Albertans could see pandemic-related charges withdrawn after ruling on Public Health Act breach

Albertans charged with breaking pandemic-related laws could see their charges withdrawn after a Calgary judge ruled the Public Health Act was breached when politicians, instead of the chief medical officer of health (CMOH), made final decisions on health restrictions.

The group funding the legal defence of two people and one church have called on prosecutors to withdraw charges after Court of King's Bench Justice Barbara Romaine's 90-page decision was released Monday.

The court action began in December 2020 when a group of plaintiffs including two churches and a gym owner filed a lawsuit arguing pandemic-related public health measures were contrary to Alberta's Bill of Rights and unlawfully breached Albertans' Charter-protected rights.

Romaine ultimately found former Chief Medical Officer of Health (CMOH) Dr. Deena Hinshaw made recommendations and ultimately implemented the restrictions, but it was cabinet which wielded thefinal decision making power.

• Role of politicians in pandemic restriction decision-making breached Alberta Public Health Act: Calgary judge

Alberta's Public Health Act does not allow for the CMOH to delegate her decision-making powers to politicians.

Now, the Crown must decide what to do with a number of prosecutions that were paused awaiting Romaine's decision.

'No decisions have been made': Crown

That includes Ty Northcott's case. Northcott was charged after organizing and hosting an anti-lockdown rodeo which breached public health orders in May 2021.

Pastor James Coates of Grace Life Church in Edmonton as well as Calgary's Fairview Baptist Church also face charges related to breaches of public health orders.

"With these health orders having been invalidated, it is expected that Crown prosecutors will need to withdraw charges," wrote the Justice Centre for Constitutional Freedoms (JCCF), which funds the legal defences for Northcott.

The Alberta Crown Prosecution Service (ACPS) says it's "in the process of reviewing the decision and assessing its potential implications."

"It will take some time to complete this thorough assessment. At this point, no decisions have been made as to next steps."

'Entirely possible' charges withdrawn

While it's not clear how prosecutors plan to move forward following Romine's decision, Lorian Hardcastle, a law professor specializing in health law at the University of Calgary, says she wouldn't be surprised to see charges dropped.

"I do think it's entirely possible that they may withdraw the charges given the orders weren't validly enacted at the time," said Hardcastle.

• Organizers of 'anti-lockdown' rodeo charged with breaking Alberta health act

Hardcastle says now is the time for the government to fix the Public Health Act, clarifying who is the final decision maker and what is the role of CMOH.

It was an issue she and colleagues called on the Kenney government to deal with during the pandemic.

"They could have fixed the legislation so the law aligned with reality,but instead they didn't," said Hardcastle.

"I think there might have been some politicking there where they wanted to be able to take credit when things were going well but blame Dr. Hinshaw and say these were her decisions when things weren't going well."

Plaintiffs declare victory

If Alberta's Public Health Act had been followed, Hinshaw would have had final say on all decisions.

In May 2022, as part of the court hearing, the judge made public Hinshaw's responses to questions she answered in a private hearing about confidential cabinet discussions.

Hinshaw said she had never been pressured by the premier or cabinet to impose more severe restrictions than she'd recommended.

It may be that if Hinshaw had been the one to make final decisions on public health measures, Alberta could have seen stricter restrictions.

'Seeking compensation'

Still, Jeffrey Rath, a lawyer for one of the plaintiffs, declared victory following the release of Romaine's decision.

"I personally feel vindicated with the decision," said Rath.

"We have been taking the position from the outset that all of the orders of Deena Hinshaw were illegal and Justice Romaine has completely vindicated that position."

Rath says he will continue to pursue justice on behalf of his client, Rebecca Ingram, a gym owner whose business was affected by ordered closures and social distancing rules in 2020 and 2021.

That pursuit, which Rathsays involves "seeking compensation," will likely come in the form of lawsuits.