Published:May 18, 2021
CALGARY: The Justice Centre for Constitutional Freedoms was in court again today on behalf of Calgary pastor Tim Stephens, in jail since Sunday May 16. Alberta Health Services (AHS) has sought to keep Pastor Stephens in jail until he agrees to consent to the violation of his Charter rights and freedoms by Alberta’s public health orders.
Alberta’s public health orders are subject to Charter challenges in two separate court actions, and thus far the Alberta Government has failed to produce any medical or scientific evidence, in either court action, that might justify its public health orders as required by the Charter.
Pastor Stephens was arrested after leading a church service on Sunday, May 16, on the basis of a May 6 injunction issued against Whistle Stop Café in Mirror, Alberta, and certain affiliated individuals.
Pastor Stephens has no connection to Whistle Stop Café.
“The May 6 injunction does not apply to Pastor Stephens, nor did it apply to him at the time of his arrest. His arrest and current detention are illegal,” states lawyer John Carpay, President of the Justice Centre.
“Alberta Health Services knows that the May 6 injunction, which originally applied to all Albertans having notice of this injunction, was amended by Associate Chief Justice Rooke on May 13. Since then, this injunction has applied only to Whistle Stop Café and certain named or affiliated individuals,” continues Carpay.
In a hearing before Justice Adam Germain of the Alberta Court of Queen’s Bench earlier today, lawyers for AHS and for Pastor Stephens agreed to the release of Pastor Stephens on condition that he abide by the terms of the May 6 injunction of Justice Rooke, as amended. The terms may be varied on one day’s notice. Further developments are expected to be announced.
On May 6, 2021, AHS applied in a secret court proceeding for an injunction against Whistle Stop Café and certain individuals, 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,” states Carpay.
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,” states Carpay.
The May 6 injunction was originally 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. 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. The CBC, Canadian Press, and other media were present (virtually) in court, but did not report on the amendment to the injunction.
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.
In court, lawyers for AHS have argued that Pastor Stephens was arrested legally under the May 6 injunction, even though they know that the May 6 injunction had been amended and no longer applied (or applies) to Pastor Stephens, or to the public generally.