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Jay Cameron, Justice Centre for Constitutional Freedoms

New Alberta public health bill repeals controversial COVID-19 powers

Wednesday, April 21, 2021 @ 8:54 AM | By Ian Burns

The government of Alberta has introduced new legislation aimed at curbing some of the concerns raised about the powers it has used in response to the COVID-19 pandemic, but legal observers are noting it does not address concerns about too much power being put in the hands of the provincial medical officer of health to issue orders without adequate oversight by elected representatives.

Bill 66, the Public Health Amendment Act, removes one of the most controversial powers it has utilized during the pandemic — the ability of ministers to unilaterally amend legislation without having to consult the provincial legislature, a provision which was brought in last April and met with opposition from civil libertarians and a lawsuit from the Justice Centre for Constitutional Freedoms (JCCF).

Health Minister Tyler Shandro acknowledged Albertans have expressed concern that the powers given to ministers were an overreach.

“A modernized Act will help Alberta’s government respond to public health emergencies, like the COVID-19 pandemic, keeping the health and safety of all Albertans as a top priority,” he said. “But, introducing this bill will have no impact on the current public health measures in place and will not impact the ability of the government to respond to the pandemic.”

The bill also removes the authority of government to mandate immunization, as well as establish new criteria which must be met before requiring someone to be detained and new powers to address chronic diseases and preventable injuries. Shandro said the proposed amendments are a result of extensive feedback from Albertans and recommendations made as part of a review by a legislative committee.

 Lorian Hardcastle, an associate professor at the University of Calgary

Lorian Hardcastle, an associate professor at the University of Calgary

Lorian Hardcastle, an associate professor at the University of Calgary who specializes in health law and policy, said giving ministers the power to suspend or modify legislation under the Public Health Act was a response to the 9/11 terrorist attacks and concerns that the legislature would not be able to meet during a crisis.

“And the technology we had post-9/11 was not what we have now,” she said. “The power shouldn’t have been used as it was at the beginning of the pandemic, and when people started questioning it the government went ahead and expanded it. So, as far as I am concerned that is a problem that has been solved.”

But one issue that has become a big one throughout the pandemic was not addressed by the bill, said Harcastle — the public orders issued by various provincial health officers which have had a massive effect on what people can and can’t do.

“What has been interesting is this debate around whether they actually have the legal authority to issue the orders they have been issuing — prior to the pandemic the kinds of orders they were issuing were things like ordering restaurants to be closed down, but now they are ordering all of society to social distance for 10 months,” she said. “And at the same time, you have this weird dynamic where they are the ones writing the orders but at the same time they claim that they are just an adviser and the government is the one making the decisions. So, one thing I would have liked to see in the Act was for that to just all be fixed, so there is a clearer demarcation that the minister has the final say.”

 JCCF litigation manager Jay Cameron

Jay Cameron, JCCF litigation manager

JCCF litigation manager Jay Cameron said the centre’s constitutional challenge would have to be amended if Bill 66 passes because it repeals the ministerial powers provision. But he said he too had concerns with the fact the legislation did not deal with chief medical officer of health’s powers and predicted further litigation.

“I think it is clear from what has occurred in Canada over the last 13 months that health officials have too much power and not enough oversight, and Bill 66 makes that worse, not better,” he said. “It is a doubling down of the delegation of authority to one health official who is not elected, and he or she is not required to provide regular reports regarding health orders which impact millions of people — and that is a fatal flaw of the legislation.”

The centre is also challenging a recent Court of Queen’s Bench decision which found that there was no justiciable issue to be tried because provincial officials have said Bill 10 would eventually be repealed. Cameron noted the provincial Court of Appeal has agreed to fast-track that challenge.

“The government has made some efforts in Bill 66 to sort of bootstrap the orders and say they were all legitimately passed and legitimately ratified and are all valid law,” he said. “We want to see governments pay more attention to the constraints on their power, and if there is a continued failure to do that then that needs to be adjudicated.”

Bill 66 is in the process of second reading at the Alberta legislature.

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