Alberta's Minister of Justice Mickey Amery is sworn into cabinet on June 9. Mr. Amery introduced legislation that would remove the authority of the province’s chief medical officer of health to issue emergency orders.JASON FRANSON/The Canadian Press
The Alberta government has proposed revoking the authority of the province’s chief medical officer of health to issue emergency orders, such as those that limited freedoms in order to stem the spread of the coronavirus, and to instead entrust cabinet with those powers.
Mickey Amery, Alberta’s Justice Minister, on Thursday introduced a bill amending the Public Health Act (PHA) to enshrine the decision-making practice the province followed during COVID-19. The government said it proposed the changes in response to a court case that ruled Alberta’s public health orders during COVID-19 were invalid because cabinet, rather than the chief medical officer of health, made the final decisions regarding restrictions. The judge deemed this inappropriate because the act, as it stands now, gives that power to the CMOH.
The bill also proposed what government called a “paramountcy clause,” giving cabinet the authority to reverse or vary any decisions made under the PHA outside a declared state of public health emergency. Cabinet, under the proposed changes, will also be able to exempt a person or class of people from its orders.
Alberta Premier Danielle Smith won control of the United Conservative Party in part because she was an outspoken critic of health officials and scientific experts during the COVID-19 pandemic. She railed against the the vast power bestowed upon unelected bureaucrats and campaigned on a promise to never impose restrictions, including limits on gatherings and vaccine mandates. Her predecessor, Jason Kenney, and his cabinet authorized those restrictions on the advice of Deena Hinshaw, Alberta’s CMOH during the pandemic. Ms. Smith also promised to oust Ms. Hinshaw, which she did.
Mr. Amery said that, under the proposed amendments, the CMOH would still provide advice to cabinet and its committees, but there would be no obligation to follow it.
“The lines of authority, responsibility and accountability must be clear,” he said during a press conference. “It’s important that Albertans know that the people that they elected into this government have a pivotal role in making those decisions on their behalf.”
Cabinet, Mr. Amery said, has a responsibility to consider a variety of factors “beyond the actual public health matter that they are contemplating” when formulating decisions tied to public health orders.
“Things like the well-being of Albertans, things like the economic well-being, mental health well-being, social well-being of individuals.”
Ms. Smith and many in her caucus criticized Alberta’s COVID restrictions on the grounds that they caused sweeping social and economic harm. The Premier has has promised to reform Alberta Health Services and favours regional decision-making over the province’s centralized board. Ms. Smith, after assuming power, axed the AHS board and installed John Cowell as its administrator.
She also asked Preston Manning, the conservative stalwart who was skeptical of scientific expertise during COVID, to chair a panel reviewing the legislation that guided Alberta’s response through the pandemic. His final report, including recommendations, is due Nov. 15. Mr. Amery said he spoke with Mr. Manning before authoring his bill.
Amendments to the existing PHA would preserve final decision-making authority to medical officers of health, including the CMOH, for orders affecting a specific person or persons, or specific public place during a public health emergency, the province said.
The PHA details the powers of the CMOH, deputy CMOH, medical officers of health and public health inspectors. It also outlines how to respond to public health emergencies – such as the COVID-19 pandemic – environmental hazards and the spread of communicable diseases, through, for example, closure, work or boil water orders.
Under the existing legislation, the CMOH has the power to take whatever steps they deem necessary to lessen the impact of a public health emergency. This includes, but is not limited to, prohibiting in-person activities and mandated isolation.
Mr. Amery dismissed the idea that his bill would give cabinet unchecked powers: “This is in the scope and lens of the Public Health Act and nothing more,” he told media, adding it is difficult to speculate under what circumstance the clause would be enacted.
These changes, the province said, would bring legislation in line with the Ingram v. Alberta court decision. The case involved Calgary gym owner Rebecca Ingram and several others who challenged public-health orders during the COVID-19 pandemic on constitutional grounds. The plaintiff claimed the orders were beyond the authority of the province’s PHA.
The judge in the Ingram case concluded that the orders would have been constitutional had they been properly enacted by Ms. Hinshaw rather than through the provincial cabinet.