Thursday, October 27, 2022

Mask Court Case in Alberta

Families of five immunocompromised kids in Alberta fought the lifting of mask mandates by the government, and, long story short, Justice Grant Dunlop said the cabinet can't do that, as reported by CBC:

The order was unreasonable because it was based on an interpretation of the Public Health Act as giving final authority over public health orders to elected officials. . . . While Minister LaGrange's statement on its face appears to prohibit school boards from imposing mask mandates, it does not do so, because the minister can only do that through a regulation, and the statement was not a regulation. . . . The application argues the abrupt end of the masking mandate infringed on the charter rights of the immunocompromised children who were forced to choose between their education and their health. . . . 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" that were taking place at the Coutts border crossing. . . . The applicants' legal team argued the children at the centre of this court case 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.

Lorian Hardcastle, Associate Professor of Health Law and Policy in Calgary, explained the case in greater detail in a thread today:

Hot off the press! The Court of KB releases its decision in the school masking case. The Applicants challenged the chief medical officer's order rescinding masking in schools and the Minister of Ed's direction that schools not impose their own masking requirements. Notable, and as [Law Professor] Ubaka Ogbogu and I have said many times, the Court finds that the authority to make public health orders rests with the CMOH, not cabinet. Because the masking decision came from cabinet and not her, it was unreasonable. 

The Court clarifies CMOH powers: "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." However, here she didn't make decisions but was "implementing policy decisions of elected officials." When government pulled back public health measures, they instructed schools to fall into line (see letter below), which was inconsistent with their prior messaging. The Court found that while the government could limit school powers, this had to be done via regulation. 

In other words, despite messaging to the contrary, schools were free to adopt public health measures such as masking that exceeded the government's rules. 

Although the CMOH order was unreasonable, this does not bring back masks in schools. Instead, the CMOH would have to consider whether they are appropriate based on current conditions. 

The case also addressed the Charter argument that lifting the masking requirement discriminates against immunocompromised kids. Here, the court wanted more medical evidence that "the Applicant Children and other disabled children are at increased risk if they contract COVID." Affidavits from parents saying doctors told them that their kids were at increased risk weren't enough. 

On that final point, I can't imagine what would count at sufficient evidence that disabled kids are at an increased risk beyond a doctor saying so. Do they need to conduct a warped clinical trial that actually puts kids at risk to prove Covid harms immunocompromised kids??

Also, noteworthy: THIS WEEK IN HISTORY: Waterloo Region's Covid hospitalization rates this week average 47 cases, compared to 6 in 2021, and 3 in 2020. This is proof of nothing. Everything's fine.

ETA: Oct. 29 - More from Courtney Theriault, a reporter with City News in Edmonton:
Premier Danielle Smith confirms her government will ban any masking mandates in K-12 schools going forward. 
This comes after a court ruling this week that deemed earlier government efforts to curb school masking mandates as unreasonable, and that schools were not technically barred from having them despite opposition from the Education minister. 

And this a comment,
The PUBLIC Health Act takes away misinformed government overreach for this exact reason. Thanks to the original authors who have clearly been dealing with science-illiterate government officials for decades. 
was followed by many other commenters agreeing that Smith can't legally do this, so let's see what happens there next! It will definitely impact what happens in Ontario.

ETA: Oct. 30 - A response from Jason Schilling, Alberta Teachers' Association president:

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