Justice Centre for Constitutional Freedoms v. Alberta

Bill 10, the Public Health (Emergency Powers) Amendment Act, 2020, is the controversial legislation Premier Jason Kenney’s UCP rammed through the legislature in 48 hours in the spring of 2020, which transferred broad law-making power to his Minister of Health Tyler Shandro. The grant of such power to one individual to amend any existing law as that sole individual sees fit is unprecedented in the history of Canada.

On April 30, 2020, the Justice Centre filed a legal action challenging the constitutionality of the two delegating provisions, section 52.1(2)(b) and section 52.21(2)(b) of the Public Health Act as amended by Bill 10.

Prior to Bill 10, the Public Health Act already gave extraordinary powers to Cabinet, the Minister of Health, and the Chief Medical Officer in the event of a public health emergency. These existing powers included taking citizen’s real or personal property without consent, authorizing entry into a person’s residence without a warrant, requiring mass immunization of the public, and requiring mass public testing. Under these existing provisions, a minister could suspend – for up to 60 days – the operation of any existing law.

Adding to these existing powers, Bill 10 allowed a single Minister to unilaterally make new laws and create new offences for the populace without consultation with the Legislative Assembly. Bill 10 also raises maximum individual penalties for violating the Public Health Act to the eye-watering sum of $500,000. The Public Health Act now extends the power of Ministers to make new law for a period of up to 270 days, or even longer.

The Alberta Government claimed that it needed extra “flexibility” to respond to the coronavirus.

Further, the Public Health Act’s emergency transfer of power from the Legislative Assembly to the provincial cabinet date back to a time when it would have been near-impossible for MLAs to meet in person. In view of today’s technology, there is no reason why the Legislature cannot meet virtually as necessary and required.

With many courts closed or highly restricted to criminal law and some family law matters during the period since March 2020, the usual checks and balances are not in place to protect citizens from government abuse.

The United Conservative Party used its majority to pass Bill 10, the Alberta Public Health (Emergency Powers) Amendment Act, 2020 on April 2, 2020. Passed with only 21 out of 87 elected MLAs present and voting on the final reading, Bill 10 provides sweeping, extraordinary, and nearly unlimited powers to any government minister at the stroke of a pen.

EXECUTIVE SUMMARY OF BILL 10 LEGAL CHALLENGE

In its filed court application, the Justice Centre seeks declarations pursuant to section 52(1) of the Constitution Act, 1982, that various sections of the Public Health Act, as amended by Bill 10:

  1. Unconstitutionally delegate the exclusive power of the provincial legislature to enact laws;
  2. Unconstitutionally eliminate the requirement of Royal Assent for new laws;
  3. Violate the unwritten constitutional principles labelled by the Supreme Court of Canada as the democratic principle and the separation of powers by providing for the enactment of laws, without legislative oversight, for a potentially indefinite time period without any participation or input from the citizens of Alberta;
  4. Unconstitutionally give the provincial legislature power to amend the province’s constitution without complying with the Constitution’s requirements; and
  5. Violate the unwritten constitutional principle of the rule of law by:
 a. subjecting citizens to unpredictable and potentially arbitrary law-making and executive action for an unspecified period of time;
 b. rendering meaningful judicial review of ministerial decisions impossible due to the lack of legislative parameters constraining executive action; and
 c. permitting Cabinet to reissue fresh declarations of emergency without express renewal by the Legislative Assembly.

The legal challenge asks the Court to strike down the complained of sections as unconstitutional. Counsel for Alberta informed the Court several times on the record that in fact Minister Shandro’s representations are not binding on the government of Alberta. Counsel for Alberta further informed the Court that he has no information when Bill 10 might actually be repealed.

On March 31, 2020, Bill 10: Public Health (Emergency Powers) Amendment Act, 2020 (Bill 10) was introduced in the Legislative Assembly. It came into force two days later on April 2, 2020.

Bill 10 empowers any Minister of the Alberta Government (not just the Health Minister) to act as though a legislative majority was personally vested in her or him, during a declared public health emergency. A Minister may create new laws, including offences with penalties, without the new law being considered, scrutinized or debated by the Legislative Assembly.

The Justice Centre relies on the Constitution Act, 1867 and the Constitution Act, 1982, as well as other statutory authorities, to lay the foundation for a legal challenge based on the delegation of exclusive legislative powers to the provincial legislatures. The Originating Application argues that law-making powers are constitutionally-required to be used by duly-elected legislatures, and not by individuals. Both constitutionalism and the rule of law are rendered meaningless if one minister can make laws unilaterally for everyone.

On March 22, 2021 Justice Anne Kirker of the Alberta Court of Queen’s Bench issued her decision dismissing the constitutional challenge against Alberta’s Bill 10.  The Court ruling decided that, since representatives of the Alberta government had publicly stated to reporters that Bill 10 would be repealed at some point, it could not be legally challenged. The Justice Centre immediately filed an appeal, and the Notice of Appeal states that the decision is an error of law.

Since the filing of the lawsuit, the case has been slowed due to delay tactics and procedural wrangling by the government, and other systemic delays due to court closures and Covid. In dismissing the constitutional challenge against Bill 10, Justice Kirker relied on statements made by Health Minister Shandro from over five months ago, on October 15, 2020, that these sections enacted by Bill 10 would be repealed.

Despite these promises, Bill 10 was not repealed until April 2021, and it was replaced by Bill 66: Public Health Amendment Act, 2021 (“Bill 66”). Bill 66 will repeal select provisions of the Public Health Act that are part of existing legal challenges and that have been the subject of broad public concern and outcry.

This matter was at the Alberta Court of Appeal on November 10. A decision is pending.

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