice Barbara Romaine is presiding over the hearing. 

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