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Justice Centre obtains change to expansive Court ban on all peaceful outdoor gatherings in Alberta

CALGARY: The Justice Centre for Constitutional Freedoms has successfully applied to vary the May 6, 2021 Order of Associate Chief Justice John Rooke of the Alberta Court of Queen’s Bench which would have allowed police to arrest any individual "organizing an in-person gathering, including requesting, inciting or inviting others to attend an "Illegal Public Gathering"; "promoting an Illegal Public Gathering via social media or otherwise;" and "attending an Illegal Public Gathering of any nature in a 'public place' or a 'private place'."

The Justice Centre appeared in Court on the morning of Thursday May 13, at a public hearing observed by media remotely, and applied to amend the May 6 Order by removing the words “or independently to like effect.”

The amended Order will now apply only to Whistle Stop Café, Christopher Scott, Glen Carritt, and “and any other person acting under their instructions or in concert with them and with Notice of this Order.” With the words “or independently to like effect” removed, the amended Order does not apply to people beyond those referred to in the Order. The Justice Centre’s application was consented to by counsel for Alberta Health Services and counsel for Whistle Stop. Justice Rooke stated that he would amend his Order, and remove those words.

Those attending peaceful public gatherings are still liable to receive $2,000 fines, which can be contested in court on the basis that public health orders are unjustified violations of the Charter freedoms of association, religion, conscience and peaceful assembly.

The May 6 Order has been interpreted by Alberta Health Services (AHS), the RCMP and by the Calgary Police Service as authorizing police to immediately arrest any Albertan exercising the Charter freedoms of association, religion, conscience, and peaceful assembly in the face of public health orders which are subject to Charter challenges before the courts, and whose constitutionality has not been ruled as reasonable or justified by any court in Alberta.

As a result, since May 6, Albertans have been immediately arrestable for contempt of court and possible imprisonment for participants in claimed illegal public gatherings. The May 6 injunction ordered people offending the Order to be brought before a judge for conducting illegal public gatherings. Once before the judge, the individual had the choice of making a solemn promise to comply with Charter-violating laws, or being found in contempt of court and kept imprisoned.

On May 6, 2021, AHS applied, without any notice to Whistle Stop’s counsel Chad Williamson, for an Order to allow police to arrest immediately anyone involved with Whistle Stop Café’s exercise of Charter freedoms in the face of Alberta’s public health orders. These health orders are currently being challenged by the Justice Centre in Provincial Court as well as in the Court of Queen’s Bench as unjustified violations of Charter rights and freedoms. AHS was fully aware of the fact that Whistle Stop was represented by Mr. Williamson, based on prior legal proceedings. Mr. Williamson only learned about this May 6 court application and Order when he received the signed Order.

There was no opportunity to cross-examine Alberta’s Chief Medical Officer of Health, Dr. Deena Hinshaw, on the Affidavit that she swore to, which was filed with the Court in support of the May 6 AHS application for the Order.

AHS also interpreted the May 6 Order as applying to all Albertans, not just Whistle Stop Café and other respondents, stating in a May 6 news release that its “action today also sought and received a court order against all other organizers of advertised illegal gatherings and rallies breaching COVID-19 public health orders.”

The amended Order, secured by the Justice Centre in Court on May 13, 2021, now applies only to the named parties, not to every Albertan who exercises her or his Charter freedoms in opposition to Dr. Hinshaw’s health orders.

“The May 6 Order may well be the single broadest restraining order in common law history, and was obtained behind closed doors by AHS, in secret at that time,” states lawyer and Justice Centre president John Carpay.

Courts issue injunctions against specificindividuals (or organizations, businesses, governments) to deal with specific situations; injunctions are never issued against the public at large. Also, only in extreme situations should a court application be brought without notice to the other side. For example, a court may issue a restraining order without notice against a violent domestic partner.

“Courts have consistently applied the legal principle that an injunction or restraining order must apply only to select individuals or organizations, not to the public at large,” continues Mr. Carpay.

Mr. Williamson, Counsel for the Whistle Stop Café continues to represent Whistle Stop and is separately attempting to overturn the Order banning Whistle Stop owner Chris Scott from organizing or participating in protests. With the Order now amended, Mr. Williamson and Whistle Stop will continue with their legal efforts against the amended Order.

“Under the May 6 Order, intending to protest the devastating impact of Jason Kenney’s lockdowns, or making plans for that purpose, was illegal and was an arrestable offence, for any member of the public having notice of the May 6 Order,” continues Mr. Carpay.

“Under the amended Order, the peaceful exercise by citizens of their Charter freedoms is still punishable with draconian fines. However, those receiving fines can plead not guilty, and challenge the constitutionality of public health orders in Court. The onus is then on the Alberta government to produce medical and scientific evidence in court, to attempt to justify its public health orders before a judge,” adds Mr. Carpay.

“The Justice Centre is grateful for the excellent legal representation provided by Dalton W. McGrath, Q.C. and Michael O’Brien. Their expeditious and skilled handling of this crucial Justice Centre application to amend the Order, on extremely short notice, was outstanding,” concludes Mr. Carpay.

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