Judge Rules Alberta Politicians Were ‘Unreasonable’ in Lifting Mask Mandate

An Alberta judge has ruled that the provincial government's February public health order removing mandatory masking for students in schools was “unreasonable" because the decision was not made by the chief medical officer of health. (The Canadian Press/Graham Hughes)

EDMONTON—An Alberta judge has ruled that the provincial government’s February public health order removing mandatory masking for students in schools was “unreasonable” because the decision was not made by the chief medical officer of health (CMOH).

In an Oct. 26 decision, Court of King’s Bench Justice Grant Dunlop stated that the Public Health Act required CMOH Dr. Deena Hinshaw to make these decisions, not a government cabinet committee.

Five families that believe their children are immuno-compromised, along with the Alberta Federation of Labour (AFL), a provincial trade union representing teachers, requested a judicial review of the CMOH order rescinding masks and a government letter advising school boards they could no longer impose masking on children.

The Alberta government announced that masking requirements for children in schools and on school buses would be removed effective Feb. 14.

On Feb. 8, Education Minister Ariana LaGrange wrote to schools advising, “School authorities cannot deny their students access to in person education due to their personal decision to wear or not to wear a mask in schools.”

LaGrange said it was time to relax COVID-19 protocols.

“When it comes to our children, there are many important factors to consider when they attend school, including seeing the facial expressions of teachers and classmates, having the ability to be animated and joyful, and considering the mental health impacts that come along with public health measures such as masking,” she wrote.

Justice Dunlop ruled that removing mandatory masking was a decision of the government’s priorities and implementation cabinet committee rather than Dr. Hinshaw’s “own decision.” He added that the minister’s letter to school boards was “not a regulation” and caused “widespread misunderstanding.”

“The clear intention of the Public Health Act is that the orders of the Chief Medical Officer of Health be based on that officer’s judgment,” wrote the judge in his decision.

The parents raised a Charter of Rights and Freedoms legal argument, alleging that lifting the mask mandate discriminated against disabled children and deprived them of life, liberty, or security.

Dunlop did not agree on this point, ruling the parents and the AFL had not proved any charter rights were violated, as there was no evidence before the court that the children were at increased risk of severe outcomes or complications from COVID. He noted that the parents swore affidavits as to their own understanding of their children’s vulnerability but that this was not admissible without expert medical evidence that could be cross-examined.

AFL president Gil McGowan praised the decision and told reporters the court made it clear the CMOH must make public health decisions and could not delegate that decision-making. He added that teachers “were afraid to be at work without mask mandates in place.” McGowan told the Calgary Herald that the ruling suggests school boards can choose to adopt their own protections again, leaving open the possibility of a return to mandatory masking in schools.

The government has said it is reviewing the decision.

Savannah Johannsen, a spokesperson for Alberta Education, told The Epoch Times in an email that the applicants “failed to prove there was a Charter breach. Evidence did not establish the applicants children, or any other children were at increased risk of severe outcomes or complications from COVID-19.”

“The Government of Alberta moved forward with a plan to safely lift public health measures, in line with other provinces and other countries, based on the best available evidence, including advice from the Chief Medical Officer of Health,” Johannsen wrote.

“We will continue to make public health decisions based on the evidence.”

Alberta’s new premier, Danielle Smith, told reporters she will be replacing Hinshaw with new public health advisers.