Information about COVID-19 discussions can be made public, Alberta judge rules

By Ian Burns

Law360 Canada (May 3, 2022, 4:24 PM EDT) -- Details about discussions between Alberta’s chief medical officer of health and the provincial cabinet over COVID-19 restrictions can be made public, a judge has ruled.

The decision from Court of Queen’s Bench Justice Barbara Romaine is part of a constitutional challenge to several public health orders issued by Dr. Deena Hinshaw in response to the pandemic. As part of her cross-examination in the case, Hinshaw was asked by plaintiff counsel “can you tell us what recommendations you made to Cabinet that were either ignored or where you were given instructions opposite to your recommendations?” The province immediately objected, providing a certificate from former Justice Minister Sonya Savage which said disclosing the information “could impede the free flow of future Cabinet discussions, thereby negatively impacting the democratic governance of the province of Alberta.”

Justice Romaine posed several questions to Hinshaw in a private hearing, inquiring whether the province ever directed her to impose more severe restrictions than what was recommended and whether recommendations were ever made to cabinet that restrictions be lifted or loosened. And she then ruled the public interest in disclosing Hinshaw’s answers outweighed the public interest in keeping the evidence confidential, and ordered they become part of the hearing record (Ingram v. Alberta (Chief Medical Officer of Health) 2022 ABQB 311).

“This is an important case involving the constitutionality [of health orders] that the plaintiffs allege infringed their Charter rights,” she wrote in her decision, which is dated April 26. “A determination of whether or not Cabinet directed Dr. Hinshaw to impose restrictions more rigorous than her recommendations or targeted more specifically on specific groups of citizens is necessary to ensure that the case can be adequately and fairly presented to ensure that this court is able to conduct a meaningful analysis of potential Charter breaches.”

The questions and answers “do not reveal disagreements among ministers or the views of individual ministers,” Justice Romaine wrote.

“They do not directly reveal considerations put before Cabinet, other than to reveal whether or not Cabinet directed Dr. Hinshaw to impose limitations in the impugned orders that were more restrictive than she had recommended,” she wrote. “They do not reveal the specifics of her recommendations. The content of her answers thus weighs in favour of disclosure.”

The evidence portion of the trial is now complete, with a hearing on final arguments not yet scheduled. A spokesperson for Alberta Justice said in an e-mail that it would be inappropriate for the Ministry to comment on anything related to the case, including Justice Romaine’s decision or the possibility of an appeal, while it remains before the courts.

Counsel for the plaintiffs did not respond to requests for comment.

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