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Calgary judge tosses court challenge seeking end to COVID-19 restrictions

Last Updated Dec 22, 2020 at 7:15 am MDT

CALGARY (660 NEWS) — A virtual courtroom in Calgary was the setting for a constitutional challenge against COVID-19 restrictions in the province, as lawyers claimed that the rules are a violation to the Charter of Rights and Freedoms.

But after a series of somewhat meandering arguments that veered into conspiracy theories at times, a judge summarily tossed the request for an injunction and dismissed their claims.

Hundreds of people were watching the case unfold online, which also led to some unfortunate issues that bordered on the comedic — such as when a man in bathrobe appeared on video while seated in his kitchen.

When the hearing began, lawyers representing the applicants in the case cast doubt on the infection numbers during the pandemic and the effectiveness of tests.

Jeffrey Rath, with Rath & Company law firm, said that the province is also ignoring evidence around alternative treatments for the virus.

Rath accused Chief Medical Officer of Health Dr. Deena Hinshaw for not providing scientific evidence to support COVID-19 restrictions, and that what is being imposed is a breach of the constitution.

James Kitchen is a lawyer with the Justice Centre for Constitutional Freedoms who also helped launch this case, and he repeated some of the previously made points along with suggesting that Alberta was becoming a police state.

Other elements of his argument included statements made in affidavits, including from a pastor and a business owner, that the restrictions amounted to “cancelling Christmas” and that keeping the restrictions in place will cause a major danger to society as a whole.

But at several points throughout these presentations, Justice Anne Kirker had to jump in to make sure they stayed on track. At real debate here was the position from the applicants that removing the restrictions would be better for the public interest than keeping them in place.

Kirker also expressed some concerns that she was essentially being asked to refute the expert advice from Dr. Hinshaw.

She added that previous attempts at this type of action have failed, and there has not been enough time provided to be able to prove their claims of the measures breaching the Charter.

On the other end, Nicholas Parker — the lawyer presenting in favour of the restrictions — only offered a short rebuttal, and said that the other lawyers were offering “an alternative version of the facts” and “an alternative version of the law.”

He added that this is not tyranny, but in fact democracy in action in the middle of the biggest public health crisis in Alberta’s history. He closed by asking the judge to dismiss the claims completely.

After a recess in the afternoon, Kirker returned to the courtroom shortly after 2:30 p.m.

She delivered a 45-minute ruling, which detailed many of the reasons why the applicants failed to meet the standards needed here. She said that prior rulings in the Supreme Court of Canada proved that decisions made by governments, such as the restrictions in the middle of a pandemic, are being made in the public interest.

In addition, she decried some of the statements made by the applicants around the validity of Dr. Hinshaw’s expertise on this matter and said they were unfairly diminishing her role.

In closing, she said the applicants failed to deliver any proper evidence to back up their claims apart from “trivial” statements in the affidavits.

Kirker said that she is satisfied that the measures introduced are aimed at helping people and they do not infringe on the Charter, and while there certainly are some harms associated with the restrictions it would be incorrect to assume these harms are greater than what would happen if there was uncontrolled spread of COVID-19.

At the end, Kirker laid it out bare that the applicants failed to meet the requirements for an emergency injunction in a case like this and that the case should be dismissed.

As the proceedings closed and they were officially adjourned for the day, Parker said “Merry Christmas” to the judge.

At that, somebody watching the case unmuted their microphone and let out a loud “boo” before the line cut out.