Calgary lawyer Scott Nicol told The Epoch Times the ruling in the case of Ingram v. Alberta signals a need for further legislative reform to provide more “checks and balances” during any future public health emergencies.
“There is definitely concern about too much decision-making power saddled in one person’s hands,” said Mr. Nicol. “We all know from COVID that the decisions that were made became highly politicized events.”
He adds that the exercise of power in each province by the chief medical officer of health (CMOH) to unilaterally affect society broadly may have been reasonable in a “temporary health crisis,” but COVID “went on for several years.”
Constitutional lawyer James Kitchen told The Epoch Times that if a pandemic happened again, he fears the loss of freedoms “would be even worse than this time around, which is saying something.”
Court Ruling
Under Alberta’s Public Health Act (PHA), decisions that impacted all aspects of society during the COVID-19 pandemic were largely left to one public health bureaucrat—a power that experts say was never intended to be conferred to a sole individual. From closing schools, to mandating masks and social distancing, to shuttering businesses, one individual, by law, mandated orders affecting people’s lives in each province for almost three years.
That person was typically the province’s CMOH.
Court of King’s Bench of Alberta Justice Barbara Romaine ruled on July 31 that Alberta’s CMOH at the time, Dr. Deena Hinshaw, should have had the final say in the issuing of public health orders—which was legally required by the PHA as it was used to invoke the orders.
However, Dr. Hinshaw deferred that power to elected government officials, so Justice Romaine invalidated all of the doctor’s public health orders issued between March 2020 and September 2021.
That’s the time frame noted in the Ingram v. Alberta legal challenge to pandemic public health orders filed by two churches and a business owner in December 2020. The case alleged that CMOH orders were unlawful and unconstitutional and enacted outside the powers of the PHA.
In a 90-page court decision, Justice Romaine agreed the orders were issued by cabinet rather than the top doctor, and subsequently ruled they were unlawful and void.
Legislative Reform
Mr. Nicol said the ruling makes it clear that without legislative reform, a future emergency could see the government giving “greater deference to the CMOH so the orders are properly issued, which would result in less control/oversight/intervention by the elected officials.”He suggests governments could change the legislation to “give less power to the CMOH, or have the power exercised in consultation with other bodies,” which would create “checks and balances” and reduce “misuses of power.”
“We are only now settling some questions like, ‘Were these rules something you actually needed to follow?’”
He said reviewing these issues after the fact will be “scant justice and justification to the average law-abiding citizen who would like to exercise their rights” without waiting three or more years to retrieve their lost rights as cases move slowly through the courts.
Ontario Lawyer Hatim Kheir said that while Justice Romaine “applied the law as it is written,” it will seem “counterintuitive to people because it’s saying that elected officials shouldn’t be involved.”
He told The Epoch Times that locking down society should have entailed “a much broader debate that weighs immeasurable values like religion and the right to protest.”
He said these kinds of decisions “go beyond any one domain of expertise” and involve balancing rights and economic harms, which “should be done after public deliberation by elected officials.”
The court ruling makes it clear that future decisions either have to be made by the CMOH or have to comply with the Public Health Act, says lawyer Rob Kittredge.
Mr. Kittredge told The Epoch Times that “the law could be rewritten to allow delegation to cabinet,” or the orders in the future could be enacted as they were in Ontario, where he lives.
He said the Ford government in Ontario created “provincial regulations rather than orders of the CMOH” to direct people’s behaviour during the pandemic. He said because they were separate regulations outside of any PHA, they did not have the issue of delegation of authority.
Calgary lawyer Chad Williamson says legislative reform is necessary so that the right checks and balances are in place to hold decision-makers accountable, “especially if those decisions have the effect of infringing on the protected and critical rights conferred upon Albertans by the constitution.”
“It should always be a concern when unelected, unaccountable government bureaucrats are granted sweeping authority to restrict freedoms,” Mr. Williamson told The Epoch Times.
‘Bureaucratic Authority’
Earlier this year, retired Canadian Armed Forces Lt. Col. David Redman, former head of the Alberta Emergency Management Agency, testified at the National Citizen’s Inquiry in COVID-19 that Canada “failed” in how it was supposed to respond to a pandemic.He said Alberta in particular had a pre-written pandemic plan that involved four processes in an emergency. They are reducing illness and death from the disease through “appropriate” prevention, care, and treatment; mitigating societal disruption through the “continuity of government services”; minimizing adverse economic impact; and using resources efficiently and effectively during response and recovery.
“We failed at four out of four,” he testified.
Lt. Col. Redman told The Epoch Times on Sept. 12 that the Alberta PHA’s Section 29, which was used by the CMOH to make public health orders in the province, was a “pure piece of bureaucratic authority, with no accountability to elected officials.”
“[It] has no place in a democracy for a pandemic,“ he said, adding that PHAs should only ever be used for ”very localized events,” such as one or two municipalities.
‘Immense Harm’
Constitutional lawyer Michael Alexander says there is a lesson to be learned from the ruling, which is that “decisions concerning public health must be made by elected officials acting on the advice of bureaucrats, not vice versa.”He said it was bureaucrats who ultimately declared a pandemic, mandated vaccines, and imposed lockdowns “that caused immense harm on all levels.”
“All of this planning around the pandemic was done by public health officials, intelligence agencies, and law enforcement,” Mr. Alexander said.
“It should have included economists, mental health professionals, a few lawyers to remind government of their obligations under constitutional law. A wide range of experts plus elected officials, and not just health bureaucrats, should have been making decisions before locking down all of society for almost three years.”
As for Alberta, however, he said he has “zero concerns about CMOH being given such authority again.”
“The reality is that it was always impossible for a medical bureaucrat to run the province. It was a lie from the very beginning,” Mr. Grey told The Epoch Times.
Mr. Grey predicts that the new government of Premier Danielle Smith will consider abolishing the role of the CMOH and decentralizing the PHA’s power to regional health authorities in dealing with emergencies.
“I think we are going to see the dismantling of Alberta Health Services, which is sort of the weaponized bureaucratic Gestapo of the county government,” he said.
The spokesperson said the Alberta government will be releasing a detailed plan for handling future possible pandemics based on recommendations in the report.
