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A sign instructs people to wear masks in downtown Calgary on Oct. 30, 2020.

Jeff McIntosh/The Canadian Press

Two Alberta churches are suing the provincial government in hopes of overturning its restrictions designed to control the spread of the coronavirus, arguing the rules infringe on constitutional rights and make life unbearable.

The Baptist churches and three individuals on Friday filed a lawsuit alleging Alberta implemented restrictions without proving the pandemic is an actual emergency. The court challenge is sweeping, with alleged rights violations ranging from infringements on liberty because of a lack of access to personal care products and entertainment to breaches of equality because students in junior high and high school must study at home until the new year while younger pupils attend classes. The document argues Alberta’s rules create more physical, emotional and economic harm than they prevent.

Heights Baptist Church and Northside Baptist Church in the lawsuit allege the fallout includes “a crushing depravation of fundamental freedoms and individual liberty, the breadth and depth of which is unknown in the history of this province making life in Alberta more akin to life in a totalitarian dictatorship.”

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However, Premier Jason Kenney has rejected widespread lockdowns, arguing the economic and social damage would outweigh the benefits. He has repeatedly justified this lighter touch as COVID-19 surges in Alberta by warning against denting rights and freedoms. Alberta, for example, lacks a provincewide mask mandate, and pubs, restaurants and stores remain open, albeit with restrictions. Indoor social gatherings, however, are now prohibited, and places of worship in some parts of the province must follow occupancy restrictions and other guidelines. Legal scholars say it would be a struggle for the lawsuit to win the court’s favour.

The broad approach – the suit includes challenges based on legislative jurisdiction, the Alberta Bill of Rights and the Canadian Charter of Rights and Freedoms – hurts its credibility, said Margot Young, a professor at the Allard School of Law at the University of British Columbia.

“The lawyers and claimants just went all out with really not much attention to the reasonableness of the arguments they were making,” she said. And they overplayed their hand by, for example, comparing Alberta to a dictatorship.

“That is such an exaggerative, incredible claim, that it really does damage to whatever else they say that may have some scintilla of reasonableness in it.”

The Alberta government did not comment on the lawsuit.

Kerri Froc, a law professor at the University of New Brunswick, said the lawsuit’s more frivolous accusations overshadow those that may be more viable, such as the ones related to freedoms of religion and association. But governments are permitted to infringe on rights if the violations are reasonable and justified. Prof. Froc said she expects courts to give governments leeway in light of the pandemic.

“The Charter is [not] this magic wand that is going to thwart the government from doing any of these things that put a cramp in our style,” she said. “The Charter just doesn’t work that way.”

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On Saturday, a Manitoba judge rejected a church’s request to hold drive-in services despite restrictions on public gatherings and in-person religious events.

“The onus that an applicant must meet to obtain a stay of legislation is extremely high,” Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench said in his ruling. “I do not believe that the applicants meet their burden of showing that [they] will suffer irreparable harm if the injunction is not granted.”

The Manitoba church argued the public-health order requiring religious services to be online or via broadcast only violates freedoms of religion and association under the Charter. British Columbia in November fined a church that defied its public-health orders.

But James Kitchen, a lawyer from the Justice Centre for Constitutional Freedoms, which filed the Alberta lawsuit, said that while others believe the pandemic justifies restrictions, the province has not proven the virus, which has killed 1.5 million people, is a real emergency.

“We say it is a pandemic, but is it actually?”

He agrees COVID-19 is has killed people and is a serious problem, but that alone does not make it a pandemic. The public-health orders, he said, prevent people from living their lives with meaning. “It is destroying our society,” he said.

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With a report from The Canadian Press

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