Good morning, I am currently in a virtual Calgary courtroom watching today's constitutional challenge against COVID-19 restrictions. There are easily over a hundred people watching as well, and a big lineup outside the courthouse as well. #yyc #ableg

The challenge has been launched by the Justice Centre for Constitutional Freedoms. Their release here says they are challenging the "Alberta government cancelling Christmas." https://www.jccf.ca/court-to-hear-challenge-to-alberta-government-cancelling-christmas/

The fun thing about this is there is a live chat feature as well, unlike in a normal court where you have to stay quiet. Here is one interesting comment off the top.

As we get underway, there's a message to keep microphones unmuted. I am expecting there will be a lot of unwanted comments nonetheless, though.

Lawyer Jeffrey Rath, who is representing the applicant here, is noting the "strange noises" coming in from everyone who is joining in. He says this will be extremely distracting if it continues. I have a feeling it's going to take some time until this is actually manageable.

Currently 296 (!) people in this virtual court right now

"IT is on its way," says the court clerk. Need a bit of patience here as these hiccups get worked out. This is less than smooth right now.

Looks like we are almost ready to start, now 324 people participating. Clerk first off mentioning some of the rules here, including how we cannot record and re-broadcast the proceedings. I can continue to livetweet however (normal court rules).

Just some preliminary stuff ongoing right now. There is a lawyer here specifically representing the media, asking for greater provisions to allow for more reporting during these proceedings. Apparently, people are shocked that we are covering this.

The chat feature seems to have just been closed down, after a deluge of comments particularly derisive towards the media, and others saying that Dr. Deena Hinshaw should be jailed.

As far as I can tell here, the first 15 minutes or so of what has been discussed here is largely around if the main applicant in this case can be fully identified. There's concern there could be ramifications for this person if it is disclosed publicly.

Okay now I think we are getting into this. Judge laying some ground rules here. First off, time is limited. Only have a few hours to get through this.

I will note that the Rath lawyers, helping represent the challenge against the restrictions, seem to be breaking the public health orders already as they are seated in a workplace without masks.

Jeffrey Rath gets us started with his arguments. Says they have some scientific papers and evidence that both question current testing protocols, and promote the use of different treatments for COVID-19.

He says the applicant they represent is calling for the removal of most of the restrictions here, with the feeling that it breaches the constitution.

The judge jumps in on this point, though. She says she is struggling to understand what their arguments are here. Thinks they are conflating different legal questions.
Rath responds, first off says that the government is causing irreparable harm.

Rath is accusing the CMOH of not providing any actual scientific evidence to justify the restrictions. He says there is not enough evidence presented by her to show that people actually die of COVID-19.

(And we have our first unwanted interruption with some jumbled speaking in the background.)

Rath goes on to say the charts showing increased cases doesn't show enough about testing or other analytics. Says there isn't enough to prove people aren't just dying of comorbidities.

Rath says some COVID-19 tests can be very inaccurate, suggests upwards of 90% of positives are false.

Judge also interjects now, about how the government feels it is in the public interest to help protect people against COVID.

Rath says the measures need to be proportionate, and there isn't a "balancing exercise" being done.

Rath says there's no evidence that if all the measures are removed there will be any harm done to the public. He says the government cannot prove that restrictions help keep us safe. Says it is all "speculation."

Rath says there are treatments available that could lessen the length and mortality of COVID-19 infections. Says the government cannot uphold its orders by ignoring these mythical treatments.

He says if the government cannot show that restrictions are better than these sort of treatments, then their case should succeed.
He now goes on to say CMOH Dr. Hinshaw is not qualified to make these decisions.

"We're dealing with a large percentage of people with fatal comorbidities who MAY be dying while testing positive for COVID-19...I don't see evidence that there is an emergency," he adds.

On ICU capacity, Rath says there's a problem with the government not detailing how much overall ICU space is compared to the space specifically earmarked for COVID. (I am pretty sure this info is publicly available, or at least easily attained.)

He brings up how the vast majority of cases come from an unknown source. Rath says Dr. Hinshaw is now "choosing which businesses go bankrupt."

Judge jumps in again, going back to irreparable harm. Burden of proof has to be on the applicant, to prove what harms they will experience if the restrictions are not removed. Government doesn't have to prove anything on their end.

Further, the judge asks if it is not speculation on the applicant's end to assume that removing restrictions will immediately help businesses?

Judge says the evidence does not seem clear here to show how an injunction will actually help the situation.

Rath says a business being able to reopen and take in revenues should reduce the harms done to them. "Nobody is getting Christmas back," he adds.

Rath questions how people having large gatherings over the holidays will cause a rise in cases.

Again says how the Christmas holiday is being cancelled, and this will cause irreparable harm. Says the judge has the power to save Christmas. Doing a lot to talk about Christmas. No mention of Hanukkah or other holidays that happen at this time of year, I will add.

Oh the chat has come back online! Nick Parker (representing the province) brings this up and says there are many offensive comments. Chat turned off again.

Rath's time is done. Now going to James Kitchen, who is with the JCCF. Oh god, I just heard some extremely loud screaming interrupt the speech, from a random unmuted mic.

Kitchen says we are now looking at an authoritative police state, unlike anything ever seen since the Charter was written.

All of the problems we are experiencing are because of the restrictions, not the virus, he says.

Judge interrupts and says this is all pointless. Focus on the matter at hand here.

Kitchen is discussing some affidavits that were presented for this case. They have some from doctors that I guess question the severity of COVID-19? Not totally sure what he is arguing at this point.

Kitchen says you don't need to be a psychologist to understand that cancelling Christmas will cause "traumatic memories". Says they could be preventing grandparents from celebrating their last Christmas...

No amount of money can compensate us for a loss of constitutional rights, he says. Kitchen says "you can't buy back Christmas."

Kitchen says it is unfair for a bureaucrat (Hinshaw) to make these decisions

Judge says this next part of Kitchen's argument concerns her. She says that diminishes the important role the CMOH plays. Do you agree the orders were issued lawfully?

Kitchen says Hinshaw is certainly duly appointed, but he doesn't agree with the jump to the restrictions put in place.

He says the applicants make a point that people will be much better off if the restrictions are removed. He says the orders cause an "extreme level of harm." He says it is "hypothetical" that there would be more harm if everything was opened up.

"No scientific evidence that this is needed." On the other hand, he says the harm from business closures is the only real thing here. Emotional harm etc.

He says that social gatherings could instead be allowed under the 15 per cent capacity like businesses are operating. (How the hell do you calculate 15 per cent of the people who can be in your home?)

Kitchen says Hinshaw is supporting the "novel" idea that restrictions can reduce infections.

Justice says this is not the ultimate issue. The issue here is how do you prove that *removing* restrictions will reduce harm, and how does it outweigh harm of the virus.

She says the debate here isn't if the current measures are the most effective. Kitchen et al need to establish why the court should call for removing the restrictions. She says flat out that she doesn't see why she should side with the applicants here instead of Dr. Hinshaw.

(There are some random points where people joining in forget to turn off their camera. So right now I'm looking at an older gentleman sitting in his kitchen in a bathrobe.)

"Floyd turn your mic off!" somebody yells. Floyd is the man in the bathrobe.

Floyd is now off the screen. The unmuted mic issue seems to be at least temporarily resolved for now.

This is just so damn funny. What a way to cap off 2020

Back to the arguments... Kitchen says the Judge does make a good point here, but his counterpoint is that there's no evidence in his mind that there would be harm from allowing restrictions to be removed. (Again, this is not the point of the proceedings here)

The judge says she has an issue with the suggestion that she should be rejecting the knowledge of Dr. Hinshaw.

Kitchen now talking about suicides. He also now questions the data that came out that COVID-19 deaths are now more than influenza in the past two years.

Judge chimes in, says the doctors Kitchen is citing present observations, but "Dr. Hinshaw provides data."

Kitchen says there is no data in front of the court around how increased transmission of the virus will lead to overloading the health system.

Judge has another question. This is a complex matter, she has an issue with Kitchen drifting off into other tangents. How can I make the conclusions you ask of me without the evidence you claim to be missing?

Kitchen says the lack of evidence should be of particular concern. He says this paves the way for the government to "get away with anything."

Judge says the bar is high here on a matter this serious. First off, previous attempts at this have failed.

She says that Kitchen is asking the court, in the middle of a public health crisis, to just unilaterally remove the measures. This is all just so rushed, and they cannot accurately decide the merits in such a short amount of time.

Kitchen says the harm of closing businesses and cancelling Christmas is so much worse than COVID-19. He says the crisis will be worse with these restrictions. He says he is not trying to say COVID doesn't exist.

Judge has to stop him again because he is drifting. She doesn't want to diminish people's difficulties, but the applicants need to PROVE their irreparable harm. And this evidence has not been presented.

Kitchen says his evidence is how people will be traumatized by missing Christmas.

He says there is a singular focus on COVID here, and the applicants are at a loss to try and find relief from the "harm being imposed upon" them by the government. He says the government needs to show clear evidence of how keeping restrictions in place will help us.

Alright, now it is time to hear from the other side. Nicholas Parker representing the province's position. Judge has some questions here first, such as if the Charter rights are broadly defined?

Parker's submission is that they have "carefully taken apart" the position of the applicants. Says there is no serious issue, no evidence the order restricts freedom of conscience or religion.

Parker is going through some of the applicants' arguments. He agrees that businesses will certainly suffer a loss of revenue, but the claim about a property rights violation that question has already been decided by the Supreme Court, so there's no other question about it.

So, Parker isn't going to respond much to what the applicants have said so far. He will focus on what the real matter is here, the argument with "the balance of convenience". He does refute Kitchen's and Rath's claims that we are not in a pandemic.

Parker says these statements are "an alternative version of the facts," and their arguments are also "an alternative version of the law." He is picking apart some parts of their application, including calling Dr. Hinshaw "tyrannical".

Parker says we are not seeing tyranny, we are seeing democracy in action in the middle of the biggest health crisis in Alberta's history. This is what lawmaking looks like, he says.

He says it should be clear to understand what would happen if we ignored the advice of the CMOH during this time. Look at the accelerating factor after Thanksgiving, he adds. "I am asking you to dismiss this application. To dismiss it completely."

Parker wraps up his submission. Rather succinctly I must add, without going into ranting tangents. A nice change of pace.

There was a random interjection from an unmuted mic, sounded like text being read by a digital voice decrying something about "globalism"

Now the Judge asks for *brief* replies from the applicants' lawyers in response to what we just heard. She says they should not rehash what they already said.

Mr. Rath is starting. His key point is that the government's evidence is too speculative and hypothetical. "Could" result in more hospitalizations and stuff like that, if restrictions are removed.

Rath says Parker is being hyperbolic. This is not polio or smallpox or the Spanish flu. He says people who are healthy are not dying of COVID (I believe this claim is disputed). Essentially his argument has been that people dying of COVID would have died anyway

Kitchen also has some more to add. Quoting the Supreme Court that suggested a compelling argument is needed to prove the point here. Not sure if he is suggesting he has made a compelling argument.

We are now adjourning while the Judge mulls this over. We will have a decision by 2:30, she hopes. Grab a coffee and some lunch and we will return this afternoon!