September 29, 2022

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Day 2 of a court hearing on the Alberta government’s abrupt removal of a mandatory mask mandate for schoolchildren heard Thursday from a government lawyer who rejected a suggestion the decision was fuelled by growing tensions at the Coutts border in February.

“It is interesting that the applicants are trying to paint a picture that somehow the removal of the mask mandates was done for extraneous or improper purposes,” said Gary Zimmermann, a lawyer representing the Government of Alberta. 

The families of five immunocompromised children as well as the Alberta Federation of Labour (AFL) are seeking a review of the decision, which was made Feb. 8 during a cabinet meeting. Dr. Deena Hinshaw, Alberta’s chief medical officer of health, presented a range of options to cabinet as the number of infections was falling.

A news conference was held later that day to announce the easing of restrictions.

The removal of the mandatory mask requirement for schoolchildren took effect on Feb. 14. 

Lawyers for the group argued Wednesday that Dr. Hinshaw abdicated her authority to cabinet and failed to meet her obligation to protect medically vulnerable schoolchildren.

They said the decision to remove mask mandates in Alberta schools was not consistent with public health advice and instead was made by government officials for political reasons, including “quelling protests” at the Coutts border crossing.

On Thursday, it was the government’s turn to respond.

“They refer to the combustible situation at Coutts, but I reiterate that there is no evidence that Dr. Hinshaw — or cabinet, for that matter — was motivated by politics in relation to this, anti-mask protests or the combustible situation at Coutts. There’s no evidence of that,” he told the Court of Queen’s Bench hearing. 

He said the decision was based on a number of factors, including falling case counts. 

“The latest relevant stats, jurisdictional scans, science, efficacy of interventions … and that includes the fact that requiring children to wear masks is not without consequence,” he said.

“The decisions … were absolutely made in good faith, using best judgment based on information available at the time.”

He says students, guided by their parents, were allowed to make their own decisions regarding mask use.

“Thus, returning Alberta to the pre-pandemic status quo on this specific issue,” he told the court.

The children at the centre of this court case, according to the applicants’ legal team, suffered segregation, alienation and bullying as a result of having to stay home from school or, in other cases, because they were the only ones at their schools who wore masks.

Health over education

Zimmermann told Justice Grant Dunlop that the families’ claims that the removal of the mandatory mask order forced them to choose between their children’s health or education was not the case. He says none of the children were prevented from attending school and there’s no evidence anyone was segregated from their classmates.

“I would suggest to you that it seems that none of these people were impacted in relation to the inability to attend school because of the removal of masks,” he said.

The applicants have said they are not asking for the reinstatement of a provincewide mandate. 

Instead, their lawyers, Orlagh O’Kelly and Sharon Roberts, are asking the judge to make a declaration that it was not Hinshaw who made the decision and that, in the future, she cannot hand over power to cabinet.

Zimmerman noted there is no record of the detailed discussions held during the priorities implementation cabinet committee meeting because they are held in confidence. However, he maintains Hinshaw made the decision because she recommended it as an option and she signed the order.

“We’re suggesting that Dr. Hinshaw maintained decisive control and that she maintained decisive involvement,” Zimmermann said. 

Roberts, in her closing remarks, said the government has failed to prove why the mask mandate was lifted so abruptly.

“The government’s message seems to be ‘there’s nothing to see here.'”

“What we’ve heard today. … is kids need to be kids. That was the explanation that was given at the time, and that’s the explanation … that’s given today. And that’s what you can make your decision on. That’s the justification, there was nothing else,” Roberts said.

Dunlop said it will likely take a few weeks to review all of the evidence, but he told the court he hopes to have a decision “as soon as possible.”


Bryan Labby is an enterprise reporter with CBC Calgary. If you have a good story idea or tip, you can reach him at bryan.labby@cbc.ca or on Twitter at @CBCBryan.

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