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Changes to emergency powers in Alberta facing constitutional challenge

Tuesday, April 28, 2020 @ 12:36 PM | By Ian Burns


A legal advocacy group is moving ahead with a constitutional challenge to emergency powers adopted by Alberta in the face of the COVID-19 pandemic, despite the provincial premier saying his government planned to “go back to the drawing board” and take a second look at the law.

The Public Health (Emergency Powers) Amendment Act, also known as Bill 10, passed the provincial legislature April 2, two days after being introduced. It amends the Public Health Act to give cabinet ministers the power to “suspend or modify” the enactments they are responsible for if they are convinced not doing so will have an effect on public health, with the health minister also given the power to add or substitute anything in any enactment if he thinks it is in the public interest to do so. The bill also deems emergency orders made between March 17 and the bill being proclaimed as valid.

But the changes have raised the ire of the Calgary-based Justice Centre for Constitutional Freedoms (JCCF), which calls the bill “a betrayal of the electorate and of the rule of law.”

“Albertans have a constitutional right to have their elected representatives involved in the making of new laws, especially laws which may dramatically infringe on their civil liberties,” said JCCF president John Carpay. “With Bill 10 now in force, a single politician can 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.”

But Alberta’s premier disagreed. In a video posted on his Facebook page, Jason Kenney stated Bill 10 was a series of “minor technical amendments” to the Public Health Act that were passed on the advice of lawyers from the provincial Department of Justice because “they were contending the existing power [under the Act] to modify laws was not sufficiently expansive.”

“Here was the concern, that in a worst-case scenario the legislature itself could not meet to pass new laws because of the pandemic,” he said. “The view of our forebears who passed the original version of the Public Health Act over a century ago was, in such a situation, we need the capacity to govern, and if that means using extraordinary powers … we needed to be able to do it through ministerial order rather than passing a bill through the legislature. What Bill 10 did was give some precision to that.”

Kenney said he believed use of those powers should be limited, pointing to items such as amending the provincial Credit Union Act to temporarily suspend their requirement to have an in-person annual general meeting.

“That is the sort of thing we have been using the ministerial powers through the Public Health Act — these are not new powers we have created, these are extraordinary powers that have existed for decades,” he said. “But given the public concerns which I think are understandable, I’ve asked our lawyers to go back to the drawing board and look at possibly bringing forward amendments to the Public Health Act to narrow, circumscribe or limit what we have brought forth in Bill 10 — perhaps bring in more obvious sunset clauses for these provisions.”

Jay Cameron, JCCF litigation manager

But JCCF litigation manager Jay Cameron said the centre is still moving forward with its challenge and will address any amendments “as they arise.”

“You are bypassing democratically elected representatives and they are vesting power in a member of the cabinet,” he said. “It’s not like there was a nuclear holocaust and the legislature was wiped out, so why are the ministers in a better place to make law for millions of people than the duly constituted and elected legislature? This is not how democracy works in Canada, and we want to see it struck down.”

The JCCF noted legislators from Kenney’s ruling United Conservative Party (UCP) have been sending out a letter which argues Bill 10 “does not create new powers for politicians to implement any law that they choose during an emergency, as some critics have claimed. Rather, it clarifies language in the Public Health Act to confirm that ministers are able to add to legislation that they are responsible for, as long as it is in the interest of the public.”

But Cameron said that is “simply not true.”

“The word clarify means to make clearer something that wasn’t clear,” he said. “That’s not what Bill 10 does — it gives power to the minister to make changes to existing enactments. That is a unilateral power to make new law without the checks and balances of the legislature.”

Cara Zwibel, Canadian Civil Liberties Association

Cara Zwibel of the Canadian Civil Liberties Association said governments across the country are scrambling to deal with the fallout from COVID-19 and implementing emergency procedures, but added the most concerning thing about Bill 10 is that it is a permanent change to the law “and it was passed with very little scrutiny and very little time for thought and debate.”

“I think what they were trying to do is kind of retroactively validate some of the things they did which had arguably not been authorized by existing legislation,” she said. “There may be justification for exercising some of these extraordinary powers, but I think in this case it is concerning that there was a decision made that a permanent change had to be made so urgently.”

Zwibel said the Alberta government should do a review of the amendments once the emergency is over to see if they are still necessary, and “allow the time for debate that should have happened when the bill had passed.”

“I don’t think we’ve heard a compelling response from government about why this is necessary other than to address the fact that they had maybe already exceeded the authority they had at the time,” she said. “But I think the bigger theme is all of this becomes normalized, so when the public health emergency subsides people may be used to giving too much power away. We want people to continue to know they have the right to push back when government is overreaching.”

Kenney’s press secretary Christine Myatt said she had no further details on amendments to Bill 10.

“Please stay tuned to the legislation as it is introduced in the Assembly,” she said.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.