April 14, 2020
The Albertan government has capitalised on the confusion of the coronavirus crisis to cover up past mistakes and to grant itself extraordinary powers that will last long after the crisis is over. Ever since Alberta declared that the coronavirus crisis was a public health emergency on March 17th 2020, the province has been issuing a flurry of orders and regulations that have affected all areas of Albertan public life. Violating any emergency order, for example, can result in a $1,000 fine. Did the province have solid legal authority to make all those orders? From the looks of Bill 10, which was rammed through the legislature in less than 48 hours by April 2nd, even the province was not quite sure. Bill 10 is an example of retroactive law-making and amending – going back in time to validate orders that may not have been valid when they were passed. Bill 10 was not just the province covering its tracks – it was also a power grab in the form of vastly expanded ministerial powers under emergency legislation going forward.
The first reason for the invalidity of previous orders is that the Minister of Health’s legislative amendments exceeded the authority granted to him by statute. While Alberta’s Public Health Act (PHA) grants the Minister of Health a broad variety of powers, s. 52.1 confers an especially awesome power on the Minister: the ability to independently and without consultation, “suspend or modify the application or operation” of laws. However, there is some distance between modifying the application of laws and making a formal statutory amendment. The Minister arguably did the latter when he removed a $100-per day cap for a list of offenses such as disobeying a public health order, and when he made gigantic increases to the quantum of general fines for violating the PHA – from a maximum of 2,000 to a maximum of 100,000 for a first offence, and from a maximum of 5,000 for subsequent offences to a maximum of 500,000 for subsequent offences. The wording of the Minister’s order supports the argument that it goes well beyond mere modification or suspension – section 2 of the order sought to “repeal” the previous subsection and “substitute” a dramatically different one. Essentially, the Minister was acting as if the full power of a parliamentary majority was personally vested in him, something that the statute did not authorise at the time.
The strongest evidence that the Minister of Health was on shaky ground is Bill 10’s attempt to smooth everything over. Bill 10 created a new power under s. 52.1(2)(b) – the power to “specify or set out provisions that apply in addition to, or instead of, any provision of an enactment.” That is a better description of what the Minister of Health did when he increased the quantum of fines, although that power did not exist at the time he did it. No matter, says Bill 10, because any coronavirus-related emergency order that was issued by the Minister of Health before Bill 10 was passed will now be deemed to be valid.
Bill 10 did not just correct errors in the past – it was also a prospective power grab. Now, a single minister can freely legislate, including retroactively, without accountability or restraint (except with regard to tax, public funds, or creating new offences with retroactive application). There may be some argument for swift legislative ability in a time of crisis, although it would not create undue delay to at least have the provincial cabinet approve each measure, which would also have the benefit of the added perspective from different areas of governance. However, any order thus issued by the minister without consultation can continue to apply for 6 months after the expiry of the public health emergency as per s. 52.811 of the PHA. Given the protracted applicability of these laws, concentrating this much power in one person is excessive.
The second reason for invalidity has to do with levying large fines for actions that Albertans did not know were against the law. On March 27, 2020, the provincial government amended regulations to provide for a $1,000 fine for breaching an order by the provincial health officer. Any such changes in regulations are, of course, subject to notice requirements – s. 3(5) of the Regulations Act states that such changes are not valid against persons who have not been given actual notice of them and if they have not been published in the Alberta Gazette. As of writing, the new $1,000 fine has still not been published in the Alberta Gazette. It is not clear whether Alberta’s press releases constitute the actual notice required by the Regulations Act – especially against vulnerable groups such as refugees who may not be familiar with English or French.
Whether Alberta had been giving actual notice of its orders, Bill 10 relieved the province of the burden to notify citizens before slapping them with a $1,000 fine; the notice requirement was removed not just going forward but also from the point that the fine was enacted, so that any citizen who was hit with a fine back then would have to pay it whether they were given any kind of notice at all.
This is a curious approach to ensuring public health compliance. One would imagine that the purpose of issuing fines for breaching public health orders is deterrence. Yet deterrence cannot work if there is no actual notice; you cannot fear what you do not know. If the Albertan government’s sole motive was to contain the pandemic, they would make real efforts to increase transparency by instantly publishing and publicizing all their orders and new regulations. Until that occurs, levying large fines would be unfair and counterproductive.
Bill 10 is notable for its wanton use of retroactivity, a dangerous tool. If it is used too much, it encourages governments to routinely exceed their powers under the law – why bother to act legally when you can pass a law later covering up all your mistakes? These retroactive powers were also enacted secretively – they were buried in byzantine legal language that would be difficult for a layperson to understand and were not preceded by consultation or significant debate. When governments make changes as significant as Bill 10’s, they should be accompanied by explanations and clear communication. Anything less is damaging to democracy.
Jianyang (J.Y.) Hoh
Law Foundation of Ontario Public Interest Articling FellowCanadian Civil Liberties Association
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