Court of Queen's Bench of Alberta

Citation: Ingram v Alberta (Chief Medical Officer of Health),2022 ABQB 3

Docket: 2001 14300

Registry: Calgary

Between:

Rebecca Marie Ingram, Heights Baptist Church, Northside Baptist Church,Erin

Blacklaws and Torry Tanner
Applicants
- and -

Her Majesty the Queen in Right of the Province of Alberta and The Chief Medical Officer
of Health

Respondents

Reasons for Decision

of the
Honourable Madam Justice B.E. Romaine

L Introduction

[1] In the course of the cross-examination of Dr. Deena Hinshaw, Alberta's Chief Medical
Officer, during the hearing of a constitutional challenge to certain orders made by Dr. Hinshaw
under the Public Health Act with respect to the COVID-19 pandemic (the "impugned Orders"),
Dr. Hinshaw was asked "can you tell us what recommendations you made to Cabinet that were
either ignored or where you were given instructions opposite to your recommendations?"
[2] Counsel for the Defendants Her Majesty the Queen in right of the Province of Alberta
and Dr. Hinshaw objected to the question, citing public interest immunity. Counsel for the
Defendants also produced a Certificate of a Member of the Executive Council issued pursuant to
section 34(4)-(5) of the Alberta Evidence Act, which states that Dr. Hinshaw's discussions with
 Page: 2

Cabinet involve Cabinet's considerations in making decisions on how to respond to the COVID-
19 pandemic, which involve ongoing important and significant public policy issues.
[3] Sonya Savage as Acting Minister of Justice and Solicitor Justice of Alberta therefore
certified that any information that Dr. Hinshaw has on what was said by or to Cabinet members
in relation to the COVID-19 pandemic and Alberta's actual or potential responses to it must be
kept confidential and not disclosed.
[4] The Certificate states that:
Disclosure ofthis information would be both(a) not in the public interest, and(b)
prejudicial to those not involved in this litigation, as the precedential impact of
being compelled to disclose confidential Cabinet discussions in this context could
impede the free flow offuture Cabinet discussions, thereby negatively impacting
the democratic governance ofthe Province of Alberta.
[5] The Plaintiffs submit that public interest immunity does not apply in this instance or with
respect to this question, and that the Defendants in claiming public interest immunity are
attempting to use this form of privilege to shield the Alberta government from allegations of
political interference with respect to decisions made under the Public Health Act.
[6] After hearing submissions on the issue, I proposed to counsel that I would ask Dr.
Hinshaw three specific questions in a private hearing, which would enable me to address the
factors relevant to balancing the public interests in confidentiality and disclosure concerning
public decision-making referred to by the Supreme Court in British Columbia (Attorney
General) v Provincial Court Judges Association ofBritish Columbia,2020 SCC 20 at para 101
C'BC Judges').
[7] Counsel for both parties agreed to this process. Counsel for the Defendants asked that if I
decide that public interest immunity did not apply, and intend to disclose the answers to the
questions, I would advise them in advance so that they could consider applying for a stay from
the Court of Appeal.
[8] The questions that I asked Dr. Hinshaw are as follows:
1. Did the Premier and Cabinet, including the PICC and the EMCC (the "Cabinet") ever
direct you. Dr. Hinshaw, to impose more severe restrictions in your CMOH orders
than you had recommended to them?

2. Did Cabinet ever direct you to impose more severe restrictions on particular groups
such as churches, gyms,schools, and small businesses than you had recommended to
them?

3. Did you ever recommend to Cabinet that restrictions should be lifted or loosened at
any period oftime and that recommendation was refused or ignored by Cabinet?

IL Analysis
1. Effect of the Certificate under Section 34(4)-(5) of the Alberta Evidence Act
[9] Section 34(4)-(5) of the Alberta Evidence Act states:
 Page: 3

34(4) An employee shall not disclose or be compelled to disclose information

obtained by the employee in the employee's official capacity ifa member ofthe
Executive Council certifies that in the member's opinion
a) it is not in the public interest to disclose that information, or
b) the information cannot be disclosed without prejudice to the
interests of persons not concerned in the litigation
(5) The information certified under subsection(4)is privileged.
[10] While the Supreme Court in Babcock v Canada (Attorney General), 2002 SCC 57 at
paras 19-20 stated that the common law on public interest immunity could be varied by statute,
and that section 39 ofthe Canada Evidence Act did in fact modify the common law, the
Defendants concede that the wording ofthe Alberta Evidence Act is different from the Canada
Evidence Act, and that it likely does not oust the common law: Alberta (Environment) v
Mannix, 1981 ABCA 189. In Mannix,a decision that pre-dated Babcock,the Alberta Court of
Appeal stated that section 34(4) merely furnished a statutory format for the taking of an
objection by an employee. Thus,the Defendants take the position that section 34(4)-(5) provides
a procedural mechanism for raising an objection. This decision thus proceeds on the basis on that
assumption. The Court in Mannix also confirmed that the privilege bestowed by s.34(4) applied
to information, not only documents: para 6.
2. Does the privilege bestowed by public interest immunity apply to the challenged
question?
A. Relevance

[11] The Court at para 73 ofBC Judges describes a two-stage process to determine whether a
claim to public interest immunity will succeed.
[12] First, a "threshold showing" of relevance is required. Before a reviewing court can, in a
case like this, question a witness with respect to a claim of public interest immunity,the party
seeking an answer to the question on which such a claim has been made must first establish that
there is some basis to believe the answer to the question may contain evidence that is relevant to
an issue in the proceeding, evidence "that has some tendency as a matter of logic and human
experience to make the proposition for which it is advanced more likely than the proposition
would be in the absence ofthat evidence": para 57,citing R v White, 2011 SCC 13 at para 36.
[13] The relevance ofsuch evidence must be tested in relation to the issues this Court must
determine in the litigation before it: BC Judges at para 59.
[14] It is clear that one ofthe issues in this case is, ifthe impugned Orders are found to have
violated the rights ofthe Plaintiffs under the Canadian Charter ofRights and Freedoms, Part 1 of
the Constitution Act, are they nevertheless justified under section 1 of the Charter as being
"reasonable limits prescribed by law as can be demonstrably justified in a fi-ee and democratic
society." Important to that analysis is the question of whether the impugned Orders impaired an
established right as little as reasonably possible: R v Oakes,[1986[ 1 S.C.R. 103, as amended
and expanded in subsequent decisions.
[15] The Plaintiffs also seek a declaration that the impugned Orders are ultra vires section 29
ofthe Public Health Act. It is an open question at this point ofthe proceedings whether the
Plaintiffs' pleadings extend to this issue in terms ofthe process followed by the Chief Medical
 Page: 4

Officer before she issued the impugned Orders, but the potential exists that evidence may be
admissible and relevant on this question.
[16] While the answer to the question as posed by the Plaintiffs' counsel is too broad to pass
this threshold showing of relevance, the answer to narrower and more focused questions of
whether Cabinet ever directed Dr. Hinshaw to impose more severe restrictions in her Orders than
she recommended, whether Cabinet had directed her to impose more severe restrictions on
particular groups than she had recommended, and whether Dr. Hinshaw had ever recommended
that restrictions be lifted or loosened and had that recommendation refused or ignored would be
relevant to the issues before this Court. In narrowing the questions, I was cognizant ofthe
Court's caution that judicial inspection is only appropriate where it is strictly necessary: para 72.
[17] As Babcock notes, however, something more than relevance is necessary to strike the
appropriate balance between respecting Cabinet confidentiality and maintaining the overall
integrity ofthe proceeding: paras 70 and 81.
3. Exception to a Claim of Public Interest Immunity
[18] The next part ofthe analysis set out in EC Judges is whether the answers given by Dr.
Hinshaw to the Court's questions are inadmissible in the proceeding because of a claim of public
interest immunity.
[19] As noted in BC Judges, public interest immunity is rooted in the principle that there is a
strong public interest in maintaining the confidentiality of deliberations among ministries of the
Crown: para 95, citing Carey v Ontario,[1986] 2 S.C.R. 637 and Babcock at para 60. Ministers
of the Crown must be free to express their views in Cabinet deliberations, free from the risk of
having their public defence ofthe policies ofthe government criticized if such policies are
inconsistent with their private views.
[20] The Court in Babcock noted at para 18
If Cabinet members' statements were subject to disclosure. Cabinet members
might censor their words, consciouslv or unconsciouslv. Thev might shv awav
from stating unpopular positions, or from making comments that might be
considered politicallv incorrect. The rationale for recognizing and protecting
Cabinet confidences is well summarized by the view of Lord Salisbury in the
Report ofthe Committee ofPrivy Counsellors on Ministerial Memoirs, January
1976, at p. 13:
A Cabinet discussion was not the occasion for the deliverance of
considered judgements but an opportunity for the pursuit of
practical conclusions. It could only be made completely effective
for this purpose if the flow of suggestions which accompanied it
attained the freedom and fullness which belong to private
conversations - members must feel themselves untrammelled by
any consideration of consistency with the past or self-justification
in the future...The first rule of Cabinet conduct, he used to declare,
was that no member should ever "Hansardize" another- ever
compare his present contribution to the common fund of counsel
with a previously expressed opinion.
 Page: 5

The process of democratic governance works best when Cabinet members

charged with government policy and decision-making are free to express
themselves around the Cabinet table unreservedly.
[21] However,the Supreme Court has rejected absolute Crown privilege and instead
recognized a qualified public interest immunity: BC Judges at para 99, citing Smallwood v
Sparling [1982]2 S.C.R.686 and Carey. As the Court in BC Judges states,"[p]ublic interest
immunity prevents the disclosure ofa document where the court is satisfied that the public
interest in keeping the document confidential outweighs the public interest in its disclosure:"
paras 99-100.
[22] The Defendants bear the burden of establishing that the evidence should not be disclosed
because of public interest immunity: BC Judges at para 102.
[23] While most of the authorities on public interest immunity arise in the context of
objections to production of documents,the Supreme Court in Smallwood v Sparling [1982]2
SCR 686 at pages 704-706 confirmed that the rule with respect to oral testimony is the same as
the rule with respect to documents.
[24] The analysis of whether public interest immunity applies requires a careful balancing of
the competing interests ofthe public interests in confidentiality and disclosure, with reference to
the specific evidence in the context ofthe specific proceeding.
[25] Carey sets out six factors relevant to this balancing, as described at para 101 ofBC
Judges:
(1) the level of decision-making process;
(2) the nature ofthe policy concerned;
(3) the particular contents of the documents;
(4) the timing of disclosure
(5) the importance of producing the documents in the interests ofthe administration of
justice; and
(6) whether the party seeking the production ofthe documents alleges unconscionable
behaviour on the part ofthe government.
[26] In this case, the first two factors weigh in favour of keeping the evidence confidential.
The Alberta Cabinet decision-making process is the highest level of decision-making within the
provincial executive, and the COVID-19 pandemic is an important, significant, and politically
sensitive public policy issue.
[27] However,the questions posed to Dr. Hinshaw and the answers she gave do not reveal
disagreements among ministers or the views ofindividual ministers. They do not directly reveal
considerations put before Cabinet, other than to reveal whether or not Cabinet directed Dr.
Hinshaw to impose limitations in the impugned Orders that were more restrictive than she had
recommended. They do not reveal the specifics of her recommendations. The content of her
answers thus weighs in favour of disclosure.
[28] The timing of disclosure is neutral. While measures to address the COVID-19 pandemic
are ongoing, the impugned Orders have been replaced with subsequent Orders or are spent. The
reasonableness ofthe limits imposed by these Orders is the issue before this Court, not
government policy in general with respect to COVID-19. As I have noted previously, this is not a
 Page:6

public inquiry into the decisions or behaviours ofthe Alberta government during the pandemic.
The questions before me are narrower.
[29] The first four factors set out in Carey relate primarily to the public interest in keeping the
information confidential, while the last two relate to the public interest in disclosure. The most
relevant of these in this case is the importance to the administration ofjustice of producing the
information, the fifth factor.
[30] While the Plaintiffs submit that Cabinet is guilty of unconscionable behaviour(the sixth
factor), their allegations relate to litigation strategy, and not conduct that would rise to the
serious level that would justify disclosure as described in the authorities with respect to this
factor.

[31] With respect to the fifth factor, a strong countervailing public interest in disclosure will
usually be necessary to justify the disclosure ofevidence conceming Cabinet deliberations: BC
Judges at para 112.
[32] In this case, such a strong countervailing public interest exists. This is an important case
involving the constitutionality of CMOH Orders that the Plaintiffs allege infringed their Charter
rights. A determination of whether or not Cabinet directed Dr. Hinshaw to impose restrictions
more rigorous than her recommendations or targeted more specifically on specific groups of
citizens is necessary to ensure that the case can be adequately and fairly presented to ensure that
this Court is able to conduct a meaningful analysis of potential Charter breaches and of the limit
on rights set out in section 1 of the Charter.
[33] Therefore, it is not necessary for me to decide whether public interest immunity applies
to protect the process of democratic governance by allowing Cabinet members to be free and
candid among themselves during their deliberations. The limited nature of the questions and the
fact that the answers would not disclosure "deliberations" of Cabinet or information that would
offend the underlying purpose of public interest immunity -to protect the process of democratic
governance are not issues that this Court is required to address in the circumstances.
[34] I find that, whether or not the evidence falls within the scope of public interest immunity,
it is admissible as both relevant and necessary to fairly dispose of this case and to assist the Court
in determining the facts upon which the decision in the case will depend. In the context ofthis
specific evidence and this specific case, the public interest in disclosing Dr. Hinshaw's answers
to the questions posed by the Court outweighs the public interest in keeping the evidence
confidential.

[35] The answers to the questions will therefore become part ofthe hearing record.
Dated at the City of Calgary, Alberta this 26**^ day of April, 2022.

B.E. Romaine
J.C.Q.B.A.
 Page: 7

Appearances:

Jeffrey R. W. Rath & Kathryn Newton

for the Applicant, Rebecca Marie Ingram

Leighton Grey, QC
for the Applicants, Heights Baptist Church, Northside Baptist Church, Erin Blacklaws
and Tony Tanner

Nicholas Parker, Nicholas Trofimuk & Brooklyn LeClair

for the Respondents