Alberta government must release key documents in school masking case, judge rules

The Alberta government has been ordered, again, to hand over two key documents relating to its decision earlier this year to lift the school mask mandate and block school boards from bringing in their own.

The decision this week by a Court of Queen's Bench justice in Edmonton is part of an ongoing case involving the Alberta Federation of Labour (AFL) and the parents of five immunocompromised children who are challenging the changes.

Lawyers argue Albertans have the right to know what led up the decision to lift the mandate.

However, the Alberta government claims the information should be protected by cabinet secrecy. It has been fighting to shield two key documents: a PowerPoint presentation made by the chief medical officer of health, Dr. Deena Hinshaw, on Feb. 8, and cabinet minutes from the same day.

Court of Queen's Bench Justice Grant Dunlop reviewed both documents and ruled this week they should be disclosed — in their entirety — rejecting the provincial government's argument they are covered by cabinet confidentiality.

• Alberta government memos on school masking 'damning,' union leader says

"This is really a case that is a litmus test for asking the government to account for decisions it's made and who made them," said Sharon Roberts, one of the lawyers representing the families and the AFL.

"In that regard, I think it's important.… This is part of the democratic process, as I see it."

Cabinet immunity claim rejected

Alberta Justice Minister Tyler Shandro had argued through a certificate submitted to the court that disclosure was not in the public interest and could impede the "free flow of future cabinet discussions or the preparation of materials for cabinet consideration, thereby negatively impacting the democratic governance of the Province of Alberta."

But, after reviewing both the cabinet minutes and Hinshaw's PowerPoint presentation, Justice Dunlop rejected that claim.

"The documents before me do not reveal cabinet deliberations. They contain information and options provided by the chief medical officer of health to cabinet, one recommendation and cabinet decisions. The Crown has not established a public interest requiring that those things be kept secret."

Dunlop also denied the provincial government's request that the documents be redacted to include only references to the school masking issue.

The Alberta government was given one week, until July 12, to produce the material, but it has already indicated through an email to the court that it may apply for a stay of the decision pending an appeal. That application would have to be heard within the same time period.

CBC News reached out to the province for a response to this week's decision but did not hear back before publication. A lawyer representing the province referred CBC back to the Government of Alberta.

The AFL, one of the applicants in the case, calls the latest decision a "win for transparency."

"[The justice is] basically reminding the government what they should have already known, which is cabinet confidentiality is not absolute. Never has been. Never will be. And it shouldn't be," said AFL president Gil McGowan.

"We think the public deserves to know how decisions about COVID policy are being made by our provincial governments. And that's particularly important now that we're heading into what I think will be a seventh wave."

While a final hearing in the case is set for Aug. 17-18, McGowan is worried an appeal could jeopardize the timing and the chance to have the case resolved ahead of the new school year in September.

"Unfortunately, our school boards here in Alberta have been handcuffed in their ability to keep students and staff safe ... and we want to make sure those handcuffs are removed in the face of yet another variant and a new school year."