Jun 25th, 2020
CALGARY: The Justice Centre is issuing a warning to the Alberta government and an alert to the public regarding Bill 24: COVID-19 Pandemic Response Amendment Act, 2020. Bill 24 was introduced on June 18, 2020 and has now passed first and second readings. It is a large and complex omnibus Bill which amends 15 different laws at once. This would usually be the object of intense debate in the Legislature, because one Bill is revamping so many laws at once, so quickly. A review of the Hansard debates thus far shows that Opposition MLAs have had insufficient time to understand the impact of Bill 24 and its far-reaching implications.
Buried in Bill 24, in very complicated legal language, is another UCP power grab which circumvents democracy and gives the Minister of Health and the Alberta government alarming new powers. Premier Kenney previously acknowledged public concern regarding Bill 10, and promised revisions to amend it. But instead of undoing Bill 10’s unconstitutional delegation of power from the Legislature to single cabinet ministers, Bill 24 extends these powers further. There are at least three significant areas of concern with Bill 24 that impact constitutional freedoms and our democracy.
First, Bill 24 takes the extraordinary temporary powers (section 52.6 of the Public Health Act), which are available only in the exceptional circumstances of a public health emergency, and makes some use of those powers available to the Alberta government permanently, even when no public health emergency exists.
Bill 24 would give the government a regular (non-emergency) power to enter long term care homes, an isolation area for homeless persons in Calgary, and all airports (including private boarding areas) without a warrant, and take possession of these facilities, and personal property within them. Bill 24 would also give the government permanent power to conscript people or require people to render aid, and authorize the distribution of health services in these facilities, even when Alberta is no longer in a state of public health emergency.
“While perhaps well-intended, this extension of draconian emergency powers, for use at any time without notice during non-emergencies, is a step down a slippery and dangerous slope,” stated Jay Cameron, Litigation Manager for the Justice Centre.
The Justice Centre has already taken the Alberta Government to court over Bill 10, which gave cabinet ministers new powers to write new laws and create new offences without any input from Members of the Legislative Assembly of Alberta.
“The United Conservative Party government has already shown its willingness to bypass democratic safeguards to enact authoritarian provisions, as in the broad release of private and personal health records to police services effected via Bill 10 and a unilateral Ministerial Order. Citizens ought to be wary of a government which continues to break down safeguards to increase its power,” continued Cameron.
Second, Bill 24 gives power to Health Minister Tyler Shandro to make regulations based on the Health Orders which were issued by Chief Medical Officer of Health Dr. Deena Hinshaw during the public health emergency, even though the public health emergency no longer exists. Dr. Hinshaw currently cannot issue new orders under section 29(2.1) of the Public Health Act because the state of emergency is no longer in effect. If passed, Minister Shandro has said that Bill 24 would change this, restoring Dr. Hinshaw’s law-making powers even though a state of public health emergency has not been declared, and would also give Minister Shandro the unfettered opportunity to create special Regulations for Health Orders.
Dr. Hinshaw’s Health Orders during the public health emergency bypassed the Legislature, avoiding all questions and debate about the devastating impact of her lockdown of society. After the fact analysis of the last few months evidences the dangers of putting one doctor in charge of millions of people for months on end. Dr. Hinshaw is not equipped to consider the social and economic harms that occur as a result of the prevention of commerce and the violation of Charter freedoms to move, travel, assemble, associate and worship. Further, she is not required by the Public Health Act to consult with other medical experts.
Bill 24 would give Minister Shandro the power to make Regulations regarding Dr. Hinshaw’s Health Orders, as though they were laws passed through the Legislature, when in fact they are laws created unilaterally by one doctor. The public should expect that these Health Orders, which existed only because of the public health emergency, should be discarded now that the emergency is over.
“It’s time for the regular operation of governance by and through and with the elected Members of the Legislative Assembly,” stated Cameron.
“Instead, under Bill 24, Dr. Hinshaw will be re-empowered to make Health Orders indefinitely, and her Orders will be expanded upon through Regulations created by Minister Shandro, all of which will once again happen without the active involvement of the Legislature,” explained Cameron.
The Justice Centre previously warned against the unilateral law-making powers of the Health Minister pursuant to Bill 10.
Third and finally, Bill 24 extends Minister Shandro’s release of private medical information to the police from August 14, 2020, when it would have lapsed, to December 31, 2021, for an additional 16 months. Minister Shandro unilaterally created this new law to violate patient privacy and confidentiality on May 4, 2020 by adding sections 53(4.2) and (4.3) to the Public Health Act. Minister Shandro’s new law contains no safeguards outlining the use, storage and retention of the personal data by police. No safeguards exist to clarify 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 the authorization of a warrantless search without judicial checks and balances, and it is a dangerous breach of privacy rights. Instead of reversing the unconstitutional release of patient records, or at least attempting to fix the deficiencies of Shandro’s new law, Bill 24 extends the ability to breach personal privacy for another year and a half,” stated Cameron.
Premier Kenney and Minister Shandro have both publicly stated that the circumstances of a public health emergency are no longer present in Alberta. Minister Shandro informed the Legislature on June 23 during debate on Bill 24 that the initial COVID-19 risk was “hard to scope”, and that he thought the worst case scenario was “severe”, but that “the risk as we know it today, based on our actual experience, is very different.”
“Shandro’s statements indicate awareness, if not admission, that the wholesale lockdown of Alberta was an overreaction,” commented Cameron.
Minister Shandro also stated in the Legislature on June 23 that “emergency powers should only last as long as they are needed” and that the extraordinary powers in section 52.6 are “no longer needed at this time in this province”.
“Given these statements, the Alberta government ought to be moving to protect constitutional rights and safeguards to win back public trust. Instead, it is increasing its capacity to sidestep Legislative oversight and public accountability,” stated Cameron.
“There appears to be a dangerous trend towards authoritarianism in Canada, both federally and in some provinces. Governments are exploiting COVID-19 to the detriment of democracy and the rule of law, and the lawful and democratic rights of citizens. If Bill 24 passes in its current form we will commence litigation to challenge its constitutionality,” stated lawyer John Carpay, president of the Justice Centre.