A decision posted by Justice B.E. Romaine on July 31 found that Alberta cabinet and government committees making final decisions about orders during the COVID-19 pandemic, instead of the Chief Medical Officer of Health (CMOH) Dr. Deena Hinshaw herself, violated the Public Health Act.
“The Public Health Act requires that decisions with respect to public health orders must be made by the CMOH, or her statutorily authorized delegate,” the decision reads.
“The final decisions implemented by the impugned orders in this case were made by the cabinet of the government of Alberta or by committees of cabinet. While the CMOH made recommendations and implemented the decisions of the cabinet and committees through the impugned orders, she deferred the final decision making to cabinet.
“Although, Dr. Hinshaw was maligned during the pandemic and afterwards as the symbol of the restrictions, she was not in fact the final decision-maker,” Romaine wrote.
“The delegation of her final decision-making authority to cabinet is not permitted by Section 29 of the Public Health Act.”
However, the judge determined that if those pandemic-related orders were “validly enacted by the CMOH,” they would not have been unconstitutional.
Several plaintiffs claimed their Charter rights were infringed upon by the public health orders during the pandemic, including the restrictions on indoor gatherings, quarantine requirements, business closures and mask requirements. They began court action in 2020.
“While they may have infringed certain of the applicants’ rights under the Canadian Charter of Rights and Freedoms, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 and the Alberta Bill of Rights, RSA 2000, c A-14, these limitations were amply and demonstrably justified as reasonable limits in a free and democratic society pursuant to Section 1 of the Charter and that they were enacted pursuant to a valid legislative purpose,” the judge found.
In Romaine’s conclusion, she determined that: “at all times when the impugned orders were in force, there existed a pressing and substantial legislative objective. If, as Grasser J suggests, the rights are subject to the same balancing act that would be conducted pursuant to the Oakes test, the restrictions would be found to be justifiable.”
In her decision, the judge pointed out that the Public Health Act definition of a public health emergency includes “an epidemic or pandemic disease … that poses a significant risk to the public health.”
A public health emergency gives the CMOH powers to “do any or all of the following: (i) take whatever steps the medical officer of health considers necessary (A) to suppress the disease in those who may already have been infected with it, (B) to protect those who have not already been exposed to the disease, (C) to break the chain of transmission and prevent spread of the disease, and (D) to remove the source of infection; (ii) where the medical officer of health determines that a person or class of persons engaging in the following activities could transmit an infectious agent, prohibit the person or class of persons from engaging in the activity by order, for any period and subject to any conditions that the medical officer of health considers appropriate: (A) attending a school; (B) engaging in the occupation of the person or the class of persons, subject to subsection (2.01); (C) having contact with any persons or any class of persons.”
In one part, the judge’s 90-page decision found that removing the mask mandate in Alberta schools was a decision of politicians rather than the CMOH.
“While involvement of elected officials in these important decisions may be desirable and even necessary, this involvement should have been structured in such a way as to mitigate the risk of political priorities interfering with the informed and well-qualified judgment of the CMOH, as provided in the Public Health Act, without ignoring the underlying public interest,” Romaine wrote in her conclusion.
“In conclusion, I declare that the impugned orders were ultra vires of the Public Health Act because they were based on an interpretation of the Public Health Act that gave final decision-making authority over public health orders to elected officials.”
Ultra vires is a Latin term that means “beyond the powers” or “exceed the scope.”
Lorian Hardcastle, an associate professor in the faculty of law and Cumming School of Medicine at the University of Calgary, said the decision, on both points, was expected.
“First, we knew from previous decisions that there was an incongruence between how decisions were being made by cabinet and the fact that the Public Health Act made clear that Dr. Hinshaw was actually the decision maker,” she said.
“There was this disconnect between the fact that the legislation had Dr. Hinshaw as the decision maker yet they were making decisions. And, repeatedly, the government was told if they wanted that to be the case, then they needed to change the legislation so that the law matched reality.
“On the Charter front, I think this decision was largely expected. It’s in line with the body of case law we’ve seen from across the country in which individuals challenged COVID public health restrictions.
“And that body of case law almost universally finds that while public health restrictions did limit individual rights — like freedom of assembly, freedom of religion, mobility rights — it finds that those limits on individual rights were justified given that government was responding to a pressing public health crisis.”
Hardcastle said this decision should prompt governments to look at their health legislation, the roles of both cabinet and the chief medical officer of health, and ensure legislation matches how they intend to make decisions — or rather, who.
She said some provinces have the CMOH as the legal decision maker, while others have cabinet in that role.
“Both models have their merits,” Hardcastle explained.
“Some would argue that decisions on public health restrictions should come from government, given that they’re elected and given that they’re in a better position to balance medical concerns with social, political, economic factors.
“On the other hand, you have people who will argue we don’t want decisions in a pandemic to be made by politicians who are concerned with political matters. Instead, you want public health decisions to be made by an impartial scientist who has expertise in public health, expertise in medicine, and whose future doesn’t’ depend on a re-election.”
Hardcastle said she wouldn’t be surprised if the current Alberta government revisited the Public Health Act and shifted some powers from the CMOH to cabinet.
“The premier has expressed her concerns in the past about having a chief medical officer of health make decisions rather than having the government be the decision maker.
“I think what they may do — and you can find support for this model in other jurisdictions — is to leave the power to make day-to-day kinds of public health orders with the chief medical officer of health — to order a particular apartment to disinfect or to make an order shutting down a single restaurant for health code issues — but to shift the all-of-society, ‘we’re shutting down all businesses, requiring all people to wear masks,’ to have those broad societal orders be in the hands of cabinet.”