Albertans could see pandemic-related charges withdrawn after ruling on Public Health Act breach

Albertans charged with breaking pandemic-related laws could see their charges withdrawn after a Calgary judge ruled the Public Health Act was breached when politicians, instead of the chief medical officer of health (CMOH), made final decisions on health restrictions.

The group funding the legal defence of two people and one church have called on prosecutors to withdraw charges after Court of King's Bench Justice Barbara Romaine's 90-page decision was released Monday.

The court action began in December 2020 when a group of plaintiffs — including two churches and a gym owner — filed a lawsuit arguing pandemic-related public health measures were contrary to Alberta's Bill of Rights and unlawfully breached Albertans' Charter-protected rights.

Romaine ultimately found former Chief Medical Officer of Health (CMOH) Dr. Deena Hinshaw made recommendations and ultimately implemented the restrictions, but it was cabinet which yeilded the final decision making power.

Alberta's Public Health Act does not allow for the CMOH to delegate her decision-making powers to politicians.

Now, the Crown must decide what to do with a number of prosecutions that were paused awaiting Romaine's decision. 

That includes Ty Northcott's case. Northcott was charged after organizing and hosting an anti-lockdown rodeo which breached public health orders in May 2021.

Pastor James Coats of Grace Life Church in Edmonton as well as Calgary's Fairview Baptist Church also face charges related to breaches of public health orders. 

"With these health orders having been invalidated, it is expected that Crown prosecutors will need to withdraw charges," wrote the Justice Centre for Constitutional Freedoms (JCCF), which funds the legal defences for Northcott.

The Alberta Crown Prosecution Service (ACPS) says it's "in the process of reviewing the decision and assessing its potential implications."

"It will take some time to complete this thorough assessment. At this point, no decisions have been made as to next steps."

While it's not clear how prosecutors plan to move forward following Romine's decision, Lorian Hardcastle, a law professor specializing in health law at the University of Calgary, says she wouldn't be surprised to see charges dropped. 

"I do think it's entirely possible that they may withdraw the charges given the orders weren't validly enacted at the time," said Hardcastle. 

Hardcastle says now is the time for the government to fix the Public Health Act, clarifying who is the final decision maker and what is the role of CMOH.