Apr 6th, 2020
The passing of Bill 10 means that, in addition to the already existing powers under the Alberta Public Health Act, any single politician can now also write, create, implement and enforce any new law, without approval or consultation.
Jason Kenney’s United Conservative Party used its majority to pass Bill 10, the Alberta Public Health (Emergency Powers) Amendment Act, 2020, introduced on March 31 and approved on April 2. Hastily pushed through the Legislative Assembly in less than 48 hours, with only 21 out of 87 elected MLAs present and voting on the final reading, Bill 10 provides sweeping and extraordinary powers to any government minister at the stroke of a pen. (The bill on Alberta government website: https://docs.assembly.ab.ca/LADDAR_files/docs/bills/bill/legislature_30/session_2/20200225_bill-010.pdf)
The passing of Bill 10 last week means that, in addition to the already existing powers, one single politician can now also write, create, implement and enforce any new law, simply through ministerial order, without the new law being discussed, scrutinized, debated or approved by the Legislative Assembly of Alberta.
A cabinet minister can now decide unilaterally, without consultation, to impose additional laws on the citizens of Alberta, if she or he is personally of the view that doing so is in the public interest.
Further, the new law can be made retroactive to the time when the public health emergency was declared. This includes the right of government to create new offenses, again without oversight from the Legislative Assembly of Alberta. Bill 10 also increases the maximum penalty for contravening the Public Health Act from $2,000 to $100,000 (first offence) and from $5,000 to $500,000 (subsequent offence).
With many courts currently closed or highly restricted to criminal law and some family law matters, the usual checks and balances to ensure a democratic balance in our system are limited or non-existent.
The Public Health Act already had provisions in place for government to take exceptional measures, if the cabinet decided there was a significant threat to public health. Under existing legislation, section 52.1 of the Public Health Act previously allowed ministers to “suspend or modify the application or operation” of an existing law temporarily, in circumstances where the cabinet had declared a public health emergency. Under these existing provisions, a minister could suspend – for up to 60 days – the operation of any existing law, as he or she saw fit, if a public health emergency is declared.
While a ministerial order to suspend laws can last for only 60 days, the Public Health Act does not prevent a new order from being issued as soon as the previous one has expired.
The Public Health Act says that a declaration of a “public health emergency” will expire in 90 days, but the Act contains other provisions which permit the cabinet to extend lapsed orders, so in practice there is no clear limitation as to how long these restrictions and new laws can continue. The constitutionality of this provision of the Public Health Act has never been challenged.
“Bill 10 gives one single Minister the power to unilaterally make new laws and offences for the entire province,” stated Jay Cameron, Litigation Manager for the Justice Centre.
“It is no consolation to Albertans that any new laws a Minister creates might only be in force for only 90 days. Albertans have a constitutional right to have their elected representatives involved in the making of new laws, especially the making of laws which dramatically infringe on their own civil liberties. Albertans have not given this government a mandate to override the basic tenets of representative democracy and bestow on one person the right to override the rights of millions because it is his opinion that he should do so”, stated Cameron.
“This concentration of power in one individual, without meaningful accountability, opens the door for widespread abuse of civilians. Bill 10 is foreign to Canada’s system of government with its checks and balances, and its limits on the use of government power. Alberta citizens ought to be deeply concerned.”
“Any response by public authorities which restricts civil liberties, even in an emergency, must be a minimal impairment of those liberties, and have a projected expiration date. In Canada, the severe curtailment of civil liberties without projected timelines for their reinstatement, the shutdown of economic activity and resulting job losses, the increase of human suffering through confinement and restriction of liberty, and the closure of courts preventing justice and due process, are at direct odds with Charter-protected personal rights, individual freedom, and constitutional guarantee to be free from government abuse and overreach,” concluded Cameron.
Analysis of Part 3 of Alberta’s Public Health Act: (Communicable Diseases and Public Health Emergencies), by John Carpay, April 7, 2020
Bill 10: Public Health (Emergency Powers) Amendment Act, 2020 (Shandro)
Detailed list of readings and timelines of Bill 10 passage
Read more about the Justice Centre’s response to COVID-19, emergency powers and liberty, including columns, videos and podcasts.
The Alberta Government Hansard: the Official Opposition debates and concerns on Bill 10, starting at page 426.
To view a short video synopsis of this new Alberta legislation, click HERE.