Kenney Government Broke the Law in Pandemic Response

You can blame Jason Kenney, principal author of the United Conservative Government’s clown-show response to COVID-19, if Alberta’s many pandemic scofflaws manage to wiggle off the hook for their violations of public health restrictions.

Alberta Court of King’s Bench Justice Barbara Romaine ruled this week in Calgary, almost as an aside since it didn’t go to the main point of her decision, that Kenney and his cabinet were breaching the Public Health Act themselves through the pandemic by making all the final decisions about how to respond to COVID-19.

Dealing with the defence by two individuals and one church that their Charter rights had been violated when they ignored public health measures imposed to mitigate the spread of COVID, Romaine’s written judgment disposed of that argument.

She ruled that any infringements of fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms were “amply and demonstrably justified” by the public health emergency.

But then she got to the matter of the ridiculous way Kenney’s COVID cabinet imposed its will on the chief medical officer of heath, Dr. Deena Hinshaw, and declared that it was illegal. “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,” the judge wrote in her decision.

Now this doesn’t exactly come as a shocker, or even news beyond the fact that the obvious has been confirmed in writing by a judge. It was no secret Kenney’s cabinet was giving the orders and Hinshaw was just walking them down the hall and trying to get that element of the public determined to defy them to pay attention.

The Public Health Act at the time was all but non-functional thanks to the machinations of Kenney and his cabinet. It should have been called the Public Politics Act, or maybe the Health Politics Act, as we swung wildly from restrictions to premature openings and back again.

All Hinshaw did, the judge found, was make recommendations. Kenney and his cabinet were the deciders. And whether or not the decisions they made were defensible — and if we cast our minds back to the chaotic, frightening days of the pandemic, it’s clear many of them were not — that was illegal.

Hinshaw was eventually fired for what she did manage to do by Premier Danielle Smith — a COVID conspiracy nut, quack cure enthusiast and opportunistic vaccine opponent (who nevertheless got vaccinated herself).

But during the Kenney government, Romaine found, Hinshaw was qualified to do the job she was required by law to do.

Should Hinshaw have resigned in protest? Well, that seems obvious from this perspective. But one supposes in such circumstances it’s easy to talk yourself into the idea that things would be even worse without you, and during the pandemic it’s possible that might have been true.

The fact that Hinshaw wasn’t allowed to call the shots may well result in COVID scofflaws getting off the hook without Smith having to make a single phone call to her latest justice minister. (Poor old Pastor Artur Pawlowski, on whose behalf the premier did improperly intervene, should never have given that speech at Coutts, getting himself in hot water under a whole different piece of legislation, the federal Criminal Code.)

One likes to think, though, that a chief medical officer of health who was “informed and well-qualified” (in Romaine’s words) wouldn’t have promised in June 2021 that the upcoming summer was going to be the Best Summer Ever! (Readers will recall how it failed to live up to that promise.)

The CBC reported Tuesday that the Alberta Crown Prosecution Service says it’s “reviewing the decision and assessing its potential implications.” That could include withdrawing the charges since the government acted illegally. (One imagines that they’ll also be pretty busy reviewing Smith’s mandate letter and trying to figure out what the heck is with that “specialized prosecution unit to address deteriorating safety in Alberta’s major urban centres” he’s been instructed to come up with.

It’s hard to know, but from the point of view of promoting peace, good government and a modicum of social order, Romaine’s ruling may be for the best.

The Q-adjacent base of the UCP can declare a victory without really having one, so we might get through 2023 without having to experience another trucker blockade or a dangerous rewrite of the Public Health Act.

As for requiring some action by the courts to ensure public health measures can be enforced in the future, that assumes that we’ll even have public health laws in this place when the Smith government gets done reimagining a sovereign Alberta within a united Canada, as some wag in the legal drafting department put it not long ago.

History, though, needs to ensure Kenney wears this, and the Smith government too, for which he laid the foundation and to which his ineptitude opened the door.