Misinformation in the courtroom: How cases challenging COVID-19 restrictions in Alberta have shifted

Over the past 19 months, Alberta has seen church leaders, business owners and others challenge public health restrictions in the court system.

But health law experts and far-right researchers say they've seen a shift in the nature of the court challenges in the province.

Alberta is seeing a growing number of court cases come forward challenging the science behind COVID-19, public health restrictions and vaccines.

"Six, eight months ago, we were seeing quite random cases … in response to a particular restaurant being closed or particular business being fined, that sort of thing," said Barbara Perry, director of the Centre on Hate, Bias and Extremism at Ontario Tech University.

"Now there's some momentum around it."

'There's some momentum'

This year, Alberta Health Services has been involved with more than 25 separate civil matters involving the enforcement of COVID-19 restrictions. 

This doesn't include ticketed offences or criminal matters being pursued by Crown prosecutors.

A spokesperson said the number of matters AHS has been involved in before the civil courts increased significantly in 2021, with only a small number initiated in 2020. They did not provide specifics.

A spokesperson with Alberta's Justice and Solicitor General declined to comment on ongoing court cases. 

After monitoring far-right extremism for years, Kurt Phillips says he's noticed a recent escalation in court applications and online messaging.

"In the years past in looking at the sovereign citizen movement, you always saw these kinds of nuisance lawsuits of people who believed if you just applied to the court with the right set of magic formula, the right words in the right order, you will be able to win your case no matter how ridiculous," said Phillips, a board member with the Canadian Anti-Hate Network.

Sovereign citizens believe they are or should be immune from government laws.

"It's pretty clear to most people who are observing this that there's been an escalation of more people using these kinds of documents."

Perry says the legal challenges of the science behind COVID-19 vaccines and public health restrictions takes her back to her work on the anti-authority movement.

"That was one of their goals, was to tie up the legal system," she said.

"But in this context, when you're also tying up public health authorities that have far bigger issues to concern themselves with right now, that's at a different level.

"That really is then threatening their ability to do their work that is intended to protect the majority of us who accept that we need to change the way that we behave in this world if we want to halt the flow and spread of COVID." 

Timothy Caulfield, Canada Research Chair in health law and policy at the University of Alberta, said in general, recent court cases are brought on by people on what he calls "the fringe of the public discourse" because they hold views not shared by the majority.

"Whether you're talking about physicians that are bringing them, nurses bringing them or citizens that are bringing them, these lawsuits are coming from the fringes."  

Cases challenge COVID science

In a recent Edmonton case challenging COVID-19 vaccines, an applicant sought to end the administering of vaccines in light of the "seriousness and prevalence of COVID-19 side effects, risks and injuries."

His application also wants Albertans receiving the COVID-19 vaccine to have full and informed consent related to the vaccines.

"Time is of the essence," the applicant, Dave Dickson, said in an Edmonton courtroom on Nov. 5. 

Dickson's court case was still being reviewed as of Tuesday.

In another case, a Red Deer man who attracted international attention in August when he was hailed on social media as a "freedom fighter" who "forced the government to admit" COVID-19 doesn't exist, challenged the validity of Alberta's public health rules.

While fighting a fine for disobeying health restrictions, Patrick King requested Dr. Deena Hinshaw, the province's chief medical officer of health, present papers discussing the isolation of SARS-CoV-2 "directly from a sample taken from a diseased patient."

The Court of Queen's Bench of Alberta quashed the subpoena in July, finding King had failed to show the request was relevant to his case. 

King and his supporters misrepresented on social media the language used by the court, saying it proved there is no evidence that COVID-19 exists. 

He concluded his arguments led the province to ease health restrictions in the summer.

"These people dropped the mandates because they knew they were in a lot of trouble," King said about his case Thursday. 

"They knew that they couldn't prove the isolation of this virus, so they were hoping that they could get away with going the route that they were going by opening up for the summer." 

Restrictions were lifted after the province entered the final phase of its Open for Summer Plan after at least 70 per cent of residents over the age of 12 received at least one dose of the vaccine and not because of King's case, said a Hinshaw spokesperson.

Legal precedent

Misinformation is at the heart of most recent court cases, said Caulfield.

He emphasizes that these cases represent a minority of Albertans. 

But Caulfield and other law experts said these cases do play a role in clarifying what the law actually says around public health interventions and can provide transparency on government decisions. 

"Even if we don't like the arguments of litigants, the government's response and the government's evidence is still valuable," said Lorian Hardcastle, an associate professor in the faculty of law at the University of Calgary, with a cross-appointment to the Cumming School of Medicine. 

"We're learning more from some of these cases perhaps around how the government responded to the pandemic."

This story was supported by Journalists for Human Rights' Misinformation Project with funding from the McConnell Foundation, the Rossy Foundation and the Trottier Foundation.