Alberta’s Bill 10 wasn’t about the government’s power

Alberta’s Public Health Act contained “sweeping powers” prior to the UCP passing Bill 10, but Bill 10 is the backstop that ensures Alberta’s Chief Medical Officer of Health cannot act upon any of them.

According to the Canadian Civil Liberties Association, Bill 10 allowed the Minister of Health to retroactively validate any laws that had been put in place prior to Bill 10 passing on April 2. Some legislative liberties taken by the UCP prior to it being legal to do so likely also spurred the creation of such a powerful Bill.

“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,” reads a section of the complaint on the CCLA’s website.

“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.”

Few similar complaints were raised in Alberta.

Perhaps the most surprising complaint came from John Carpay, president of the Justice Centre for Constitutional Freedoms. For those who keep track, Mr. Carpay assisted Jason Kenney’s bid for election as the leader of the Progressive Conservative Association of Alberta in 2016, offering the member of parliament from Calgary-Midnapore a speaking engagement to Mr. Carpay’s captive audience of home schoolers that same year.

Mr. Carpay was also involved in the notably sketchy stalling of policy voting at the United Conservative Party’s inaugural convention in 2018. He and fellow lawyer Len Thom effectively stopped voting by calling the question during debate and forcing votes on everything but the actual policy at hand until the clock ran out. Sometimes, friends like these are exactly what you need.

When the first vocal complaint about the UCP’s Bill 10 was launched from someone perceived to be a friend of the government, and especially of the Premier, the initial response from UCP detractors was that it demonstrated how improper the legislation was.

“Before Bill 10 became law on April 2, Alberta’s Public Health Act already empowered politicians and bureaucrats to take property away from citizens and organizations, to force citizens to render aid, to conscript people to help deal with an emergency and to enter into any building or property without a warrant,” reads a statement on the Justice Centre for Constitutional Freedoms website.

“The Chief Medical Officer of Health was already empowered to forcibly quarantine any ill person, or any person caring for a sick family member. The Public Health Act also gives politicians (emphasis added) the power to order mass disease testing and mass vaccination. If these existing powers were inadequate to deal with a public health emergency or pandemic, the Alberta government has yet to explain why or how.”

“Before Bill 10, cabinet ministers were already able to suspend the operation of provincial laws, in whole or in part, once cabinet declared a public health emergency. The Public Health Act’s existing sweeping and extraordinary powers have never been constitutionally challenged.”

The writing was on the wall – Bill 10 was not the target – Alberta’s Public Health Act was.

“There are people who believe that Bill 10, for example, imposed a power to require people to be vaccinated or immunized when, in fact, that power has existed  since 1910,” Premier Kenney said in the Legislature on May 8.

“I believe that there are absolutely legitimate concerns and questions about the entire Public Health Act, to which Bill 10 made minor technical amendments. We will invite a standing committee of the Legislature to invite witnesses to do a deep dive into the entire statute to provide the Legislature with amendments to the bill and the act.”

If one recalls the push back the Alberta Party saw in 2019, it was to one policy in their entire platform – to make vaccinations mandatory for all students (whose medical history did not exclude them) who attend public schools.

The JCCF insists mandatory vaccinations and denying benefits, such as free public education, for those who refuse to comply is a violation of the Charter rights granted to Canadians.

As the well-known interpretation of Jesus goes: “screw everyone else, this is about me.”

Dr. Deena Hinshaw was appointed Chief Medical Officer of Health by the NDP in February of 2019. A source who was aware of the nature of the appointment explained that the Chief Medical Officer of Health is not easily a political appointment due the nature of the role and the requirements one must have to rise to such a position of responsibility.

The source was granted anonymity to provide background to Political RnD.

Noting that the pool of qualified candidates is very small, as well as the immense responsibility placed on the successful candidate who, in Alberta, would be required to deal with a multitude of public health issues from environmental crises such as floods and wildfires each year, they felt a political appointment would be much too risky for any government. And that rings true.

If you can’t rig the process, alleviate the risk for those who don’t want to be responsible – Jesus probably also said.

Bill 10 ensured the Chief Medical Officer of Health could not use the powers granted under a public health emergency unless the government agreed with their decision.

Bill 10 encouraged a public outcry against unilateral decision-making – easily against a government but also, logically, against an “unelected” (though arguably highly qualified individual who may make decisions based upon the safety of the whole rather than entertain individual tinfoil hat arguments) official.

Bill 10 protected a few from being inconvenienced by the safety of the whole.

Bill 10 was never about a power grab – it was about taking power away.

This post contains opinion.

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Deirdre is a freelance writer physically distancing in southern Alberta.
Connect: @Mitchell_AB, [email protected]

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