Court injunction banning peaceful protests tramples Charter freedoms

The affidavit that Dr. Deena Hinshaw filed in the Alberta Court of Queen's Bench on May 6, 2021, in support of a secret injunction hearing to ban peaceful outdoor gatherings, is as devoid of facts and context as her fearmongering news conferences.

The public health official earning over $330,000 per year, who now exercises unchecked power to violate the Charter rights and freedoms of Albertans, seems blissfully unaware of her job title: Chief Medical Officer of Health.

As the World Health Organization explains it: "Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. … The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition."

Dr. Hinshaw's Charter-violating public health orders are bad for Albertans' health. There is abundant scientific evidence telling us that our health is harmed by loneliness and isolation; by limiting our social interactions to a two-dimensional computer screen; by excessive alcohol consumption; by staying indoors; by closing gyms; by poverty; by depression and anxiety; by delayed cancer diagnosis; and by lack of hugs and other physical contact.

Dr. Hinshaw's orders expressly outlaw things that are good for our health, like singing; socializing; seeing friends in-person; playing team sports; watching a live performance; and watching sports with other people. You don't need to be a doctor to know that our health is harmed by prohibiting fun, meaningful, healthy and joyful activities, and subjecting them to $2,000 fines.

Dr. Hinshaw disregards her actual title, and instead acts as Chief Medical Officer of COVID, or "Chief Medical Officer to stop COVID at all costs, no matter how much harm is inflicted on Albertans."

Dr. Hinshaw states that her affidavit is based on a "rigorous framework of evidence," but this evidence was not made available for the May 3 trial of Pastor James Coates, accused of violating her public health orders. Dr. Hinshaw has yet to explain (or to testify) as to how she arrived at the fearmongering prediction she made in April of 2020, when she claimed that, even with lockdown measures in place, as many as 32,000 Albertans could die of COVID. The media unquestioningly spread her gospel of fear, a fear that still forms the basis of government policies today.

Instead of 32,000 Albertans dying of COVID as suggested by Dr. Hinshaw, we have just over 2,100 deaths in over 14 months. This in a province of 4.4 million people, where about 27,000 people die each year. Every death is sad. The 25,000 or more non-COVID deaths in 2020 are as sad as the COVID-related deaths. All who died deserve the honour and basic respect of a funeral with more than just ten people in attendance.

Healthy people under the age of 65 "can experience adverse health outcomes" from COVID, warns Dr. Hinshaw. But she fails to mention that 62 percent of COVID-related deaths are amongst people aged 80 and up, and that only 2.6 percent of Albertans dying with COVID were under the age of 50.

Dr. Hinshaw doesn't mention that about 78 percent of those dying with COVID have three or more serious comorbidities like cancer, stroke, and diseases of the heart, lung, kidney and liver. She is silent about the fact that only 2.6 percent of Albertans dying with COVID had no comorbidities. Unlike cancer, strokes, suicides, car accidents and drug overdoses, COVID has a negligible impact on population life expectancy.

The median infection survival rate from COVID is 99.77 percent. While COVID is more serious than the annual flu, it is nowhere close to the Spanish Flu of 1918-20, to which Alberta Premier Jason Kenney has publicly compared to COVID. Of the 309,000 Canadians who died in 2020, about 5 percent died with COVID. Death rates in Canada in 2020, considering population growth and the aging population, were in line with death rates in 2019, 2018, 2017 and prior years. Not what you would expect from an unusually deadly killer.

COVID is real, and fear of COVID is exaggerated. A virus that has only a negligible impact on life expectancy is not something that should dominate, let alone control, every aspect of our daily lives and how we live them. Dr. Hinshaw and her counterparts in other provinces have failed to protect the vulnerable 10 percent of Canadians: elderly people already sick with serious health conditions. For the remaining 90 percent of Canadians, the chance of dying in a motor vehicle accident is greater than the chance of dying from COVID.

Dr. Hinshaw's court-filed affidavit, like her news conferences, says nothing about Albertans' overall health, or how her measures are harming it. Rather, her affidavit speaks only of COVID, while failing to mention its 99.77 percent survival rate and its negligible impact on life expectancy.

Yet on May 6, 2021, Alberta Health Services (AHS) applied for an injunction against Whistle Stop Café in Mirror, Alberta, to give police new powers to arrest and detain, without due process, any Albertan who exercises her or his Charter freedoms in the face of unconstitutional health orders. The Charter protects our freedoms of speech, association, religion, conscience and the right to gather peacefully to express our opinions and concerns.

AHS sought and obtained an injunction without providing any notice to Whistle Stop Café and its counsel, Chad Williamson. Mr. Williamson represented Whistle Stop on a previous injunction application that was ultimately withdrawn by the Alberta Government (with court costs awarded to Whistle Stop). The May 6 hearing was held in secret, without media or members of the public being notified of it, and without Whistle Stop Café defence counsel present. There was no opportunity to question Dr. Deena Hinshaw on the affidavit she swore, though cross-examinations will likely take place in future.

The injunction issued by Associate Chief Justice John Rooke applies not only to Whistle Stop and its owners, but to all Albertans who have read the injunction. It is frightening for Dr. Hinshaw and AHS to have secretly applied to prevent peaceful protests in Alberta. Secret hearings without notice, and the resulting oppressive court orders, are more consistent with the reign of Stalin than with a free and democratic society.

Omitting relevant information from her affidavit, in order to portray COVID as an unusually deadly killer, is not telling the whole truth. This fails to meet the standard that is required when making a court application at a secret hearing, without notice to the other side.

By way of this injunction, AHS has succeeded in having the Court act as a police force, departing from the court's duty to protect citizens' Charter rights and freedoms. Alberta's police forces are now trumpeting Justice Rooke's hastily issued injunction as pretext for immediately arresting anyone engaging in dangerous and deadly activities like playing hockey outdoors, spending time with friends and family in person, and peacefully protesting outdoors against government violations of our Charter freedoms.

Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms, which is suing the federal government and provincial governments to end lockdown measures.