CALGARY: The Justice Centre today announced that it is appealing the March 22, 2021 decision of Justice Anne Kirker of the Alberta Court of Queen’s Bench dismissing the constitutional challenge against Alberta’s Bill 10. The Court ruling holds that, since representatives of the Alberta government have stated that Bill 10 will be repealed at some point, it cannot be challenged currently. The filed Notice of Appeal states that the decision is an error of law.
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.
Justice Centre President John Carpay has called Bill 10 a “power grab under cover of the pandemic”, the “betrayal of the electorate and of the rule of law”, and “an affront to democracy and constitutionalism”. 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Health Minister Shandro from over five months ago, on October 15, 2020, that these sections enacted by Bill 10 would be repealed.
Despite these promises, Bill 10 has not been repealed. No bill has yet been tendered in the Alberta Legislature for its repeal. 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 Counsel for Alberta further informed the Court that he has no information when Bill 10 might actually be repealed.
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, authorizing 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, for the last year during Covid, Bill 10 allows a single Minister to unilaterally make new laws and create new offences for the people of Alberta, without consultation with the elected members of 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 has extended the power of Ministers to make new law for a period of up to 270 days, or even longer.
“Bill 10 was an act of political opportunism,” states John Carpay. “Before the public, or the Legislature for that matter, could clearly understand what was occurring, the UCP transferred enormous power to their Health Minister to unilaterally make and amend laws without debate or oversight from the legislative assembly. This lawsuit is about accountability before the courts and a check on the abuse of legislative power. The appeal of Justice Kirker’s decision will be pursued expeditiously.”
