Judge rules Hinshaw responses about cabinet direction and health orders should be public record

An Alberta judge has decided responses from the chief medical officer of health to questions about direction from cabinet should be made public as part of an ongoing court challenge on the constitutionality of Alberta's public health restrictions.

Lawyers for plaintiffs in the trial have argued their Charter rights were infringed by public health restrictions put in place to manage the COVID-19 pandemic.

Court documents list the plaintiffs as Baptist Churches based in Calgary and Medicine Hat, a fitness centre operator and two other individuals.

Defendants are the Province of Alberta and Chief Medical Officer of Health (CMOH) Dr. Deena Hinshaw.

The court challenge is also looking to determine if the provincial cabinet committee in charge of public health orders directed Hinshaw to impose restrictions that were more rigorous than her recommendations or targeted on specific groups of citizens.

Lawyers involved agreed to allow Justice B.E. Romaine to ask Hinshaw three questions in a private hearing.

Those questions were:

• Did the Premier and Cabinet, including the PICC and EMCC (the "Cabinet") ever direct you, Dr. Hinshaw, to impose more severe restrictions in your CMOH orders than you had recommended to them?
• Did Cabinet ever direct you to impose more severe restrictions on particular groups such as churches, gyms, schools, and small businesses than you had recommended to them?
• Did you ever recommend to Cabinet that restriction should be lifted or loosened at any period of time and that recommendation was refused or ignored by Cabinet?

Crown prosecutors tried to shield Hinshaw's responses, claiming "public interest immunity" and arguing discussions with cabinet regarding COVID-19 pandemic policy must be kept confidential.

However, in Romaine's April 26 decision, there is a countervailing public interest in disclosing Hinshaw's responses to the three questions that outweighs keeping it out of the public.

"The answers to the questions will therefore become part of the hearing record," reads the decision.

Jeffrey Rath, a lawyer for one of the plaintiffs, called it "a landmark decision."

"And I think that it's really heartening and refreshing to see that the courts are actually putting weight on the public interest to transparency with regard to decisions that have affected and destroyed so many lives in the province of Alberta," he said.

The decision will also have "very far reaching implications" for cabinet confidentiality in Canada, said Rath.

"The decisions that we're challenging are not decisions of Deena Hinshaw anymore, and that the judges seem to accept the Deena Hinshaw testimony, that all of the decisions that are being challenged, are in fact, cabinet decisions, when cabinet itself was trying to hide behind Dr. Hinshaw, and pretend that these were medical decisions," he said.

"So I think that whole chestnut can be thrown out the window."

Rath added he still has questions around whose idea it was to announce 'The Best Summer Ever' in 2021.

"Was that a Deena Hinshaw order or was that Jason Kenney for political reasons, you know, trying to have a Calgary Stampede and go out and flip pancakes in the middle of a pandemic, which may or may not have led to the Delta wave," he said.

"We need answers to these questions. The whole process to us seems like it's been very ad hoc, they're making it up as they go along."

Both Hinshaw and Health Minister Jason Copping declined to answer any questions on the judge's decision.

Read the ruling below: