Alberta’s legislative power grab is unconstitutional

Apr 17th, 2020

BY JOHN CARPAY – The Post Millennial

It has often been said that truth is the first casualty of war. While waging war against COVID-19, politicians in Alberta are not being truthful about their unconstitutional power grab during a public health emergency.

On April 2, Jason Kenney’s United Conservative Party used its majority to rush Bill 10 through the provincial Legislature, in less than 48 hours. Bill 10 has expanded the power of cabinet ministers, during a public health emergency, to write new laws and create new offences.

Essentially, a cabinet minister can now act as if the full power of a legislative majority was personally vested in him or her. Bill 10 has also raised maximum penalties for violating the Public Health Act to the eye-watering sum of $500,000.

The only justification for this power grab provided in the Legislature by Health Minister Tyler Shandro was to “strengthen our ability to protect the health and safety of Albertans.” Why ministers need this new power to write laws on the fly, without those laws being subjected to scrutiny and ultimately approved by the Legislature, was not explained.

Any cabinet minister, not merely the health minister, can now—for example—create a new law requiring people to install tracking devices on their cell phones, and require people to register their cell phones with the government.

Questioned about her government’s power grab by one of her constituents, Member of the Legislative Assembly (MLA) Whitney Issik could have—and should have—provided specific examples as to how and why her government might actually need these new powers to write laws on the fly.

Her email response to her constituent, provided to me by that constituent, was profoundly disconcerting:
Ms. Issik asserts that Bill 10 “clarifies” the ability of government ministers to act rapidly during a public health emergency.

“Clarifies” is obviously the wrong word, because Bill 10 adds new power under section 52.1(2)(b) of the Public Health Act: a minister’s power to “specify or set out provisions that apply in addition to, or instead of, any provision of an enactment.”

With Bill 10 now law in Alberta, one politician can legislate unilaterally, except for the power to tax, spend, and make new offences apply retroactively. This is not a “clarification” of power, but added power.

If the Criminal Code was amended to prohibit spreading misinformation about COVID-19, this would be “adding” an offence to the Code, not “clarifying” the Code. Still, Ms. Issik insists that Bill 10 merely “clarifies” that a minister “can amend any enactment that they are responsible for, through a ministerial order, when a public health emergency is declared.”

Ms. Issik then proceeds to argue that “If every order made by a minister had to pass through the Legislative Assembly we would be unable to react appropriately to a pandemic.” Very true, but nobody is objecting to Public Health Act provisions that allow ministers in an emergency to issue orders without the approval of the Legislature.

It’s when those orders amount to the creation of new laws that there is a serious problem. Ms. Issik’s tactic here is known as attacking a “straw dummy”: a non-existent position, that nobody is arguing for. Our elected officials ought to understand the difference between a minister’s power to issue orders during an emergency, versus a minister’s new power to write laws unilaterally.

Relying on repetition rather than fact, Ms. Issik then declares again: “This Bill does not create new powers for politicians to implement any law that they choose during an emergency, as some critics have claimed. Rather, it clarifies language in the Public Health Act to confirm that ministers are able to add to legislation that they are responsible for, as long as it is in the interest of the public.”

Conveniently, what might be in the “interest of the public” is determined solely by the same politician who creates a new law on the fly, in her or his sole discretion. So appeals to the “public interest” are rather meaningless. Further, since when has any minister in the history of Canada been able to unilaterally write new laws all by themselves without oversight? And how could that be “confirmed,” since it is entirely without precedent?

Ms. Issik then goes on to argue that “any orders that are issued during a public health emergency will lapse unless ratified by the Legislature.” True, except that the Public Health Act contains no prohibition on the provincial cabinet declaring a new public health emergency the moment the old one has elapsed. Powers only lapse if the Premier and cabinet want them to. Other MLAs are also using the same form letter as Ms. Issik, to send to constituents who ask inconvenient questions about Bill 10. Presumably this letter was provided to MLAs by the Premier’s spin doctors.

Criticism of Bill 10 (see page 426) has given Premier Kenney a wonderful opportunity to provide citizens with examples of the great things that the added section 52.1(2)(b) will allow cabinet minister to do, which they could not do previously. Rather than explaining why cabinet ministers need these new powers, Ms. Issik and other MLAs are claiming that cabinet ministers have not been given new powers. Truth is a casualty of the war on COVID-19.

Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (JCCF.ca).