Unchecked authority

August 10, 2023   ·   0 Comments

By Lee Harding

Canada’s response to the pandemic has sometimes felt like a bad version of Abbott and Costello’s “Who’s on first?”, with politicians hastily transferring power to chief medical health officers to relieve themselves of responsibility and political consequences.

Now, at last, an Alberta court decision has exposed this farce.

On July 31, Justice B.E. Romaine from the Court of King’s Bench found that Alberta’s pandemic health orders overstepped governmental boundaries. The judgment underlined that these orders weren’t enacted by Dr. Deena Hinshaw, Alberta’s Chief Medical Officer of Health (CMOH) but were primarily driven by the cabinet’s decisions, with Hinshaw acting more as a rubber stamp. “While the CMOH made recommendations and implemented the decisions of the cabinet and committees through the impugned Orders, she deferred the final decision making to cabinet,” Romaine wrote in the decision. “The delegation of her final decision-making authority to cabinet is not permitted by section 29 of the Public Health Act.”

Leighton Grey, representing plaintiff Rebecca Ingram with the support of the Justice Centre for Constitutional Freedoms (JCCF), emphasized the ruling’s significance. He stressed that the decision challenged the unchecked authority that politicians and policymakers seemed to have assumed during the pandemic. As Grey said, the decision “recognizes, however reluctantly, that government power is limited, and that a court will tell them so. The rule of law was affirmed.”

The proceedings did not leave Hinshaw unscathed. In April 2022, she was asked under oath what expert information she had when the public health orders were made. Hinshaw admitted she was unaware of the potential harms of compelling elementary students to wear masks when the orders were put into place. However, a memo sent to Premier Jason Kenney on February 7, 2022, on which Hinshaw was copied, stated that masks can disrupt learning and interfere with children’s social, emotional, and speech development by impairing verbal and non-verbal communication, emotional signals and facial recognition.

Unfortunately, the court dismissed an interlocutory application to return Hinshaw to the witness stand to explain the contradiction.

Nevertheless, Grey believes Romaine’s ruling has significant ramifications. Albertans penalized for opposing what are now deemed illegal health orders can contest those charges, shifting the narrative from defending personal choices to challenging governmental overreach. “Hundreds of ongoing prosecutions in Alberta have been vitiated [spoiled], and the Alberta government now faces massive civil liability,” Grey said.

However, there’s a downside. The likelihood is that taxpayers, rather than those in power, will bear the brunt of the financial consequences that emerge from these lawsuits and potential compensations.

Romaine’s verdict, while highlighting the procedural flaws, did acknowledge the health orders’ intention to safeguard the public. Yet, her phrasing was muddled, leading the Justice Centre to counter her claims by pointing out the lack of comprehensive data or studies the government presented as justification for their strict lockdown measures.

The timing is also questionable. JCCF initiated its legal challenge in December 2020, yet the government was granted an extended delay until July 2022 to back its actions. If the measures were evidence-based and thoroughly planned out, why was there a need for such a delay?

It’s evident that the response to COVID-19 in Alberta (and arguably in other parts of Canada) was disproportionately stringent. The virus, while serious, had a fatality rate more akin to a severe flu than a catastrophic plague. On the other hand, the lockdown measures wreaked havoc on the mental, social, and economic fabric of society.

Scholars like Simon Fraser University economics professor Douglas Allen have been vocal critics of these actions. His analysis in April 2021 found the cost-benefit ratio of lockdowns so egregiously bad that they could be the greatest policy catastrophe in the post-Second World War era. Yet, he was largely ignored.

Alberta’s use of emergency powers during the pandemic was always dubious. These powers are designed for temporary use in extreme scenarios. Instead, the province chose a path that undermined individual freedoms.

As the dust settles on these turbulent times, there’s an undercurrent of desire among politicians and administrative bodies that the Covid fiasco be swept under the rug of good intentions. But the reality is becoming increasingly clear: there were significant flaws in governance during the pandemic.

The day of reckoning, both legally and morally, is dawning.

Lee Harding is a Research Fellow for the Frontier Centre for Public Policy.

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