May 1st, 2020
CALGARY: The Justice Centre today confirmed it has filed a legal challenge to Bill 10’s amendments to the Public Health Act. Bill 10 was rushed through the Legislative Assembly of Alberta in under 48 hours, from March 31 to April 2, 2020.
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 now allows 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 has claimed that it needs extra “flexibility” to respond to the coronavirus. To date, however, provinces across Canada are managing the state’s response to the coronavirus without attempting to suspend democratic and constitutional checks and balances regarding law making. The Legislature continues to be available. The government has not responded to the question of why it thinks that the Health Minister is wiser than the entire Legislature for the purposes of making new laws.
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.
Justice Centre President John Carpay characterizes Bill 10 as ”a betrayal of the electorate and of the rule of law.” He notes that Bill 10 allows “a single politician to behave as though he or she has the power of a legislative majority to make laws for millions. This is an affront to democracy and constitutionalism.”
With many courts currently closed or highly restricted to criminal law and some family law matters, 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.
“In a public health emergency, if a cabinet minister creates a new law under this amended Act, democratically elected MLAs will have no opportunity to challenge the legislation, request amendments, and take a stand against government overreach in an effort to represent the views of their constituents. A legal challenge is necessary to bring judicial oversight to bear over the actions of the government,” concludes Carpay.
EXECUTIVE SUMMARY OF BILL 10 LEGAL CHALLENGE
The Justice Centre is a non-partisan charity which exists to defend the Constitution’s protections for fundamental rights and freedoms, and to educate the public about constitutional issues.
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.
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.