No injunction to save Christmas, but court action continues

No injunction to save Christmas, but court action continues

Dec 21st, 2020

EDMONTON: The Justice Centre is reviewing a ruling from the Alberta Court of Queen’s Bench, which denied a preliminary application for a temporary injunction to restore Charter rights and freedoms being denied by restrictions imposed by the Chief Medical Officer of Health (CMOH) and Alberta Government.

The full hearing of the Justice Centre’s application will take place sometime in 2021. The date has not been set yet. The Court will be asked to consider fully all of the various harms which lockdowns have inflicted, and are inflicting, on Albertans. The CMOH and other government officials will be required to answer questions under oath, and to provide evidence to justify the violation of Charter freedoms to move, travel, associate, assemble and worship.

In December, the Justice Centre filed a court challenge to Orders made by the CMOH, including an injunction application seeking a temporary suspension of certain lockdown measures until the Court fully considers the case. The Justice Centre is representing two churches and two individuals, alongside Rath & Company, who represents another individual.

Among other things, the Justice Centre argued that the Court should lift restrictions that effectively outlaw friends and family from gathering at each other’s homes to celebrate Christmas, and the public health order that prohibits outdoor hockey and other gatherings. Under this Order, grandparents cannot visit their grandchildren, and immediate family cannot be together if they do not live in the same household.

Since March 16, 2020, Alberta’s Chief Medical Officer of Health (CMOH) has pronounced 42 public health orders that have violated constitutionally-protected rights and freedoms as guaranteed by the Canadian Charter of Rights and Freedoms. At the heart of the case is a challenge to the constitutionality of Orders issued by one person without any consultation or review by the Alberta Legislature, contrary to the principles of democracy and the rule of law.

The latest CMOH Order declares illegal the celebration of Christmas among friends and family in a private home, restricts weddings and funerals to only 10 people, and completely prohibits all outdoor gatherings.

“On this application for a temporary injunction, the government was not required to demonstrate that its violation of Charter freedoms were justified. The fact the injunction was not granted does not mean the lockdown measures that violate people’s Charter rights are justified – that will be decided at the main hearing, to come in 2021,” states Justice Centre staff lawyer James Kitchen.

“The Court upheld the CMOH Orders simply by presuming that the Orders must be in the public interest. In regard to this application, the Court did not consider evidence as to whether the Orders actually are in the public interest or not. This, too, will be ruled on in 2021,” continues Mr. Kitchen.

“Dr. Deena Hinshaw swore and filed a cursory affidavit, with very little evidence in support of her opinions. Cross-examination prior to the injunction hearing was not possible, but will take place in 2021,” continues Mr. Kitchen.

“Justice Kirker agreed that Albertans are suffering irreparable harm – harm that cannot be remedied or compensated for – from the indoor and outdoor gathering restrictions imposed by the CMOH Order,” notes Mr. Kitchen.

Justice Centre for Constitutional Freedoms Says COVID Restrictions Violate Charter Basic Right of Freedom of Assembly

Conservative legal group challenges new COVID restrictions on group gatherings in Alberta

Justice Centre for Constitutional Freedoms argues most deaths and severe cases were among the elderly and therefore it’s difficult to justify the restrictions

Justice Centre for Constitutional Freedoms founder John Carpay: “We’re publicly objecting to new restrictions on Charter freedom to associate.” PHOTO BY NATIONAL POST FILE

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EDMONTON — A conservative legal group is challenging new restrictions on gatherings in Alberta, saying they are a violation of Charter rights to assembly. The province implemented the group gathering restrictions this week as it faces record-breaking numbers of new COVID-19 cases.

The Justice Centre for Constitutional Freedoms, headed by lawyer John Carpay, has been involved in a number of high-profile cases over the years and has recently taken up a number of anti-COVID-restriction causes.

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The Justice Centre is also representing Canada Galaxy Pageants, a beauty pageant for women and girls based in Toronto, against a new human rights complaint made by Jessica Yaniv, a transgender person.

“We’re publicly objecting to new restrictions on Charter freedom to associate,” said Carpay in an interview with the National Post.

As yet, they aren’t filing a lawsuit or anything of that nature — just raising objections.

On Monday, Dr. Deena Hinshaw, the province’s chief medical officer of health, announced private gatherings would be capped at 15 people in Edmonton and Calgary, in response to surges in COVID-19 cases that are putting a strain on the hospital system and leading to the deferral of surgeries and other medical services.

As of Thursday afternoon — before Hinshaw’s daily case update — there were 126 people in Alberta hospitals with COVID-19, 19 of them in ICU. There were 4,793 active cases, and 313 Albertans have died.

Carpay argues most of the deaths and severe cases were among the elderly — the average age of death is 82 — and therefore it’s difficult to justify the restrictions.

Carpay contends the order is based on “cases” of COVID-19, “including thousands of ‘cases’ among people who are not experiencing any symptoms or illness,” he said in a statement about the challenge. He argues today’s cases include completely healthy people who have a positive test, and he disputed the reliability of PCR testing.

Alberta Health Services says the National Microbiology Lab found Alberta’s tests to be 100 per cent accurate.

Hinshaw’s order says voluntary measures in Edmonton haven’t successfully brought the case counts down, necessitating more stringent steps.

Carpay sees it otherwise. “It’s a fundamental freedom that I have as a citizen to invite 16 or 20 people over to my house if I so choose, if we choose to associate with each other,” he said.

“Whether it’s six people or 10 people or 20 people, when the government tells you how many friends you’re allowed or not allowed to have over to your house, that is a very obvious and very direct infringement of freedom of association,” said Carpay.

In her media briefings, Hinshaw has repeatedly pointed out the majority of COVID spread in the province is because of private gatherings, and restrictions protect those who are vulnerable to the disease, as those who are less vulnerable can pass it on to elderly relatives, for example. She has said the current spike in cases is due to families gathering for Thanksgiving celebrations.

Hinshaw has also said the long-term effects of catching COVID-19, even among younger people who aren’t hospitalized, ventilated or dead, are not yet known

In a news release, Carpay said the disease hasn’t killed the early projections of 32,000 Albertans, so it’s not as deadly as initially claimed.