Advocacy groups raising red flags about legality of Alberta, B.C. COVID-19 legislation

Law360 Canada (September 4, 2020, 1:29 PM EDT) -- The COVID-19 pandemic struck like lightning, forcing many governments across Canada to take extraordinary steps to combat the spread of the virus. But opposition is rising among advocacy groups to some of those steps, who say they have decreased accountability and given rise to an expansion of powers which may run afoul of Canada’s constitutional principles.

The Calgary-based Justice Centre for Constitutional Freedoms (JCCF) has filed a challenge against Alberta’s Public Health (Emergency Powers) Amendment Act, also known as Bill 10. It claims the bill is a violation of the Constitution Act, 1867 as it moves decision-making authority from the elected legislature to cabinet and gives ministers power to make new law which is essentially without limits.

JCCF litigation manager Jay Cameron said Bill 10, which was passed by Premier Jason Kenney’s United Conservative Party (UCP) government in 48 hours, is a “betrayal of electoral trust because people elected members of the legislature to make decisions on their behalf.”

“The system of the rule of law and the checks and balances that we have is something that has to be recalibrated and reaffirmed,” he said. “When you start to have movements from governments who are interested in as much power as they can obtain to bypass those checks and balances, that ought to be of grave concern.”

And the JCCF is not alone in its concerns. The British Columbia Civil Liberties Association (BCCLA) has petitioned the court for intervener status in the challenge. Perry Mack, who is representing the BCCLA, said under the guise of a public health emergency there has been a displacement of broad constitutional principles.

“And these are principles which have persevered through many other emergencies in the history of our country,” he said. “One of the reasons why we have a legislative process is to make sure that we don’t cause unintended consequences, such as harming minorities. So, there are some very high level theoretical concerns about what the consequences of this can be if this becomes an accepted way to do the business of government.”

And concerns about overreach are not limited to Alberta’s borders. The BCCLA has also pledged to pressure the B.C. government to roll back the powers it gave itself under that province’s COVID-19 Related Measures Act.

BCCLA executive director Harsha Walia said she is concerned because the legislation “grants exceptional powers to the provincial government.”

“Under this new law, the provincial government can change any legislation during the pandemic or any emergency, without approval from the legislative assembly and without public oversight,” she said. “These are extraordinary new powers that go beyond the scope of dealing with the emergency itself and significantly restrict government accountability, public debate and oversight and the heart of the democratic process.”

But Brendan Wright, spokesperson for B.C.’s Ministry of the Attorney General, said the province “needs legal tools to transition smoothly out of the state of emergency by providing certainty and predictability to British Columbians.” He said the Act provides several accountability features “which reflect the importance of balancing the need to act swiftly in the public interest during and after an emergency with the need to be accountable to the public and the legislative assembly.”

“Drawing on best practices from other Canadian provinces, the power to modify or suspend the operation of other laws is provided to cabinet, rather than a single minister,” he said. “This increases accountability and also ensures that ministers with the appropriate expertise are involved in making these decisions.”

Abby Deshman, criminal justice program director at the Canadian Civil Liberties Association (CCLA), said from her perspective a number of the orders Alberta and B.C. made at the beginning of the pandemic were legally dubious and the provincial legislation was an “attempt to revamp what their legal authority is,” pointing to the fact that B.C. Ombudsperson Jay Clarke determined two orders made by B.C.’s Minister of Public Safety and Solicitor General Mike Farnworth in the early days of the pandemic were contrary to law.

“When a government just goes back in to legislate over their legal overreaches it really undercuts those democratic limits on power, which were put in place for a good reason because emergency powers are open to abuse,” she said. “The idea of retroactively declaring an illegal act legal is a really concerning action.”

Deshman said the CCLA’s concerns go beyond B.C. and Alberta, noting Ontario has passed a bill allowing government to make, expand and change existing orders without having to go back to the provincial legislature to declare an emergency.

“I think every time emergency legislation is used, we learn something,” she said. “I think it is entirely reasonable to have a conversation about which government actions were necessary and if we need changes to our general emergency framework. But when some of these changes are being done to cover excesses of legal authority, it is not an honest democratic conversation.”

Cameron said there will likely be another case management conference for their claim by the end of September, and the province has filed an application to have it struck on the basis its actions were lawful and there is no cause of action pleaded. But Cameron said the JCCF intends to continue its challenge even if the COVID-19 pandemic ends before it gets its day in court.

“Bill 10 remains the law of the land,” he said. “So, as long as the ability exists for the government to transfer power to one minister during a declared public health emergency, we will continue.”

Representatives of the Alberta government did not respond to a request for comment by press time.

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