Calgary

Judge refuses to grant stay in legal challenge of Alberta's COVID-19 restrictions

A Calgary judge has rejected an emergency application seeking a stay of Alberta's public health restrictions to curb the spread of COVID-19, including bans on gatherings and mandatory masks.

Opponents of COVID-19 rules hoped judge would grant injunction ahead of hearing on constitutionality

Heights Baptist Church in Medicine Hat, pictured, and Northside Baptist Church in Calgary, along with three individuals, argue that a number of their constitutional rights have been violated by public health measures put in place to stop the spread of COVID-19. (Google Street View)

A Calgary judge has rejected an emergency application seeking a stay of Alberta's public health restrictions to curb the spread of COVID-19, including bans on gatherings and mandatory masks.

Lawyers for the group of plaintiffs — which included two southern Alberta churches and a Calgary gym owner — have filed a challenge in the Court of Queen's Bench of Alberta arguing that the province's COVID-19 restrictions violate their clients' constitutional rights.

The group had asked Justice Anne Kirker to issue an injunction ahead of its hearing on the constitutionality of the restrictions.

Kirker, in a decision issued after 2:30 p.m. MT Monday, said the risk of transmission of COVID-19 is real. She said she did not feel the public interest in granting the stay outweighed the public interest in maintaining the restrictions until the full hearing can take place. 

Court of Queen's Bench Justice Anne Kirker heard arguments Monday from applicants who want an emergency stay of Alberta's pandemic-related public health measures. (albertacourts.ca)

On Dec. 8, the government imposed a new set of rules in a bid to curb soaring COVID-19 infections, including the closure of all casinos and gyms, banning dine-in service at restaurants and bars and imposing a mandatory province-wide mask requirement.

The province also banned all outdoor and indoor social gatherings and imposed mandatory work-from-home measures for at least four weeks.

Kirker said Dr. Deena Hinshaw, Alberta's chief medical officer of health, has the authority to take necessary steps in the interest of public health.

"The information [the applicants] provide questions the necessity of the restrictions on the entire population of Alberta — this part of the applicants' argument goes too far," she said. 

Government 'cancelling Christmas'

A Calgary law firm and the Justice Centre for Constitutional Freedoms appeared in court Monday to apply for the emergency injunction staying Alberta's public health restrictions.

In the application, Heights Baptist Church in Medicine Hat and Northside Baptist Church in Calgary, along with three individuals, argued that a number of their constitutional rights have been violated, including limiting peoples' ability to gather for both social and religious reasons, along with travelling and conducting business or expressing themselves. 

The Justice Centre accuses the government of "cancelling Christmas" and suggests COVID-19 has not created an emergency beyond the normal scope of illness and death in the province.

Lawyers for the applicants say Albertans under the age of 60 are more likely to be murdered than die of the virus and argue lockdown measures cause "far more harm than any harm from COVID-19," according to a press release.

Rath & Company, the law firm representing the plaintiffs, said the government is "bankrupting businesses and stripping citizens of Alberta of virtually all of their rights under the Alberta Bill of Rights and the Charter of Rights and Freedoms."

'Critical point' in COVID-19 crisis

In response to the application, government lawyer Nick Parker argued the applicants don't meet the threshold required for an injunction and asked Kirker to "dismiss this application and dismiss it completely."

"The cornerstone of their argument is somehow we have the tyrannical Dr. Deena Hinshaw passing laws in Alberta and democracy is being undermined," he said.

"I would suggest that in fact what we are seeing is not tyranny and unlawful CMOH orders, what we are seeing is democracy in action in the middle of the biggest public health crisis this province has seen. We are in the critical point in that crisis."

Parker pointed to rising COVID-19 cases following Thanksgiving gatherings and argued the critical point in the crisis is Christmas.

Meanwhile, doctors say they are in day-to-day survival mode, as Calgary intensive care units stretch the surge capacity.

To date, 860 people have died of COVID-19 in Alberta. As of Monday, there were 795 people in hospital, including 151 in intensive care. The day saw 1,240 new cases recorded, bringing the total active cases to 19,165.

On Friday, Dr. Deena Hinshaw, Alberta's chief medical officer of health, warned that Alberta could easily see well beyond 2,000 new cases per day within a few weeks after the holidays, if Christmas proves to be "an accelerating factor."

Vaccines have begun being administered in the province, but only health-care workers will receive doses before the new year. 

Alberta plans to vaccinate 29,000 front-line workers by the end of December.

ABOUT THE AUTHOR

Meghan Grant

CBC Calgary crime reporter

Meghan Grant is the courts and crime reporter for CBC Calgary. If you have a good story idea or tip, you can reach her at meghan.grant@cbc.ca or on Twitter at @CBCMeg.

With files from Helen Pike and Sarah Rieger

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