Ingram v Alberta (Chief Medical Officer of Health), 2023 ABKB 453

Court of King’s Bench of Alberta Citation: Ingram v Alberta (Chief Medical Officer of Health) , 2023 ABKB 453 Date: 20230731 Docket: 2001 14300 Registry: Calgary Between: Rebecca Marie Ingram, Heights Baptist Church, Northside Baptist Church, Erin Blacklaws and Torry Tanner Applicants - and - Her Majesty the Queen in Right of the Province of Alberta and The Chief Medical Officer of Health Respondents _______________________________________________________ Reasons for Judgement of the Honourable Justice B.E. Romaine _______________________________________________________ I.

Introduction [ 1 ] This application involves challenges to certain orders enacted by the Chief Medical Officer of Health for Alberta (CMOH), Dr. Deena Hinshaw, with respect to the Covid-19 pandemic (the “impugned Orders”), both on a constitutional basis and on the basis that the orders were ultra vires the Public Health Act RSA 2000, c. P-37 . [ 2 ] I find that the impugned Orders were ultra vires the Public Health Act . [ 3 ] The Public Health Act requires that decisions with respect to public health orders must be made by the CMOH, or her statutorily- authorized delegate.

The final decisions implemented by the impugned Orders in this case were made by the cabinet of the government of Alberta or by committees of cabinet. While the CMOH made recommendations and implemented the decisions of the cabinet and committees through the impugned Orders, she deferred the final decision making to cabinet. [ 4 ] Although, Dr. Hinshaw was maligned during the pandemic and afterwards as the symbol of the restrictions, she was not in fact the final decision-maker. The delegation of her final decision-making authority to cabinet is not permitted by

section 29 of the Public Health Act .

[ 5 ] However, had the impugned Orders been validly enacted by the CMOH, they would not have been unconstitutional. While they may have infringed certain of the Applicants’ rights under the Canadian Charter of Rights and Freedoms , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 and the Alberta Bill of Rights , RSA 2000, c A-14 , these limitations were amply and demonstrably justified as reasonable limits in a free and democratic society pursuant to

section 1 of the Charter and that they were enacted pursuant to a valid legislative purpose. II. The Hearing Order [ 6 ] On August 6, 2021, the case-management Justice, Kirker J, as she then was, granted an Oral Hearing Order for this application that, among other provisions, set out the following directions: A. The type or nature of the application to be heard at the oral hearing is an Originating Application for the following relief: i. a declaration that all provisions of Alberta’s CMOH’s orders as described in

Schedule “A” of the Originating Application are of no force and effect as they offend sections 1(a), 1 (c), 1 (

e) and 1 (

g) of the Alberta Bill of Rights and are accordingly ultra vires the CMOH and the Alberta Legislature pursuant to

section 2 of the Alberta Bill of Rights ; ii. a declaration that the CMOH orders as described in

Schedule “A” are unlawful and are of no force and effect absent the Alberta Legislature passing that the Public Health Act is notwithstanding the Alberta Bill of Rights ; iii. a declaration that all provisions of the CMOH orders are ultra vires the purpose of the Public Health Act ; iv. a declaration pursuant to section 24(1) of the Charter and rule 3.15(1) of the Alberta Rules of Court (the Rules ) that the CMOH orders are unreasonable because they disproportionately limit: 1.

section 2 of the Charter ; 2.

section 7 of the Charter ; and 3.

section 15 of the Charter ; v. In the alternative, declarations pursuant to section 52(1) of the Constitution Act , 1982 that the CMOH orders are of no force of effect because they unjustifiably infringe: 1.

section 2 of the Charter ; 2.

section 7 of the Charter ; and 3.

section 15 of the Charter ; and vi. a declaration that the CMOH orders issued since March 2020 regarding business restrictions imposed due to Covid-19 are ultra vires

section 29 of the Public Health Act and of no force or effect. [ 7 ] The hearing order summarized the specific issues on which oral evidence would be necessary in

Schedule A to the order, the supplementary particulars dated June 9, 2021. These particulars set out the Applicants’ complete listing of their Charter claims at the time were as follows:

a) Private Residence Restrictions: prohibition that one is not allowed to have a non-resident enter one’s own home (CMOH Order 02- 2021,

part 2,

section 3): [A] person who resides in a private residence must not permit a person who does not normally reside in that residence to enter or remain in the residence.

b) Indoor Gathering Restrictions: the requirements and prohibitions on “indoor gatherings”, where only 10 people are allowed in an indoor public or private place (CMOH Order 02-2021,

Part 3,

section 16) along with the following restrictions: i. only a maximum of 10 people are allowed at a wedding (CMOH Order 02-2021,

Part 3,

section 14); ii. only a maximum of 20 people are allowed at a funeral service (CMOH Order 02-2021,

Part 3,

section 15); iii. wedding and funeral receptions are banned (CMOH Order 02-2021,

Part 3,

section 16). iv. requirement that “faith leaders” limit attendance at worship services to 15% of the total operational occupant load capacity restrictions at a place of worship (CMOH Order 02-2021,

Part 4,

section 18) v. requirement that individuals maintain 2 meters physical distance from each other, including when attending worship services, weddings or funerals (CMOH Order 26-2020, sections 1 and 2); and vi. requirement that individuals cover their face, including when attending worship services, weddings or funerals (CMOH Order 02-2021,

Part 5,

section 23).

c) Outdoor Gathering Restrictions: the prohibitions on “outdoor gatherings” where only a maximum of 10 people are allowed at an

outdoor private place or public place (CMOH Order 02-2021,

Part 3,

section 13), along with the following restrictions; i. prohibition on outdoor group physical activities, including hockey, where 2 meters physical distance from each other person at all times is not possible and more than 10 people (CMOH Order 02-2021,

Part 3,

section 57); ii. prohibition on outdoor group performance activity with more than 10 people (CMOH Order 02-2021,

Part 3,

section 69); and iii. requirement that individuals maintain 2 meters physical distance from each other (CMOH Order 26-2020, sections 1 and 2).

d) Isolation, Quarantine and Visiting Restrictions: the mandatory isolation and quarantining measures that prohibit contact with other people, rely on PCR testing to determine if a person is a confirmed case for when these isolation and quarantine measures are imposed, and the requirement that health care providers are required to ensure compliance with the Order and guidelines, including: i. mandatory isolation of at least 10 days for: • a “confirmed case” of Covid-19 (not defined in the Order, but guidelines indicate that a confirmed case of Covid-19 includes a positive PCR-Test result with no clinical diagnosis) that requires a person to remain at home two meters apart from others, not attend work, school, social events or any other public gatherings, and not take public transit (CMOH Order 05-2020, sections 1, 2); and • a person exhibiting the following symptoms not related to a pre-existing illness or health condition: cough, fever, shortness of breath. runny nose, or sore throat (CMOH Order 05-2020,

section 7); ii. mandatory quarantining for 14 days of a person who is a close contact of a person with a confirmed case of Covid-19; iii. requirement that individuals maintain 2 meters physical distance from each other (CMOH Order 26-2020, sections 1 and 2); iv. requirement that individuals cover their face while attending an indoor public place (CMOH Order 02-2021,

Part 5,

section 23). v. the banning of visitors except for a single essential visitor (unless resident is at the end of life) (CMOH Order 09-2020, sections 1, 3, 5, 7 and 8); and vi. the imposition on health care facilities to limit visitors and carry out the requirements of an Order via visitation standards in guidelines (CMOH Order 09-2020,

section 3, CMOH Order 14-2020,

section 1; CMOH Order 29- 2020,

section 1; CMOH Order 32-2020, sections 1, 9).

e) Business Closure Restrictions: the broad interference, prohibition, restrictions, or mandatory closures of business or whole sectors of the economy, specifically the forced restrictions or closures of gym and associated services, listed in Appendix B.

f) Primary or Secondary School Restrictions: the blanket prohibition, restrictions or mandatory closures of primary or secondary schools based on grade level or age of students. (CMOH Order 01-2020, sections 1-4; CMOH Order 18-2020, sections 6-9; and CMOH Order 19-2020,

section 14).

Schedule A includes a

summary of the Charter rights alleged by the Applicants to have been infringed, together with the following allegations of infringement:

a) Torry Tanner The Private Residence Restrictions, Indoor Gathering Restrictions, and Outdoor Gathering Restrictions interfered with Ms. Tanner’s freedom of religion, freedom of peaceful assembly and freedom of association and liberty and security interest Charter rights. These restrictions prohibited her from having her children and extended family over to her house to celebrate Christmas, a religious celebration for her. This was a prohibition on the gathering together of her family for religious reasons and had a profound impact on her core lifestyle choices and fundamental relationships.

These restrictions were also state action that had an impact on Ms. Tanner’s mental state. The Outdoor Gathering Restrictions also interfered with Ms. Tanner’s freedom of expression, freedom of peaceful assembly and freedom of association, and liberty and security interest Charter rights as they prohibited gathering in large groups to protest government action, an activity that Ms. Tanner strongly believes in. The exposure to censure, restrictions, and prosecution, such as contempt, triggers the violation of these rights.

b) Heights Baptist Church (HBC) The Private Residence Restrictions and Indoor Gathering Restrictions interfered with HBC’s freedom of religion, freedom of expression, freedom of peaceful assembly and freedom of association Charter [rights]. These restrictions prohibit HBC members from acting in accordance with their religious beliefs in a manner that was more than trivial or insubstantial and therefore infringed their freedom of conscience and religion. These restrictions prohibited them from physically gathering all together in one geographic place according to their religious belief.

They also prohibited HBC members from participating in religious practices, such as baptism, serving the Lord’s Supper to one another, and laying of hands on people during times of prayer and commissioning. They also prohibited the gathering together in one’s home to show hospitality, which is a religious belief. The Indoor Gathering Restrictions severely limited a funeral service size and banned a funeral reception; at the time of a death, mourning together as a church while simultaneously celebrating that person’s life with a service and a reception afterwards is a practice that was

prohibited. The masking requirement of the Indoor Gathering Restrictions was an interference with HBC members’ ability to express themselves at a religious service. The Isolation, Quarantine and Visiting Restriction interfered with HBC members’ freedom of religion, freedom of expression, freedom of peaceful assembly and freedom of association as they required physical distancing, the covering of one’s face and the banning of visitors in long term care or heath care facilities except for a single essential visitor.

c) Northside Baptist Church (NBC) The Indoor Gathering Restrictions interfered with NBC’s freedom of religion, freedom of peaceful assembly and freedom of association Charter [rights]. These restrictions prohibited NBC’s members from acting in accordance with their religious beliefs in a manner that was more than trivial or insubstantial and therefore infringed their freedom of conscience and religion.

They could not physically gather all together in one geographic place as their religious belief mandates, they could not participate in religious practices, both structured and unstructured, such as fellowship through mutual edification, participation in ordinances, corporate prayer, corporate singing, and other religious practices that require physical touch among members. The Indoor Gathering Restrictions also interfered with NBC’s freedom of expression. The masking requirement was an interference with the members’ ability to express themselves without interference at a religious service.

d) Erin Blacklaws The Indoor Gathering Restrictions interfered with Mr. Blacklaws’ freedom of peaceful assembly and freedom of association, and his liberty and security interest Charter rights. Under these restrictions which limited funeral size and banned a funeral reception. Mr. Blacklaws was unable to hold a funeral for his father that would accommodate all the friends his father had and allow them and Mr. Blacklaw to have a funeral for his father that properly allowed them to collectively grieve, pay their respects and say good-bye.

e) Rebecca Ingram The Indoor Gathering Restrictions interfered with Ms. Ingram’s freedom of religion, freedom of peaceful assembly and freedom of association, and her liberty and security interest Charter rights. Ms. Ingram was not able to attend Christmas and Easter services at her place of worship; nor was she able to celebrate Sunday service with her church community. The Indoor Gathering Restrictions and Private Residence Restrictions resulted in Ms. Ingram not being able to celebrate Christmas and Easter in her home with extended family and friends.

These prohibitions on religious gatherings of her family and friends had profound impacts on her core lifestyle choices and fundamental relationships. The Indoor Gathering Restrictions and Outdoor Gathering Restrictions interfered with Ms. Ingram’s and her children’s freedom of peaceful assembly and freedom of association, and their liberty and security interest Charter rights. Ms. Ingram and her children were forbidden from socializing with their family and friends, including but not limited to the celebration of various life milestones.

These prohibitions on indoor and outdoor gatherings with her family and friends had impacts on her and her children’s core lifestyle choices and fundamental relationships. The Primary or Secondary School Restrictions interfered with Ms. Ingram’s or her children’s freedom of expressions, freedom of peaceful assembly and freedom of association, their liberty and security interests, and equality Charter rights. The CMOH orders that prohibited certain schools from offering in-class lessons based on grade level or age of student interfered with Ms. Ingram children’s equality rights. Ms.

Ingram was barred from making core lifestyle choices for her children. Ms. Ingram’s children were unable to obtain education in a manner beneficials to them, thus suffocating their freedom of expression, such as the inability to work in groups and express themselves in class, school projects and other educational mechanisms. Her children were unable to see their education friends and peers and were unable to attend gym class to the betterment of their health. The Business Closures interfered with Ms. Ingram’s liberty and security of the person interests.

The measures infringed on her ability to make “core lifestyle choices” in the manner she chose to run her business. Ms. Ingram is currently in possession of a “stranded asset” wherein she was prohibited from operating her business which is continually going deeper into debt. Ms. Ingram was unable to provide for herself and her family through her business and was forced to seek alternative methods of earning. Further, the Business Closures interfered with Ms.

Ingram’s security interests in that they had serious and profound effect on her psychological integrity as she was unable to operate her business, make a living to provide for herself and her family, and there was pressure from the mounting debt of her business. [ 8 ] Each of the Applicants provided at least one affidavit. They were not cross examined on the affidavits, which were entered into evidence. A

summary of each of the affidavits is attached as Appendix A to this decision. III. Preliminary Observations [ 9 ] In Ontario v Trinity Bible Chapel et al ( 2022 ONSC 1344 ), aff’d 2023 ONCA 134 , appeal to SCC refused, a roughly analogous case focusing on the constitutionality of public health orders and regulations, Pomerance J began her analysis with certain preliminary observations. I found this method of setting the context to be helpful, and the following observations are equally relevant to this decision: A.

In this case, as was the case in Trinity , there was considerable evidence from both participant experts and litigation experts with respect to the extent to which Covid- 19 posed an unprecedented threat to public health, including the extent to which the virus could be transmitted. While the individual and expert evidence is different in this case, as are the terms of the impugned Orders, I agree with

Pomerance J that the role of the Court is not that of an “armchair epidemiologist”. Like her, I am neither equipped nor inclined to resolve scientific debates and controversy surrounding Covid- 19. The question before this Court is not whether certain experts are right or wrong. The question is whether it was open to the CMOH or Alberta to act as it did in implementing the impugned Orders and whether there was scientific support for the precautionary measures that were taken: Trinity at para 6.

As I indicated frequently throughout the process, this decision is not a public inquiry into every aspect of Alberta’s handling of the pandemic, nor a challenge to every public health restriction related to the pandemic. B. I agree that the actions of both the CMOH and the government are not to be judged through the lens of hindsight. The question is what was reasonably known and understood at the time each of the impugned Orders were enacted. C. It is clear that the Charter confers on the judiciary the power to invalidate law that is inconsistent with the Constitution.

I agree with Pomerance J that: ... this authority does not... transfer the legislator’s pen into judge’s hands. The judicial lens is one governed by deference, not blind or absolute deference, but a thoughtful deference that recognizes the complexity of the problem presented to public officials and the challenges associated with crafting a solution: Trinity at para 6. D. Given the evidence, I do not doubt the sincerity of the beliefs asserted in this case, and I do not understand Alberta to do so.

As noted by Pomerance J, judicial humility aids in understanding the Applicants’ highly personal beliefs and concerns. I am not sceptical about what they, and all Albertans, suffered through the pandemic, including restrictions on normal, highly important personal autonomy and decision-making. IV. Issues [ 10 ] As the hearing progressed, the nature of the issues clarified. The main issues are as follows: A. Are the impugned Orders ultra vires

section 29 of the Public Health Act ? B. Do the impugned Orders engage and violate

section 2 of the Charter ? C. Do the impugned Orders engage and violate

section 7 of the Charter ? D. Can the infringement of the Charter rights by the impugned Orders be justified in a free and democratic society in accordance with

section 1 of the Charter ? E. Do the impugned Orders offend the Alberta Bill of Rights . If so, does the Alberta Bill of Rights include an implicit internal limit similar to the limit order

section 1 of the Charter ? V. Analysis A. Are the impugned Orders ultra vires

section 29 of the Public Health Act? [ 11 ] Although submissions with respect to this issue are scattered and sometimes inconsistent, the Applicants submit in their final argument that the impugned Orders are ultra vires the purpose of the Public Health Act and are ultra vires

section 29 of the Public Health Act . [ 12 ] The submissions that the impugned Orders are ultra vires on the purpose of the Public Health Act is unpersuasive. The purpose of the Act is the regulation of public health emergencies, including the spread of communicable diseases. The CMOH has the power to manage the spread and impact of a communicable disease by imposing restrictions on businesses and individuals generally, regardless of whether the contamination has not spread to those businesses or individuals.

This is the nature of efforts to contain and prevent the spread of disease. [ 13 ] However, near the end of the hearing, the Applicants, particularly Ms. Ingram, raised a new argument. They submit that the impugned Orders are ultra vires

section 29 of the Public Health Act because they are decisions made by the provincial cabinet and/or committees of cabinet and not by the CMOH. This argument became more focused following the decision of Dunlop J in CM v Alberta , 2022 ABKB 716 . 1.

The decision in CM v Alberta [ 14 ] On October 22, 2022, in a case challenging an order of the CMOH relating to masking in schools, Dunlop J decided that “while the order was issued by the Chief Medical Officer of Health, that order merely implemented a decision of a committee of cabinet, rather than being the Chief Medical Officer’s own decision.” He found that the Public Health Act requires that decisions regarding public health orders be made by the CMOH or an authorized delegate, and that the order in question was based on an unreasonable

interpretation of the Act : para 6. [ 15 ] The applicants in CM alleged that the order was ultra vires, made for improper purposes and violated sections 7 and 15 of the Charter , because it rescinded a previous order requiring masking in schools for students in grades 4 through 12. The applicants submitted that the CMOH had acted unreasonably by lifting the masking restriction.

[ 16 ] It must first be noted that the issues in this litigation arise from a position antithetical to that of the applicants in CM . In this case, the Applicants allege that the CMOH acted unreasonably by imposing certain unnecessary restrictions, in other words, by restrictions that were overly onerous and thus not reasonable. [ 17 ] While the CM decision is not binding on this Court, it is persuasive reasoning. At paras 58-60, it sets out a useful analysis with respect to the issue of whether a specified order of the CMOH complies with the Public Health Act :

Part 3 of the Public Health Act deals with communicable diseases and public health emergencies. As defined in s. 1(hh.1), a public health emergency includes “an epidemic or pandemic disease ... that poses a significant risk to the public health”. The existence of a public health emergency at the time of the Order is not in dispute. When there is a public health emergency, s. 29(2.1) gives ... the Chief Medical Officer of Health... the same powers as in s. 29(2) dealing with communicable diseases. Section 29(2) reads:

(2) Where the investigation confirms the presence of a communicable disease, the medical officer of health (

a) shall carry out the measures that the medical officer of health is required by this Act and the regulations to carry out, and (

b) may do any or all of the following: (

i) take whatever steps the medical officer of health considers necessary (

A) to suppress the disease in those who may already have been infected with it, (

B) to protect those who have not already been exposed to the disease, (

C) to break the chain of transmission and prevent spread of the disease, and (

D) to remove the source of infection; (ii) where the medical officer of health determines that a person or class of persons engaging in the following activities could transmit an infectious agent, prohibit the person or class of persons from engaging in the activity by order , for any period and subject to any conditions that the medical officer of health considers appropriate: (

A) attending a school; (

B) engaging in the occupation of the person or the class of persons , subject to subsection (2.01); (

C) having contact with any persons or any class of persons ; ... Section 29(2.1) (

b) also empowers a medical officer of health to: take whatever other steps are, in the medical officer of health’s opinion , necessary in order to lessen the impact of the public health emergency. (emphasis added). [ 18 ] Justice Dunlop found, based on this wording, that the clear intention of the Public Health Act is that the orders of the CMOH be based on the CMOH’s judgment. He noted that further support for this

interpretation is found in

section 13 of the Act which sets out specific qualifications for a CMOH: para 61. That person must be a physician with either a certificate, diploma or degree in public health or must have training and practical experience that the Minister considers to be equivalent to a certificate, diploma or degree in public health.

The CMOH must also be a fellow of the Royal College of Physicians and Surgeons of Canada. [ 19 ] With respect to delegation of these powers, Dunlop J noted at para 63 that sections 13 and 57 of the Public Health Act permit the CMOH to delegate her powers as follows: 13(3) The Chief Medical Officer may in writing delegate to the Deputy Chief Medical Officer any power, duty or function conferred or imposed on the Chief Medical Officer under this Act or the regulations. ... 57 The Chief Medical Officer may in writing delegate to an employee of the Department any of the powers, duties and functions conferred or imposed on the Chief Medical Officer by this Act or the regulations. [ 20 ] He noted that the public health legislation of other provinces give wider powers of delegation, but that this is not the case in Alberta. [ 21 ] In CM , Alberta submitted that the removal of the school mask mandate was a policy decision for elected officials, and that Dr.

Hinshaw “operationalized that decision”, quoting a Crown record as follows: This process involved the CMOH providing advice and recommendations to elected officials on how to protect the health of Albertans. Those elected officials took that advice as one part of the considerations in the difficult decisions that they had to make in response to COVID-19. The final policy decision-making authority rested with the elected officials, and those policy decisions were then implemented through the legal instrument of CMOH Orders.

In making the CMOH Orders, the CMOH determined how to operationalize each policy decision: para 68. [ 22 ] On the basis of this and other evidence, including testimony from the CMOH, Dunlop J found that the Priorities

Implementation Cabinet Committee made the decision to remove the school mask mandate. [ 23 ] The Court in CM noted Dr. Hinshaw’s statement that “[t]he final policy decision- making authority rested with the elected officials, and those policy decisions were then implemented through the legal instrument of CMOH Orders”: para 82. Dunlop J also noted that the question before him was not whether this was a correct

interpretation of the Public Health Act , but whether the order at issue represented a reasonable exercise of the CMOH’s delegated regulatory authority. He relied on the following statement by the Supreme Court of Canada in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 , at para 10 : The question before us is whether s. 26.2(1) of the Regulation represents a reasonable exercise of the Board’s delegated regulatory authority...

Section 225(1) empowers the Board to make “regulations the Board considers necessary or advisable in relation to occupational health and safety and occupational environment”. This makes it clear that the Legislature wanted the Board to decide what was necessary or advisable to achieve the goal of healthy and safe worksites and pass regulations to accomplish just that... (emphasis added) [ 24 ] The order at issue in CM was a “regulation” as defined in the Regulations Act , RSA 2000, c R-14 and the

Interpretation Act RSA 2000, c I-8 , as are the impugned Orders. [ 25 ] Dunlop J acknowledged the principles set out in Katz Group Canada Inc v Ontario (Health and Long Term Care) , 2013 SCC 64 with respect to interpreting a regulation, including the principle that regulations are presumed to be valid, but found that “it is simply not reasonable to read s. 29 of the Public Health Act ... to permit the Chief Medical Officer to make Orders at the direction of [a cabinet committee]”: para 84. Thus, the order at issue was based on an unreasonable

interpretation. [ 26 ] The Court considered the issue of improper subdelegation. The Crown submitted that “improper subdelegation... does not arise as long as delegates retain decisive involvement in exercising their authority and do not wholly surrender it to some other person or body”, citing JM Keyes, Executive Legislation 2nd ed (Markham: LexisNexis Canada Inc., 2010) at p. 276: para 86. [ 27 ] He found that the evidence before him indicated that Dr. Hinshaw did not meet the test of “decisive involvement”. [ 28 ] In conclusion, Dunlop J found that: [b]oth a reasonableness analysis as set out in Katz and Green and a sub-delegation analysis advanced by the Applicants turn on the

interpretation of the governing statute, in this case the Public Health Act . Applying a broad and purposive

interpretation to both the Public Health Act and the Order and starting with the presumption that the Order is valid, the Order was unreasonable because it was the implementation of [a cabinet committee’s] judgment and decision, and not that of the Chief Medical Officer of Health. The Order was unreasonable because it was based on an unreasonable

interpretation of the Public Health Act as giving ultimate decision-making authority over public health orders during a public health emergency to elected officials, specifically [a cabinet committee]: para 91. [ 29 ] The decision in CM is under appeal. [ 30 ] While the applicants in CM sought an order quashing the impugned order, Dunlop J noted that, as the order had already been rescinded, it would be moot to quash it. Therefore, he issued a declaration that the order was unreasonable: para 132.

He noted at para 132 that “[f]or the benefit of the CMOH and other medical officers of health in considering future public health orders, I agree that I should make a declaration that provides that the Order was unreasonable because it was based on an

interpretation of the Public Health Act as giving final authority over public health order to elected officials.” 2. Whether improper subdelegation has been pled [ 31 ] In attempting to distinguish CM , Alberta submits that, in order to argue improper subdelegation in this case, the Applicants would be required to amend their Amended Originating Application because the pleadings do not allege that Dr. Hinshaw improperly subdelegated her authority to cabinet to make decisions under s. 29 (2.1) of the Public Health Act .

Alberta submits further that the Court should not allow an amendment at this stage of the proceedings, considering that all the evidence has been heard. [ 32 ] Kirker J, the case management Justice, ruling on amendments to the Statement of Claim, made no finding on the issue of whether the pleadings supported a claim that the impugned Orders generally were inconsistent with the purpose of the Public Health Act , or the means designated to achieve its purpose. [ 33 ] She allowed an amendment that alleges that the impugned Orders were ultra vires the purpose of the Public Health Act because they were based on flawed medical literature and they arbitrarily shut down certain businesses. [ 34 ] As a result, Alberta submits that “the only administrative law ground pleading in the Amended Originating Application is that the CMOH Orders are ultra vires the purpose of the Public Health Act because they are “in both purpose and effect “mandatory (i.e. subject to penalty for non-compliance) “rules of general and universal application”. [ 35 ] Alternatively, Alberta submits that if improper subdelegation of authority with regards to the impugned Orders is allowed to be an issue, the evidence in this case does not establish such improper subdelegation.

More specifically, Alberta argues that, unlike the situation in CM , Dr. Hinshaw’s evidence was not that cabinet made the public health decisions, but that Dr. Hinshaw provided recommendations to cabinet and then issued orders that were informed by cabinet’s policy decisions. [ 36 ] Alberta submits that the relevant context makes it clear that Dr. Hinshaw served at the pleasure of the Minister of Health, and that her statutory role was to provide advice and recommendations to the Minister. Thus, Alberta submits that Dr.

Hinshaw’s decision on moving forward with public health measures at the direction of elected officials makes sense. It adds that, in any event, there is no evidence that Dr. Hinshaw “slavishly implemented” cabinet’s decisions (as concluded in CM ) nor that Dr. Hinshaw failed to retain

decisive involvement in exercising her authority because the impugned Orders were based on her judgment. Relying on Ontario Federation of Anglers & Hunters v Ontario (Ministry of Natural Resources) (2002) (ON CA), 211 DLR (4th) 741(ONCA), leave to appeal to SCC refused 29237 (March 27, 2003), Alberta goes one step further to argue that, even if the Premier haddirected Dr. Hinshaw to enact the CMOH orders, it would not be an error for her to comply since the Orders are executive legislation. [37] Ms.

Ingram takes the position that she is not arguing improper subdelegation or fettering, but simply stating that cabinet didnot have authority to issue the CMOH orders and that they were thus ultra vires “within the plain meaning of that phrase”. [38] However, in an Amended Originating Application filed February 8, 2022, the Applicants seek declarations that all provisionsof the CMOH Orders currently in force are ultra vires the purpose of the Public Health Act, and that the impugned Orders issued sinceMarch 2020 regarding business restrictions imposed with respect to Covid-19 were ultra vires

section 29 of the Public Health Act and ofno force or effect. [39] This issue was partially addressed during case management.

In paras 100 and 101 of her April 30, 2021 decision, Kirker Jdeclined to strike the Applicants’ application to amend by adding the words “section 29 of the Public Health Act” to a previouslypleaded claim that the impugned Orders are ultra vires, noting, however, that this claim was limited to whether the Business ClosureRestrictions imposed by the CMOH Orders fall within the delegated order-making authority conferred on medical officers of health bysection 29 of the Alberta Health Act. [40] She also permitted on associated plea for relief in the form of a declaration that the CMOH Orders issued since March 2020are ultra vires and of no force and effect. [41] Kirker J also noted at paras 77-78 of her decision at Ingram v Alberta (Chief Medical Office of Health), 2021 ABQB 343that: I am unable to reach the same conclusion in relation to the claims that the CMOH Orders themselves offend s. 1(

a) of the Alberta Bill ofRights. On a generous reading of the claims asserted in the Originating Application, there is an issue raised in relation to whetherbusiness restrictions imposed by the CMOH Orders fall within the delegated order-making authority conferred on medical officers ofhealth by the legislation; that is, whether the impugned business restrictions are consistent with the purpose of the Public Health Act, andthe means designated to achieve its purpose.

If the challenged business restrictions are found to be within the broad order-making authority delegated to the CMOH by the AlbertaLegislature when, by due process of law, it enacted the Public Health Act, the Applicants acknowledge that there will be no basis toconclude that the CMOH Orders offend s. 1(

a) of the Alberta Bill of Rights. But, I am not satisfied, on the basis of the material beforeme, that I can fairly reach that conclusion now... I find I must dismiss the Respondents’ application to strike the claim that the CMOHOrders offend

section 5.1 (

a) of the Alberta Bill of Rights. [42] While this analysis refers specifically to the Alberta Bill of Rights and the Business Closure Restrictions issues, the broadissue of the delegation authority of the CMOH has been present throughout the litigation, at least with respect to the Business ClosureRestrictions. Now, however, the Applicants seek to amend their pleading to encompass all of the impugned Orders.

The proposedphrasing of the amendment to include all “CMOH Orders currently in place” must fail, however, given this Court’s decision in 2022ABQB 164 that CMOH Orders that have not been pled cannot be included in the scope of the hearing. [43] Therefore, any amendment must be restricted to the impugned Orders. [44] Alberta submits that this Court should not allow this amendment after all the evidence has been heard unless it is satisfied thatall evidence possible on the new issue has been submitted, and that Alberta would not be prejudiced by the new pleadings. [45] Both these conditions have been satisfied.

The original application referred to

section 29 of the Public Health Act in thecontext of whether the impugned Business Closure Restrictions infringed rights under the Alberta Bill of Rights, but the proposed newamendment would state in effect that the impugned Orders are ultra vires

section 29 of the Public Health Act. This proposed amendmentdoes not specifically refer to improper delegation, but it does address whether the impugned Orders are ultra vires. While Ms. Ingram’ssubmissions did not become focused on the delegation issue until the decision in CM was released, the issue was addressed and fullyargued before this Court, and thus no prejudice arises from the lack of specificity. Alberta was fully aware of the issue as it was recentlyraised in CM. If there is any prejudice, it can be remedied by an order of costs. 3. Dr. Hinshaw’s Evidence [46] Dr.

Hinshaw was completely candid in her evidence about the CMOH’s role in the decision- making process. [47] In her affidavit of July 12, 2021, she made the following comments:

a) While the [CMOH] plays a leadership role in Alberta’s public health system within government and giving advice to AlbertaHealth Services, the [CMOH] is not an independent officer of the Legislature like the Auditor General or the Child or Youth Advocate.Rather, as I serve at the pleasure of the Minister of Health, I can be removed from my position at any time. I am therefore subject tooversight within the democratic structure of the Government of Alberta: para 9;

b) I have also had the responsibility to provide advice to the Premier and Cabinet, including the Priorities Implementation CabinetCommittee (PICC) and the Emergency Management Cabinet Committee (EMCC) on the need to declare a state of public healthemergency in response to the Covid-19 pandemic and to discuss and finalize public health measures to address the threat caused byCovid-19.

The Priorities Implementation Cabinet Committee includes the Premier, and the Ministers of Health, Treasury Board andFinance, Justice and Solicitor General, Energy, Transportation, Environment and Parks, Jobs, Economy and Innovation, and Children’sServices. The EMCC includes the Premier, and the Ministers of Health, Treasury Board and Finance, Justice and Solicitor General,

Transportation, Environment and Parks, Education, Indigenous Relations, Children’s Services, Community and Social Services, and Member of the Legislative Assembly of Alberta Mickey Amery: para 22;

c) In my role, I am not directed by elected officials what advice to give , rather I give my advice as I am directed and required to do by the Public Health Act , and the advice that I give is always my best advice based on the best available evidence. As [CMOH], I have done my best throughout the pandemic to monitor the health of Albertans and provide advice and recommendations to protect their health based on the best evidence available: para 28.

d) While my office and the Ministry of Health and AHS have played a lead role in informing the Province of Alberta’s strategy to respond to the COVID-19 pandemic, under the Public Health Act , the Chief Medical Officer of Health is not the final decision-maker . Rather, the Chief Medical Officer provides advice and recommendations to elected officials on how to protect the health of Albertans. Those elected officials take that advice as one part of the considerations in the difficult decisions they have to make in response to COVID-19.

The final policy decision-making authority rests with the elected officials , and these policy decisions are then implemented through the legal instruments of CMOH Orders : para 29, (emphasis added). [ 48 ] Dr. Hinshaw testified that: s. 29 of the Public Health Act enabled the decision-making to take place in the hands of elected officials, the impugned Orders were implemented at the direction of elected officials; the impugned Orders decision-making body changed over time and was either the Cabinet committee.

PICC or the EMCC; “elected officials are [in] the best position to make these decisions” and the impugned Orders were the legal instrument to implement the policy decisions of cabinet. [ 49 ] Alberta does not dispute that the impugned Orders must be “based” on the CMOH’s judgment but submits that the evidence before this Court establishes that the CMOH retained “decisive involvement”. The Crown cited various parts of Dr.

Hinshaw’s direct examination and cross-examination in that regard, but they do not illustrate “decisive involvement”, but rather the opposite: a) “... paragraph 29 of my affidavit talks about the decision- makers being elected officials who decided on the policy decisions that informed the CMOH orders and it is exactly because I am not elected, my role is to provide recommendations.

Elected officials make the decision and then the instrument that was used because of the nature of the emergency we were facing was CMOH Orders implemented at the direction of elected officials” : (emphasis added) trial transcript April 4, 2022 at page 8; b) “... it’s important to remember that the orders were the legal instrument to implement the policy decisions of cabinet...”: trial transcript April 5, 2022 at page 95; c) ...

You’ll see paragraph 29 of page 9 of my affidavit lays out clearly the process that was put in place, given as has been established that the nature of this virus was a novel and significant threat, and so the response was structured such that elected members of cabinet would make policy decisions and those policy decisions would inform the orders of the Chief Medical Officer of Health, so that there was a working together of elected officials and my role as the Chief Medical Officer of Health.

So I would provide recommendations: trial transcript April 6, 2022 at page 83; d) ... when I was speaking about this to [counsel for NBC].

I articulated that as a medical doctor for the population, of course with the volume of people in Alberta it’s not possible to interact with each one of them individually and so when there is a province wide decision to be made, it is the elected representatives of the population in a democratic government who make decisions on behalf of that population and so it’s my job as the, again in this particular position as the doctor for the population of this province to provide my recommendations to those who are the people’s representatives and then to use their policy decisions to inform the subsequent orders to manage the COVID 19 pandemic: trial transcript April 6, 2022 at page 49;

e) Q So your evidence then- so if you’re issuing an order under

section 29 . (2.1) (

b) that you can do whatever you want to ameliorate a public health crisis, it is your evidence that you’re not acting as a decision-maker when you do that? A It’s my evidence that the exercise of that power by the Chief Medical Officer of Health was an exercise that had not been utilized previously and, therefore, a process was set up to ensure that decisions made under that

section were, again, as paragraph 29 on page (INDISCERNIBLE) states, that I provided advice to elected officials who then took that into account, made policy decisions. And so certainly

section 29 gives me as a medical officer of health authority to take action and because of the extraordinary nature of this particular response that process through cabinet was put in place to ensure that again those policy decisions were made by the representatives of the people and then as the individual responsible for that

section 29 order I would take those decisions and with the team implement them through that order. (emphasis added): trial transcript April 6, 2022 at page 117. [ 50 ] Dr. Hinshaw’s evidence was corroborated by evidence of Mr. Long, who indicated that “decisions were made by the political leaders of the province.” [ 51 ] Dr. Hinshaw was a highly credible witness, calm and thoughtful in her evidence and unimpeached by the often intense cross- examination.

It is clear what she thought her role was in the decision-making process. [ 52 ] While that role was not in accordance with her delegation authority, she was consistent and transparent about the process that had been put in place. It is reasonable to assume that this process was decided by government. Dr. Hinshaw was clear, however that she stood by her recommendations, and that she did not sign Orders implementing cabinet decisions that were more restrictive than she judged necessary.

She testified that she would sometimes outline a range of policy alternates to cabinet, all of which were acceptable to her as a matter of public health, but there is no evidence that the policy decisions made by cabinet were ultimately based on her recommendations. The only evidence is that elected officials did not direct her to impose more severe restrictions in the CMOH orders than she had recommended to them (see 2022 ABQB 311 , and the negative answers to the questions that were read into the record). While this may be important for the Charter analysis, Dr.

Hinshaw cannot be said to have retained “decisive involvement “in the process. [ 53 ] Although the principles set out in Katz Group provide that an

interpretations that presumes regulations are valid is favoured when possible, I agree with Dunlop J that it is not reasonable or in accordance with the principles of statutory

interpretation to read

section 29 of the Public Health Act , with its repeated references to what the medical officer of health “considers necessary” or “determines”, to permit the CMOH to make orders at the direction of cabinet, the PICC or any other person or body not specifically authorized as a delegate under the Act . [ 54 ] Alberta submits that in the context of this unprecedented pandemic, consulting with the Minister of Health, as well as cabinet, was clearly proper and essential given that it is for elected representatives to set high level policy.

However, the only legislation that provides cabinet and elected officials with such authority is the Emergency Management Act , RSA 2000, c E-6.8 , which was not used by Alberta in the pandemic. [ 55 ] Alberta submits that the application of fettering to lawmaking powers recognizes that ministries have wide ranging responsibilities, and thus must be capable when acting to establish policy to do so on equally wide-ranging reasons, “notably those of a political nature”. Thus, it submits taking into account the realities of politics and government is not fettering. 4.

Conclusion [ 56 ] While involvement of elected officials in these important decisions may be desirable and even necessary, this involvement should have been structured in such a way as to mitigate the risk of political priorities interfering with the informed and well-qualified judgment of the CMOH, as provided in the Public Health Act , without ignoring the underlying public interest. [ 57 ] In conclusion, I declare that the impugned Orders were ultra vires of the Public Health Act because they were based on a

interpretation of the Public Health Act that gave final decision making authority over public health orders to elected officials. B. The Charter Issues 1. Introduction [ 58 ] Ms. Ingram submits that if the impugned Orders are ultra vires the Public Health Act , it is not necessary for this Court to consider the Alberta Bill of Rights ( ABR ) and Charter issues. However, most of the hearing including nearly all the witness testimony, was directed to the ABR and the Charter issues, and it is important to consider these issues in the event that I am incorrect about the Public Health Act issue. 2.

Previous Cases [ 59 ] I have had the benefit of reviewing a number of thoroughly reasoned decisions with respect to similar constitutional challenges to public health orders enacted in other provinces, both at the application and the appeal level. While these decisions differ in various ways from the case before me, and while they are not binding on this Court, they provide useful analyses with respect to similar constitutional issues. The following is a

summary of the issues decided in these cases that are relevant to the issues before me. [ 60 ] To be clear, however, I have made decisions on the constitutionality of the impugned Orders on the basis of the specific impugned Orders, and on the basis of the evidence led by the parties before me, and not on the basis of any evidence led in the other cases. a. Gateway Bible Baptist Church et al v Manitoba et al , 2021 MBQB 219 [ 61 ] On October 21, 2021 Joyal CJ of the Manitoba Court of King’s Bench delivered a decision cited as 2021 MBQB 219 .

The background to this case was as follows: On March 20, 2020 a province-wide “state of emergency” was declared in Manitoba. From March 2020 into the early summer months of 2021, pursuant to the authority delegated to him under the Manitoba Public Health Act , Manitoba’s Chief Public Health Officer Dr. Brent Roussin issued successive public health orders. The applicants challenged orders made in relation to gatherings in private residences and places of worship, alleging they violated their sections 2(a) , 2 (

b) and 2(c) , 7 and 15 Charter rights. Commencing in March 2020, indoor and outdoor gatherings, including places of worship, were limited to 50 persons. Retail establishments remained open with physical distancing, but theatres and gyms were closed and restaurants and hospitality premises were limited to the lesser of 50 people or 50 per cent capacity. Gathering limits were reduced to 10 people on March 30. Starting April 1, businesses not listed in a

schedule were closed except for online pick-up and delivery. Restaurants were restricted to delivery and take- out. The orders did not place any restrictions on the delivery of health care. Beginning May 22, 2020, the gathering restrictions were relaxed to allow 25 people indoors and 50 people indoors, including in places of worship. By June 21, gathering size restrictions generally increased to 50 people indoors and 100 people outdoors. Many businesses opened to 75 per cent capacity subject to physical distancing requirements.

By July 24, businesses could generally fully reopen to full capacity with physical distancing, unless otherwise specified in the orders. Religious services were permitted up to 30 per cent capacity. These restrictions continued essentially in this form until fall. In fall 2020, the rising number of cases was threatening to overwhelm hospitals. Elective surgeries were delayed so staff could be redeployed. The impugned orders were intended as a “circuit break” to flatten the curve. In January 2021, restrictions began to ease.

Places of worship could hold in-person services with up to 50 people or 10 per cent of usual capacity. At the time of the hearing by Joyal CJ, regular in-person religious services could have up to 100 people or 25 per cent of usual capacity.

November 21, 2020, December 22, 2020 and January 8, 2021 orders prohibited gatherings of more than five persons at any indoor and outdoor public place. Places of worships were closed to the public. An exception was made for funerals, weddings, baptisms and similar religious ceremonies which were limited to five persons not including the officiant. As of December 11, 2020, places of worship were allowed to hold outdoor religious services in vehicles. [ 62 ] Chief Justice Joyal found as follows: i. Rights under sections 2 (a) , (

b) and (

c) of the Charter , freedom of religion, expression, and peaceful assembly were violated (conceded by Manitoba). ii. The restrictions on religious services at places of worship and the restrictions on gatherings at private homes did not interfere with the right to liberty or security of the person contrary to s 7 of the Charter . There was no evidence of serious psychological harm or suffering, and the impugned orders were limited to 13 weeks.

With respect to principles of fundamental justice, he found that the restrictions were not arbitrary because gathering limits were meant to prevent spread and thus minimize death and illness. The restrictions were not overbroad because they did not encompass conduct that posed no risk of transmission. The orders restricted similar types of gatherings, whether religious, or secular. The restrictions were not grossly disproportionate as they were not out of sync with the important objectives of protecting the healthcare system, public health and vulnerable persons. iii.

The closure of places of worship did not discriminate on the basis of religion contrary to

section 15 of the Charter . The distinction in question (between what was permitted to remain open and what must remain closed) was not based on religion. iv. The violations under sections 2(a), (b), (

c) were justified as reasonable limits under

section 1 of the Charter . [ 63 ] Chief Justice Joyal cautioned that “the courts should be wary of second guessing those who are managing a pandemic on the basis of their democratic responsibility or their properly delegated authority, particularly when there may be divergent opinions or schools of scientific thought”: para 281.

It is an often complicated and subtle task for a court to fulfill its role as protector of fundamental freedoms while providing a margin of appreciation to governments attempting to balance complex issues that involve a multitude of overlapping and conflicting interests. [ 64 ] Chief Justice Joyal concluded that “a margin of appreciation” was warranted.

He stated that “where a sufficient evidentiary foundation has been provided in a case like the present, the determination of whether any limits on rights are constitutionally defensible is a determination that should be guided not only by the rigours of the existing legal tests, but as well, by a requisite judicial humility that comes from acknowledging that courts do not have the specialized expertise to casually second guess the decisions of public health officials, which decisions are otherwise supported by the evidence”: para 292. [ 65 ] The applicants did not disagree that the protection of public health is a pressing and substantial objective. [ 66 ] With respect to rational connection, Chief Justice Joyal stated that he had “no difficulty in concluding, based on logic, reason and a common sensical understanding of the evidence ... that the measures taken to limit gatherings, including in places of worship, are rationally connected to the goal of reducing the spread of Covid 19”: para 297. [ 67 ] On minimal impairment, he noted that “the menacing force and unpredictability of [the] pandemic did not provide public health officials with the ‘parlour room luxury’ of prolonged speculative debate nor the comfort of trial and error decision making, let alone the possibility of academic research projects that might confirm whether there existed ‘significantly less intrusive measures’ that might be “equally effective”: para 304.

Joyal CJ understood the applicants’ proposal of focused protection (meaning only placing restriction on those over 60) as insufficient because vulnerable people are integrated throughout society, severe outcomes can occur across a wide spectrum of ages and there is troubling evidence of ‘long haul symptoms’ that persist in infected persons of all ages: paras 305-312. Further “the protection of vulnerable populations cannot occur without also reducing the extent of community transmission overall”: para 314.

As a result, Chief Justice Joyal found the impugned orders fell within a range of reasonable alternatives. [ 68 ] Regarding proportionality, Joyal, CJ found that the restrictions in what was a dire and urgent situation were neither disproportionate nor out of sync with the critically important objections of the restrictions. Courts must consider the Charter rights of others when weighing the effects of the limitation: para 326. He noted the restrictions were only in place as long as needed to alleviate the strain on hospitals.

A 13-week closure did not cause harm that outweighed the urgent need to address the public health crisis. [ 69 ] The decision referred to other issues not relevant to this case. [ 70 ] On appeal, 2023 MBCA 56 , the Applicants argued that the application judge had erred in finding that the impugned Orders constituted justifiable limits on the infringed rights under

section 2 (a) -(

c) of the Charter . An intervener in the appeal submitted that cumulative breaches of the Charter should be considered in the constitutional analysis, and that the principle of constitutional pluralism should form part of the

section 1 analysis, [ 71 ] Manitoba submitted that the appeal was moot, but the Court found that an adversarial context continues to exist, and the parties had fully argued the constitutional issues. The Court referred to the appellate decisions in Beaudoin and Trinity and concluded that the Court should exercise its decision and determine the appeal. [ 72 ] The Appeal Court found no error in the applicant judge’s application of the Oakes test. [ 73 ] The appeal was dismissed. b. Ontario v Trinity Bible Chapel et al , 2022 ONSC 1344

[ 74 ] This decision was released on February 28, 2022. The background context was as follows: On March 17, 2020, the Ontario cabinet declared a state of emergency and ordered the closure of “non-essential” businesses and institutions, including churches and other religious settings. The state of emergency ended around July 24, 2020 and the Reopening Ontario (A Flexible Response to Covid-19 Act) , 2020. S O 2020 c 17 ( ROA ) came into force. Pursuant to

section 2 of the Act , certain regulations made previously continued, including restrictions on social, commercial, and religious gatherings. On April 27, 2020, the Framework for Reopening the Province was released, which set out criteria for loosening emergency measures. On November 3, 2020, the Keeping Ontario Safe and Open Framework was released, which introduced a modified tiered approach intended to scale restrictions up and down.

On December 26, 2020, Ontario placed the entire province under a “shutdown” that severely restricted many of the activities of Ontarians, including their attendance at places of worship, which were limited to a hard cap of ten persons indoors. Retail businesses were granted exemptions, provided they limited the number of persons inside to 25 percent of their building capacity.

On or about January 12, 2021, Ontario was once again placed under a state of emergency, which lasted until approximately February 9, 2021, and the provisions of both previous initial emergency directives and the ROA applied during this period. The ROA then continued in force, with various regions of the province moving in and out of certain “zones”. Effective March 15, 2021, Ontario amended the regulation that imposed a ten-person cap and replaced it with a 15 percent capacity limit. On April 7, 2021, the Province declared a third state of emergency.

On May 29, 2021, the Ontario government announced its three-step Roadmap to Reopen, and the province-wide stay at home order was lifted in June, 2021. [ 75 ] Justice Pomerance opined that her role: ...is not that of an armchair epidemiologist. I am neither equipped nor inclined to resolve scientific debates and controversy surrounding Covid 19. The question before me is not whether certain experts are right or wrong.

The question is whether it was open to Ontario to act as it did and whether there was scientific support for the precautionary measures that were taken: para 6. [ 76 ] Justice Pomerance found that: i. the Ontario restrictions on the size of religious gatherings interfered with the fundamental guarantee of freedom of religion in

section 2(

c) of the Charter , but ii. the limitations of freedom of religion were reasonable and demonstrably justified in a free and democratic society under

section 1 of the Charter . [ 77 ] She found that the measures should be upheld under

section 1, stating that “[t]his mix of conflicting interests and perspectives, centred on a tangible threat to public health, is a textbook recipe for deferential review”: para 128. [ 78 ] On whether there was a pressing and substantial objective, Pomerance, J stated that “[i]t borders on the trite to observe that human life is sacred, and that public health and safety is important.

Of similar import is the viability of the health care system relied upon by all residents in the province”: para 132. [ 79 ] On rational connection, she stated that “[b]ecause Covid 19 is transmitted from person to person, restricting person- to-person contact logically reduces the risk of transmission. The connection between religious gathering restrictions and the objective is fortified by consideration of the activities at religious services”: para 136. [ 80 ] On minimal impairment, Pomerance J highlighted that “Ontario is not required to justify its choices on a standard of scientific certainty.

That would set an impossible burden, particularly where, as here, the social problem defies scientific consensus”: para 144. She noted the precautionary principle is engaged in matters of public health: para 145.

She found that Ontario acted on the best scientific information available, and a “precautionary stance was favoured over a ‘wait and see’ approach, lest lives be lost in the interim”: para 146. [ 81 ] Pomerance J. rejected any comparison to retail stores, “as the retail experience does not contemplate the same potential for infectious droplets to be passed from person to person”: para 153. [ 82 ] Ontario conceded that limiting religious gatherings to ten persons or less infringed

section 2(

a) of the Charter , however it argued that other less stringent restrictions did not. [ 83 ] Justice Pomerance acknowledged that “for these claimants, there is a qualitative difference between a small and large religious service. The synergy of the religious service fuels a collective consciousness”: para 104. She found it was “not for the court to dictate to the claimants how many attendees should suffice for a meaningful spiritual experience”: para 112. [ 84 ] Thus, Justice Pomerance “conclude[d] that the numerical or percentage capacity limits imposed on religious gatherings - either indoors or outdoors - did infringe

section 2(

a) of the Charter “and the existence of alternate methods for the delivery of religious services [did] not attenuate the infringement, given the religious significance of the collective in-person experience”: para 113. [ 85 ] She found it unnecessary to conduct separate analyses under subsections 2 (b), (c), and (

d) as “[t]he interests protected by those subsections are in this case, wholly subsumed by the

section 2(

a) analysis”: para 115. [ 86 ] She further noted that Ontario never completely banned religious gatherings (neither did Alberta). At moments of highest risk

“religious institutions were permitted to have upwards of ten persons together to facilitate virtual or drive-in services”: para 155. She concluded the restrictions were within a range of reasonable alternatives. [ 87 ] On proportionality, Justice Pomerance, like Chief Justice Joyal, noted that the interests and Charter rights of all Ontarians were implicated: para 160. “Covid 19 has its own communal character whereby individual choice can have community consequences”: para 160.

She asserted that “[t]he fact that people die every year from other conditions, such as influenza, does not set a bar of tolerable mortality”: para 164. Pomerance J wrote: ...no one would rationally suggest that a certain number of preventable deaths should have been allowed in the name of religious freedom, or that the lives of certain individuals - those who are over 60 or have underlying health conditions - have less intrinsic value than religious observance. These are false dichotomies. The sanctity of human life is not reducible to crass comparisons.

The salutary benefit flows from the prospect of saving lives and preventing serious illness, even if we cannot precisely quantify how many lives were saved: para 164. [ 88 ] The Court added that the “deleterious effects of the gathering limits were mitigated by the fact that other means of religious expressions were available”: para 167. Religious institutions were required to make sacrifices to protect public health, “but no more than was reasonably necessary and for no longer than was reasonably required”: para 169.

Full accommodation of religious freedom “would have represented a wholesale abdication of government responsibility to act in the public interest”: para 172. [ 89 ] In Ontario (Attorney General) v Trinity Bible Chapel , 2023 ONCA 134 , the Ontario Court of Appeal dismissed an appeal of the decision. Pomerance J’s finding that

section 2 (a) , of the Charter was infringed was not appealed, but the appellants challenged her treatment of the expert evidence, her decision not to rely on “hindsight” evidence in evaluating the regulations, her decision not to consider the other alleged Charter breaches, and her conclusion that the regulations were justified under

section 1 of the Charter . [ 90 ] The Court found that Pomerance J was entitled to consider the evidence of a participant expert, the Associate Chief Medical Officer of Health. The Court found no reason to interfere with her weighing of the expert evidence, noting Justice Pomerance’s comment that: As noted earlier, it is not my role to choose between dueling experts on the science of Covid 19. The question is whether it was reasonable for Ontario to do what it did, on the basis of the evidence available to it at the relevant time. The views expressed by Dr. McKeown and Dr.

Hodge best reflect what was known and understood by Ontario when it made its decisions. (emphasis added): para 49. [ 91 ] The Court found that Pomerance J did not err by declining to evaluate the challenged regulations through the lens of hindsight. [ 92 ] She reiterated that the dispute before her related to the scientific and policy understandings at the time the regulations were enacted.

Additionally, she was highlighting the importance of context in the analysis, particularly the absence of scientific certainty regarding Covid 19.: para 55. [ 93 ] The Court referred to the British Columbia Court of Appeal’s decision in Beaudoin v British Columbia with approval, which it noted adopted and amplified Justice Pomerance’s perspective on hindsight evidence. [ 94 ] The Court refused to find an error in the fact that Pomerance J declined to conduct separate analyses with sections 2(

b) and (

d) of the Charter . Sossin JA, writing for the Court, noted at paras 67 and 71 that: The alleged infringement of the appellant’s s. 2 (

a) rights accounted for their related rights to express their religious beliefs, assemble for the purpose of engaging in religious activity, and associate with others who share their faith. While the appellants also suggest that certain expressive activities took the form of political protest protected under s. 2(b), those activities were directly related to the government restrictions on religious gatherings. The motion judge noted that her finding that

section 2 (

a) was infringed accounted for these various manifestations of religious freedom, concluding “[t]here is no value added by repeating or repackaging the analysis under different constitutional headings...”. Therefore, where an examination of the factual matrix reveals that one claimed s. 2 right subsumes others, it is not necessary to consider the other s. 2 claims (though of course, there is no bar to a judge doing so).

I should add that this approach is particularly apposite in the s. 2 context where the rights are related fundamental freedoms, whereas it may have less application across rights (for example, as between ss. 2, 7 and 15 rights). [ 95 ] He also disagreed with the submission that the Oakes test changes where there are multiple breaches of the Charter , noting that “no matter which s. 2 right is used to label the interference, all deleterious effects will be considered in the proportionality analysis”, agreeing in this respect with the Court in Beaudoin that “it goes against the tide of jurisprudence that has declined to determine every alleged Charter breach”: paras 76 and 80. [ 96 ] The appellants argued that the motion judge was “excessively deferential” to Ontario in her Oakes analysis and erred at every step of the test. [ 97 ] The Court did not agree, and cited conclusions on minimal impairment upheld by courts across Canada that have considered similar restrictions at the stage of the Oakes analysis: paras 121-125. c.

Beaudoin v British Columbia , 2021 BCSC 512 [ 98 ] This decision was released on Mach 18, 2021. The context of the decision was as follows: On March 18, 2020, the Minister of Public Safety issued a declaration of a state of emergency in British Columbia, which was extended

and consistently kept in place to the date of the hearing. On March 16, 2020, the Chief Medical Health Officer Dr. Bonnie Henry issued the first Gathering and Events (G&

E) Order, prohibiting gatherings in excess of 50 people. On March 17, 2020, Dr. Henry declared the transmission of the virus to be a regional event as defined by s. 51 of the British Columbia Public Health Act . The issuance of the Notice of Regional Event triggered Dr. Henry’s ability to exercise emergency powers under

Part 5 of the Act . By mid-October 2020, diagnosed case numbers began to accelerate rapidly. On November 7, 2020, Dr. Henry imposed further restrictions on gatherings in the Vancouver Coastal and Fraser Health regions. The surge of cases continued and on November 19, 2020, the November 7, 2020 restrictions were extended province - wide, resulting in a temporary ban on all in - person gatherings, including religious services. On December 2, 2020, Dr. Henry issued a written G&E Order that repealed and replaced her November 10, 2020 and her November 13, 2020 orders with respect to COVID-19 regional measures.

The December 2, 2020 Order prohibited all events except those enumerated in the order. Weddings, baptisms and funerals were permitted, though with a maximum of 50 people and specific guidelines to reduce the risk of transmission. The December 9, 2020 Order reduced the maximum attendance for these events to 10 people and permitted individual attendance at a place of worship for the purpose of prayer or quiet reflection. This order also permitted drive-in events. Orders on December 15 and 24, 2020 extended these same restrictions, but specified that drive-in events could have no more than 50 vehicles present.

The January 8, 2021Order maintained the prohibition on in- person religious services and the previous amended limitations. [ 99 ] Chief Justice Hinkson dismissed a declaration sought by three churches and their spiritual leaders that time-limited orders imposed by the Public Health Act during the second wave of the Covid-19 pandemic that prohibited in-person gatherings for religious worship violated their freedom of religion, expression, assembly, association, liberty, and equality rights under

section 2(a) -(d), 7 , and 15(1) of the Charter . [ 100 ] He found that, although the impugned orders limited the applicant’s

section 2 rights, those limits were justified under

section 1 of the Charter . He found that the orders were not an unreasonable exercise of administrative authority and should not be quashed. [ 101 ] Hinkson, CJ found that the impugned orders were based on a reasonable assessment of the risk of transmission of the virus during religious and other types of gatherings, and that Dr. Henry had turned her mind to the impact of her orders on religious practices and governed herself by the principle of proportionality. [ 102 ] Chief Justice Hinkson held that “[i]n the areas of science and medicine, Dr.

Henry is entitled to deference and the appropriate standard of review of such matters is that of reasonableness”, rejecting the applicants’ argument that the standard should be correctness given that the substance of the matter was a Charter challenge: paras 122-124. [ 103 ] The respondents had conceded that the impugned orders engaged sections 2(a) (b) (

c) and (

d) of the Charter . With respect to

section 7, the applicants argued that the right to life might be described as a depreciation in the value of the lived experience: para 180. Chief Justice Hinkson, agreed with the respondents that the right to life protected by

section 7 does not extend as far as the religious petitioners suggested: para 184. [ 104 ] Given the concessions of the respondents and his findings with respect to the religious petitioners’

section 2 Charter rights, Chief Justice Hinkson found it unnecessary to expand the jurisprudence relating to

section 7 and made no findings with respect to

section 7. [ 105 ] For the same reason, Chief Justice Hinkson found it unnecessary to make a finding with respect to

section 15. [ 106 ] Chief Justice Hinkson determined the Doré test should apply to his analysis, as the impugned orders were more akin to administrative decisions than a law of general application: para 218. [ 107 ] Chief Justice Hinkson noted that “[t]he constitutional importance of combating the Covid-19 pandemic has been stated by courts across the country”: para 224. [ 108 ] He rejected an intervenor’s submission that religious gatherings presented identical risks to school, gymnasium, support group or restaurant settings: para 226. The key distinguishing factors relied on by Dr.

Henry in restricting religious gatherings included the ages of the participants, the intimate setting of religious gatherings, and the presence of communal singing or chanting: para 226. The Chief Justice concluded that “[a]s the religious petitioners concede that public health is a sufficiently important objective that it can justify limits on Charter rights. [There was] no basis upon which to find that the impugned G&E Orders are arbitrary in the broad sense”: para 228. [ 109 ] Applying Vavilov guidance on reasonableness review, the Chief Justice found that Dr.

Henry’s orders fell within a range of reasonable options: para 246. [ 110 ] This decision was appealed, and the appeal was dismissed: Beaudoin v British Columbia (Attorney General) , 2022 BCCA 427 , leave to appeal requested. [ 111 ] Mr. Beaudoin appealed the chambers judge’s declaration that the impugned orders were of no force and effect to the extent they infringed the right to organize and participate in outdoor protests on the basis that the declaration did not go far enough.

His appeal was dismissed as the issue had become moot. [ 112 ] With respect to the church appellants, the Court of Appeal held that a Doré analysis was the appropriate framework in that case, that the chambers judge was not obliged to consider the

section 15 claim in the circumstances, and that the ban on in-person gatherings

for religious worship fell within a range of reasonable outcomes and proportionately balanced the appellants’ freedoms with theattainment of critically important public health objectives.

The Court found that the result would have been the same under an Oakesanalysis. [113] The Court of Appeal noted that “[i]t is important to extract from the record what was known by the [public health officer] whenthe impugned decisions were made”, noting with approval the comments of Pomerance, J in Trinity with respect to hindsight analysis:para 68. [114] The Court also cited with approval the comments of Joyal, CJ in Gateway and Pomerance, J in Trinity on the subject of judicialhumility in the public health context, noting at para 150 that in that context, “courts have consistently acknowledged the specializedexpertise of public health officials and the need to judicially review decisions with a degree of judicial humility.” 3.

Infringement of Rights a. Concessions [115] Alberta makes the following concessions with respect to whether the impugned Orders infringed any of the Applicants’ Charterrights: i. the HBC and the NBC have demonstrated infringement of their

section 2(

a) rights with respect to the IndoorGathering Restrictions; ii. the Private Residence Restrictions and the Indoor Gathering Restrictions infringed Ms. Tanner’s

section 2(c)and (

d) rights; iii. the Indoor Gathering Restrictions infringed the Churches’

section 2(

c) and (

d) rights; iv. the Isolation, Quarantine and Visiting Restrictions and the Indoor Gathering Restrictions violated Mr.Blacklaws’

section 2(

c) and (

d) rights, and v. the Indoor Gathering Restrictions and the Outdoor Gathering Restrictions violated Ms. Ingram’s

section 2(c)and (

d) rights, except for the rights she claims on behalf of her children. [116] The following analysis only addresses claims of infringement that have not been conceded by Alberta. b. Do the impugned Orders engage and violate

Section 2 of the Charter with respect to Ms. Tanner, HBCand Ms. Ingram? i.

Section 2 (a) [117]

Section 2 (

a) of the Charter provides the right to freedom of conscience and religion. The purpose of this freedom is to allowevery individual: ... [to] be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that suchmanifestations do not injure his or her neighbours or their parallel rights to hold and

[…]