When it comes to court proceedings, Alberta Health Services (AHS) knows how to play dirty.
On May 6, 2021, AHS applied in a secret court proceeding for an injunction against Whistle Stop Café in Mirror, Alberta, to give police special powers to arrest its owners and other citizens immediately if they dared to continue exercising their Charter rights and freedoms in the face of public health orders.
Prior to May 6, police already had the right to issue $2,000 fines to citizens gathering peacefully outdoors. But the recipient of the ticket could plead "not guilty" and force the government to produce medical and scientific evidence to try to justify its public health orders. At trial, the onus would be on the government to provide credible evidence that its violation of Charter freedoms was reasonable, necessary and beneficial.
Under an injunction, police can arrest citizens and put them in jail immediately, without the citizen having an opportunity to assert her or his Charter freedoms in the face of irrational and unscientific health orders. The jailed person will stay in jail until promising the judge to consent to the violation of her Charter rights and freedoms by public health orders.
An injunction is therefore a game-changer, to put it mildly.
AHS provided no notice to Whistle Stop Café and its owners, prior to filing its injunction application in court on May 6. In court proceedings, one must always notify other people when taking legal action against them. In fact, a failure to serve the respondent with adequate warning will result in the judge putting your legal claim on hold indefinitely, until you have provided proper notice to the other side.
Court applications made without notice to the other side are normally reserved for true emergencies and extreme situations, like seeking a restraining order against a violent domestic partner. If providing proper notice of a court application might trigger a violent assault, the victim can obtain an injunction against the abuser without providing prior notice.
There was no emergency taking place in Mirror, Alberta, that warrants a court application without notice to Whistle Stop Café and its owners. The Alberta Government had already been issuing massive fines against individuals, while at the same time refusing to produce medical and scientific evidence in court actions in which Albertans have challenged the validity of public health orders for violating their Charter rights and freedoms.
At the trial of Pastor James Coates, which commenced on May 3 and is continuing in June, the Alberta Government, after more than 13 months of imposing lockdowns, was unwilling or unable to produce any evidence in court to justify its violations of Charter freedoms. In a different court action filed in December of 2020, the Alberta Government persuaded the court to give it until July of 2021 to produce evidence to justify lockdowns. While aggressively delaying court proceedings that might result in public health orders being ruled unconstitutional, the government pretends that it's an emergency when citizens in Mirror exercise their Charter freedoms.
It gets worse.
The May 6 injunction was worded such that it applied not only to Whistle Stop Café and certain activists, but to every Albertan having notice of this May 6 injunction. AHS was thrilled, boasting in a May 6 news release that it "sought and received a court order against all other organizers of advertised illegal gatherings and rallies breaching COVID-19 public health orders." Suddenly, Albertans gathering outdoors in numbers larger than five could be locked up in jail immediately, without any ability to defend themselves against unconstitutional health orders.
An injunction that applies to the entire population departs radically from a large body of court precedents that require injunctions to be limited only to named individuals, or to a very narrow category of citizens who can be identified by way of a specific description.
On May 13, 2021, the Justice Centre was in court seeking to amend the AHS injunction, such that it would no longer apply to every Albertan. Lawyers for AHS, knowing that their May 6 injunction was contrary to numerous and very clear court rulings, consented to this change. In court. On the record. With media present. (Not that any media reported on this change; doing so would undermine the government's fear narrative, which government-funded "mainstream" media are staunchly committed to promoting.) The judge amended the injunction shortly after 10:00 a.m. on May 13. From that moment onward, it applied only to the named respondents, not to every Albertan.
After the injunction was amended on May 13, the Justice Centre informed the Calgary Police Service and other police forces in Alberta that the injunction no longer applied to the public at large, but only to certain individuals affiliated with Whistle Stop Café.
On May 16, the Calgary Police Service arrested and jailed Pastor Tim Stephens, after his Sunday church service. Pastor Stephens and his congregation have been exercising their Charter freedoms, as they are entitled to do by Canada's Constitution, without any connection to Whistle Stop Café. AHS and the Calgary Police Service knew that the injunction no longer applied to anyone except certain individuals engaged with Whistle Stop Café.
The arrest of Pastor Stephens was illegal.
But it gets worse still.
In court on Monday May 17, lawyers for AHS argued that Pastor Stephens was arrested legally under the May 6 injunction, even though they knew that the May 6 Order had been amended so that it applied only to Whistle Stop Café, its employees and anyone working under their direction, and no longer applied to Pastor Stephens, or the public generally.
AHS is an arm of the Alberta Government. AHS compromised the integrity of the Crown when it misrepresented the facts, for the purpose of keeping Pastor Stephens in jail. If there are limits to how low the Alberta Government will stoop in its war against the civil liberties of Albertans, we apparently haven't reached them yet.
Pastor Stephens remains in jail at the time of the writing of this column.
Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms, which represents Pastor Tim Stevens.
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