Alberta provincial health officer Dr. Deena Hinshaw faced her fourth straight day of questioning in an Alberta courtroom on Thursday as an unprecedented civil suit against the province’s COVID restrictions continues.
Lawyers with the Justice Centre for Constitutional Freedoms (JCCF) have zeroed in on Hinshaw’s use of certain language – including “non-believers,” “conspiracy theory,” “naysayers,” “new normal” – and social justice commitments, as well as a highly publicized incident from October that saw Hinshaw apologize for initially blaming the death of a 14-year-old on COVID when he had actually died of brain cancer.
At that time, the plaintiffs had filed for an injunction against Alberta’s restrictions – including lockdowns involving their businesses, places of worship and family gatherings – pending this trial.
A different judge had struck down that petition, ruling the government’s health measures to be in the public’s best interest.
The timeframe of the challenge is important, as it means that health orders brought in after the summer of 2021 – including Alberta’s vaccine mandates and passports – are not within its purview. Neither is the “hindsight” of new research since, narrowing the relevance to what Hinshaw allegedly knew or believed at the time she imposed her health orders.
Court of Queen’s Bench Justice Barbara Romaine is presiding over the hearing.
The suit is one of many currently ongoing against the federal and provincial governments over violations of Charter and other rights under COVID, including travel restrictions, vaccine requirements and lockdowns.
The lawsuit states that the Alberta government had violated rights to peaceful assembly, to travel, to conduct a business to earn a living, to visit family and friends, to have visitors in one’s own private residence and to worship.
“Select individual rights and freedoms have been constitutionalized in this country for a reason,” the JCCF wrote. “Not merely because living in a free society is convenient, because of the recognition that the activities, experiences and endeavours those rights protect are what make life truly worth living.”
The JCCF’s lawyers have been cross-examining Hinshaw on her 206-page affidavit detailing pandemic statistics, timelines and decision-making frameworks.
Hinshaw testified that “it can take months” to distinguish people who died from COVID from people who died with it. When asked whether the number of people who died from COVID is actually lower than what was reported, Hinshaw answered, “it’s part of the ongoing checking process.”
Questions also arose around the slippery slope of socialized medicine – in addition to social justice considerations in Hinshaw’s decision-making – with lawyer Leighton Grey asking her why she hadn’t asked people to get their weight under control when evidence showed that obesity – along with many other conditions – was a major contributing factor to COVID hospitalizations.
“You never told Albertans they could reduce their risk of COVID-19 by reducing the amount that they ate,” said Grey. “You never said, ‘You know, it would really help you, it would really help your health, if you would get your weight under control.'”
Replying that obesity is not something that can be changed in a short time, Hinshaw then faced questions over restrictions involving children and young people, whom evidence showed were at next to no risk from the pandemic.
Hinshaw admitted that “COVID-19 infection is not a significant risk to people under the age of 19.”
On Tuesday, Grey invited Hinshaw to explain to the court why she had used the term “non-believers” to describe people who did not go along with her COVID recommendations.
Hinshaw defined non-believers as those who “adopted beliefs that would lead to behaviours that would put themselves and others at risk.” When asked about her use of “conspiracy theory” and “naysayers” to describe people who held different opinions from government doctors, she replied that a small number of individuals with a differing opinion does not change the consensus.
The fourth day of questioning brought up the inevitable issues of cabinet privilege and confidentiality, with the judge deciding to ask Hinshaw three questions “in camera” (or behind closed doors) about what the Alberta government had recommended or directed in terms of health orders.
The Rebel’s Sheila Gunn-Reid, who has been live-tweeting the case from court all week, summarized the questions, concluding that “we may or may not get to know what Hinshaw’s answers are until the judge rules.”
With Alberta one of the first provinces to remove almost all its pandemic restrictions – including even its vaccine mandate for already-hired healthcare workers – the appearance of a public health official in provincial court sets a precedent for accountability, especially with civil suits against other government doctors.
In comparison, British Columbia provincial health officer Dr. Bonnie Henry is not currently expected to take the stand until Apr. 17, 2023.
Several constitutional challenges against pandemic restrictions have been launched in B.C., including one by public servants suspended or terminated over vaccine mandates that is scheduled to begin on May 16.