“There is no room for the unilateral assumption of authority in a constitutional democracy.” – Nigel Bankes, U of C emeritus professor of law, on the government’s decision to rescind masking in schools.
Last week an Alberta court ruled that the Chief Medical Officer of Health’s Order rescinding masking in schools was “unreasonable” because it was not Dr Hinshaw’s decision; she merely implemented a decision of the Priorities Implementation Cabinet Committee (PICC*) and Cabinet had no authority under the Public Health Act to make such a decision.
The Court also ruled that the Education Minister’s statement that prohibited school boards from imposing mask mandates did no such thing because a prohibition could only be accomplished by regulation. Since the government had not passed such a regulation, the Education Minister’s statement did not prevent school boards from imposing mask mandates. What it did do was cause widespread confusion across the province.
A Cabinet committee made public health decisions without statutory authority? The Education minister created havoc by issuing a sharply worded prohibition with no legal effect?
These are deeply concerning actions on the part of the Alberta government that fly in the face of the rule of law.
How does this happen in a constitutional democracy?
The Court decision
Albertans had a front row seat to the colossal failure of the government’s decision-making process thanks to the persistence of a group of parents worried about their kids who were at greater risk of severe outcomes if they contracted covid. They sued the government when it rescinded mask mandates in schools.
Justice Dunlop examined the record—initially Dr Hinshaw provided 19 pages, the applicants pushed for more and she filed an amended record of 183 pages and a further amended record of 282 pages. Justice Dunlop concluded the original 19-page record formed the foundation of the government’s decision to rescind masking.
Then the Court laid out the government’s flawed decision-making process:
- Dr Hinshaw presented three options to PICC. (These options were driven by previous PICC decisions).
- PICC decided on Option 2 (this decision was made without statutory authority).
- Dr Hinshaw dutifully signed an Order reflecting PICC’s decision and when asked by the press what had changed in the last month to drop the mask mandate in schools, she deflected the question to the Health Minister.
Meanwhile the Education Minister was off on a frolic of her own, issuing a sharply worded statement prohibiting school boards from imposing mask mandates. The Court ruled that the statement was simply a statement, not a regulation, as such it did nothing but create “widespread confusion” as to its legal effect.
Where were the lawyers?
It’s not every day that a government screws up its decision-making process this badly.
When it does it’s fair to demand an explanation.
Sadly, none will be forthcoming. Dr Hinshaw has been fired. Jason Kenney is no longer premier. And many of the cabinet ministers who were on PICC are now comfortably ensconced in Premier Smith’s cabinet.
All we can do is speculate.
Why didn’t Dr Hinshaw ask for legal advice if she was unclear about her decision-making authority under the Public Health Act?
Why didn’t PICC—which was comprised of high-ranking cabinet ministers including three former lawyers, Kaycee Madu, Doug Schweitzer, and Sonya Savage, and the Health Minister, Jason Copping, who has an LLM from Osgoode Hall law school—stop to consider whether they had the statutory authority to act as they did?
The answers are:
- those involved were too arrogant or cowed to seek legal advice, or
- they sought legal advice and were given bad advice, or
- they sought legal advice, were given good advice, and ignored it.
None of these scenarios inspires confidence…let alone trust that the government knows what it’s doing.
Premier Smith could have tried to repair the damage to her government’s credibility with a statement saying she would enact the appropriate legislation to ensure any future decisions were properly grounded in statute or regulation.
Instead she doubled down saying “Our government will not permit any further masking mandates of children in Alberta’s K-12 education system.”
Not ever, not even in the case of a horrific airborne disease?
Just to be clear. Smith’s statement is a statement just like the Education minister’s statement. It is not a law or a regulation. Smith does not have the statutory authority to prohibit any further masking mandates…yet.
Smith directed the Justice minister to assess whether to appeal the Dunlop decision (it’s nuts to appeal).
She instructed the ministers of Justice, Health, and Education to alert her “to any legislative or regulatory changes that may be necessary to reaffirm or clarify our government’s full authority with respect to this and other health and education matters.” (They could read the Dunlop decision for a start. It’s all there).
Bottom line: despite all the verbiage, unless the Dunlop decision is overturned or new statutes/regulations are passed, the only person who can impose or rescind a masking mandate is the yet-to-be-hired CMOH or their authorized delegate (not Smith or her Cabinet).
And all of Smith’s tough talk won’t change that.
Why this matters
The public is understandably focused on Smith’s rejection of scientific evidence and its repercussions on public health, however we can’t lose sight of the bigger picture: last spring Alberta’s premier and a bunch of UCP cabinet ministers claimed authority they did not have.
We live in a constitutional democracy.
This was inexcusable.
*PICC has been disbanded. At the time its members appeared to be Jason Kenney, Jason Nixon (government house leader), Travis Toews, (Finance) Sonya Savage (Energy), Rebecca Schultz (Children’s Services) Ric McIver (Municipal Affairs, Kaycee Madu (Justice), Doug Schweitzer (Jobs, Economy), Jason Copping (Health).