A Legal Reminder of the Kenney Government’s Awfulness

A Court of King’s Bench judge ruled Thursday that the Alberta government’s decision to dump the requirement for kids to wear masks in school during the pandemic last February was politically driven in contravention of the Public Health Act.

Justice Grant Dunlop’s declaration that the United Conservative Party government’s order lifting the masking requirement was “based on an unreasonable interpretation of the Public Health Act” is a useful reminder of the sins of now-demoted premier Jason Kenney.

Many Albertans have been so appalled by the unbearable weirdness of being governed by an anti-vaccine dark-web conspiracy theorist like Danielle Smith that it’s already easy to forget just how bad a premier Kenney was.

It’s not as if we didn’t all know that the man who brought us the “Best Summer Ever ™” put politics ahead of public health, or that the ridiculous policy of letting schoolchildren go maskless while a tidal wave of COVID-19 infections battered the health-care system was driven by the contra-experts in the Kenney cabinet and their desire to make COVID go away by pretending it already had.

Still, it’s comforting to have the imprimatur of a superior court judge on this reality, as obvious as it is.

Justice Dunlop mostly agreed with the families of five immunocompromised children who sought the judicial review of the Feb. 8 order to lift the mask mandate and issued a declaration “for the benefit of the chief medical officer of health and other medical officers of health in considering future public health orders.”

The applicants, who also included the Alberta Federation of Labour, argued Chief Medical Officer of Health Deena Hinshaw abdicated her authority to the cabinet and thus failed in her obligation to protect vulnerable students.

Now, of course, we are governed by an unelected premier appointed by the UCP party base, well represented by many of the same MLAs in the United Conservative Party caucus and cabinet who led the charge to replace Kenney with Smith.

This is not so comforting. Indeed, it’s downright disturbing.

But like an airplane pilot of my acquaintance who as a passenger always stared avidly out the window of a plane so he’d be the first to know if anything went terribly wrong, at least we’ll have the satisfaction of understanding what the problem was before we go splat!

Dunlop also agreed with the families and the AFL that Education Minister Adriana LaGrange’s prohibition of school boards imposing their own mask mandates was not a legal order.

“While Minister LaGrange’s statement on its face appears to prohibit school boards from imposing mask mandates, it does not do so, because the minister can only do that through a regulation, and the statement was not a regulation.”

While Dunlop didn’t go this far in his declaration, it’s hard for many of us to believe that LaGrange didn’t know this perfectly well when she issued her “order.”

Dunlop did not rule that the children’s charter rights were violated, however.

Whether or not that was the case, the judge’s declaration is useful because it puts the Smith government on notice that the rule of law is still sort of a thing in Alberta, and its ministers really ought to consider its niceties when they do outrageous stuff in the weeks and months ahead.

So we should all be grateful to the parents of the five children for making it possible for these matters to be clarified.

One hopes it will have a positive effect on the conduct of Smith and her enormous cabinet, although I’m sure readers will forgive me if I reserve judgment on how this is likely to play out.