Health Minister challenged over use of new Bill 10 powers to violate confidentiality of patient medical information


CALGARY:  The Justice Centre is challenging the Alberta government and Minister of Health Tyler Shandro over using sweeping new powers under the Public Health Act via Bill 10 to provide police across the province with confidential patient medical information.

On his official Twitter on May 5, 2020, Shandro announced: “Effective immediately under a new Ministerial Order – Alberta Health will be able to provide information to police, confirming whether or not an individual has tested positive for COVID-19″. The Justice Centre has already filed a legal challenge to Bill 10’s amendments to the Public Health Act after determining that the Bill would allow a single minister to unilaterally make new laws and create new offences.

Bill 10 was rushed through the Legislative Assembly of Alberta in under 48 hours and passed on April 2, 2020 with only 21 out of 87 elected MLAs present and voting on the final reading. It provides sweeping, extraordinary, and nearly unlimited powers to any government minister at the stroke of a pen. 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 include taking a 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 imposing mass public testing. Under these existing provisions, a minister could suspend – for up to 60 days – the operation of any existing law.

The Justice Centre warned last month that adding to these existing draconian powers, Bill 10 would allow a single Minister to unilaterally make new laws and create new offences for the populace without consultation with the Legislative Assembly. In response to concerns, the government initially claimed the changes were “minor” and “technical” in nature.

Concerned Albertans wrote scores of letters to various UCP MLAs, expressing their objection to the government overriding the principles of democracy and constitutionalism. Various MLAs responded with a form letter which claimed that Bill 10 “does not create new powers for politicians to implement any law that they choose during an emergency, as some critics have claimed.”

The assertion from the MLAs has been shown to be demonstrably false, as the new Ministerial Order does precisely that. Minister Shandro has utilized Bill 10 to unilaterally create new law by himself, bypassing the Legislature. Bill 10 added section 52.1(3) to the Public Health Act, which allows the Health Minister to ”make an order without consultation”. This provision was utilized to amend the Public Health Act so that “information obtained by the Chief Medical Officer” can be disclosed to “any police service”, as “police officers need to know whether an individual has tested positive for COVID-19” to allow police the ability to comply with quarantine orders.

However, the newly added provision is poorly worded and drafted broadly enough to allow for the blanket release to police of the names of all Albertans who have tested positive for COVID-19, and perhaps even the medical records of those who have not.

Minister Shandro’s new law contains no safeguards outlining the use, storage and retention of the personal data by police. It is unclear why the names of people who once tested positive for the virus and have recovered should be conveyed to police, or how long this information will remain in the police’s possession. There are no limitations on how the police may use this private and personal information. There is no clause that mandates that the information will be destroyed at a later date. Providing the personal information of patients to police so that it can be accessed at the police’s discretion is in effect a warrantless search without judicial checks and balances, and an alarming breach of privacy rights.

Knowledge of whether an individual has, in the past, tested positive or negative for COVID-19 opens the door to abuses of power, discrimination and over policing, which is an increasingly problem in Alberta.

“Minister Shandro’s unilateral creation of new laws without legislative involvement illustrates the extraordinary power that Bill 10 has given one politician. Minister Shandro’s new law is broad, and has all the markings of an unconstitutional intrusion on the lives and personal information of Albertans, and in our view constitutes an unjustified infringement of the right to be secure against unreasonable search or seizure as protected by section 8 of the Canadian Charter of Rights and Freedoms. The Constitution protects against the unreasonable sharing of personal information without consent by and between government bodies,” notes lawyer Jay Cameron, Justice Centre Litigation Director.

“Individuals have a reasonable expectation of privacy regarding their personal medical information, including and especially the results of laboratory tests. Individuals who have consented to COVID-19 testing have done so expecting they have constitutional rights to privacy of their medical information,” adds Mr. Cameron. “The existence of a declared public health emergency does not suspend the protections of the Charter.”

The Justice Centre is considering additional legal action as a result of the creation of Minister Shandro’s new law.