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The Constitutionality of Alberta's Public Health Orders: Ingram v. Her Majesty

In the case of Rebecca Marie Ingram et al v Her Majesty the Queen in Right of the Province of Alberta et al, 2020 ABQB 806 , Madam Justice Kirker briefly considered the constitutionality of the Province of Alberta's Public Health Orders related to Covid which restrict indoor and outdoor gatherings, require masks, and place obligations on business owners.

The application argued that these orders were a breach of the Charter and of the Alberta Bill of Rights. The lawsuit was brought in an attempt to lift these restrictions before Christmas. The Court made an interim (temporary) decision, and will make a more detailed ruling after a more thorough hearing.

The applicants were trying to obtain an injunction to stop the public health order. Injunctions are basically court orders telling someone or some organization to stop doing something. The test to obtain an injunction was analyzed by the Court at paragraph 9:

The test the Applicants must meet was affirmed by the Supreme Court of Canada in RJR MacDonald Inc. v Canada, 1994 CanLII 117 (SCC), [1994] 1 SCR 311. There are three parts to the test. First, I must be satisfied that there is a serious issue to be tried, in the sense that the Applicants’ claims are not frivolous or vexatious. Second, the Applicants must establish a likelihood of irreparable harm if the injunctive relief they seek is refused; and third, I must be satisfied that the balance of convenience or inconvenience favours granting the injunction the Applicants seek.

The Court did not grant the injunction. The Court has not finally decided anything in this matter, other than the temporary injunction issue. There will likely be further hearings.

As for the outcome, Canada's Charter does not grant absolute constitutional rights, unfortunately. The language of the Charter says in Section 1:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

It would be a surprise if the applicants were successful, given previous Charter jurisprudence.

If you wish to discuss this or any other matters, please feel free to contact us.

The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.

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