Alberta premier’s plan to forgive COVID fines has legal precedent, needs legislation: expert

Alberta Premier Danielle Smith speaks at the United Conservative Party AGM in Edmonton, Saturday, Oct. 22, 2022. Smith told reporters at the AGM that she is looking into legal advice on forgiving fines that were handed out to those who broke pandemic rules and restrictions. Amber Bracken, The Canadian Press

Premier Danielle Smith is looking into the legality of forgiving people who were fined for breaking COVID-19 public health orders in the early years of the pandemic.

“The things that come to top of mind for me are people who got arrested as pastors (and) people given fines for not wearing masks,” Smith told reporters Saturday at the United Conservative Party’s annual general meeting.

“These are not things that are normal to get fines and get prosecuted for. I’m going to look into the range of outstanding fines and get some legal advice on which ones we are able to cancel and provide amnesty for.”

Church in the Vine in Edmonton was handed an $80,000 fine in July 2022 for repeatedly obstructing a health inspector who was there to see if everyone was wearing masks and maintaining social distance from each other, as required by the pandemic Public Health Order at the time.

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GraceLife Church, west of Edmonton, ignored public health restrictions for months, and pastor James Coates was arrested in February 2021. He was freed without conditions after 35 days in custody.

According to a University of Calgary associate law professor, the process of the government forgiving fines is called remission and it has been done before by provincial and federal governments.

Click to play video: 'AHS board member resigns in protest of Danielle Smith’s comments'
AHS board member resigns in protest of Danielle Smith’s comments
“There used to be an act called the Fines and Penalties Act in Alberta that allowed the lieutenant governor and council to remit any [fine],” said Lisa Silver.

“That act, however, required that a detailed statement of all remissions be submitted to the Legislative Assembly within a certain number of days of when the Assembly started to sit.

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“It wasn’t like this just happened and then people walked away from it. There had to be some reporting on it.”

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Silver said the justice minister used to also be the province’s attorney general under a superseded act, giving them the power to give advice or consider applications for the remission of fines and penalties.

“So historically it’s been done, but it has to be done through statute.”

Federally, the governor general can exercise the royal prerogative of mercy in cases where there is “substantial injustice or undue hardship.” Because Canada has a record suspension process, the prerogative is rarely granted. From 2013 to 2018, it was only granted twice.

Though there is precedent in provincial law, Silver said those pieces of legislation don’t exist anymore and a new one would need to be crafted.

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“It’s in the Criminal Code — the ability to remit by governor and council — so it’s not something unheard of. But again, it’s usually a power that is in a piece of legislation and it’s a power that is not connected to to a specific kind of offense,” said Silver.

“It’s usually a power that’s there for extraordinary or exceptional circumstances.”

Silver said she doesn’t know how the remission process would end up working, should legislation be introduced.

“The question is, can you get it remitted or do you do you have to first use all your appeal rights before you can get a remission? That I don’t know,” said Silver.

Monday, Church in the Vine had their appeal dismissed by the Court of King’s Bench of Alberta.

“[Church in the Vine’s] appeal was dismissed by the King’s Bench, but they may still do an application to the Court of Appeal. Do they have to do that before they can make an application for remission? That I don’t know.”
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Irfan Sabir is the NDP justice critic. He said Smith’s comments encourage the breaking of laws.

“Threatening political interference in the administration of justice is not okay,” said Sabir in a statement Monday.

“No one in the Premier’s Office should be suggesting they have powers that surpass the courts.”

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