COVID-19 – Perspective of Active Duty Peace Officers in Alberta
COVID-19 has hit our world in a way that the North American Law Enforcement Community would have never expected. COVID-19 has placed Law Enforcement into gut-wrenching situations such as being asked to surveil toboggan hills, break up outdoor hockey games, responding to calls to disperse family Sunday dinners, monitoring for people standing too close together, and observing for face-covering compliance. Can any serving Law Enforcement Officer honestly say that they signed up for this? Perhaps a better question is “is any of this actually legal?”. Let’s explore this question a little further through an Alberta lens.
Many in the Alberta Law Enforcement community have just had the “Coles Notes” version of the Alberta Public Health Act, with a heavy emphasis on the Public Health Orders associated with the State of Public Health Emergency. After the many questions raised during the initial lockdowns, in July of 2020, the author read the entire Public Health Act. Buried in that 80-page statute is some truly frightening authority that the Government of Alberta, at one time or another, bestowed upon itself.
These authorities range from the unilateral and extrajudicial seizure of property required to respond to a public health emergency, the conscription of people, warrantless entry to any building or onto any land by any person, and the authority of a Medical Officer of Health to extrajudicially issue a “certificate” for the detention someone for they deem to be a recalcitrant patient for up to 7 days. It also includes provisions allowing the Lieutenant Governor in Council to “… order the immunization” of anyone who is not immunized or otherwise immune to the disease. I will note that, to the best of the author’s knowledge, the Government of Alberta has not used these authorities and has committed to the removal of the reference to mandatory immunization. With that said, as of the writing of this piece, all of these authorities remain law.
Continuing on with the dull, yet eye-opening, read of the Public Health Act, the author eventually found section 75, entitled “Paramountcy”, near the end of the Act. The following is the direct quote of section 75:
“75 Except for the Alberta Bill of Rights, this Act prevails over any enactment that it conflicts or is inconsistent with, including the Health Information Act, and a regulation under this Act prevails over any other bylaw, rule, order or regulation with which it conflicts”
“Except for the Alberta Bill of Rights…”, eh?. Let’s go to the Alberta Bill of Rights and have a look at the only law in Alberta that would seem to supersede the Public Health Act:
“1 It is hereby recognized and declared there exist without discrimination… …the following human rights and fundamental freedoms, namely
(a) the right of the individual to liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law
(b) the right of the individual to equality before the law and the protection of law.
(c) freedom of religion
(d) freedom of speech
(e) freedom of assembly and association
(f) freedom of the press
(g) the right of parents to make an informed decision respecting the education of their children
2 Every law of Alberta shall unless it is expressly declared by an act of the Legislature that operates notwithstanding the Alberta Bill of Rights, be so construed and applied as to not abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any rights are freedoms herein recognized and declared”
That’s a lot of law for most to take in, but it’s fairly important reading.
The two listed sections of the Alberta Bill of Rights outline that Albertans have rights and freedoms and that no law of Alberta can remove or infringe upon those rights and freedoms, unless that law is expressly permitted to do so by an act of the legislature. The Public Health Act expressly states that the only Law in Alberta that is its superior is the Alberta Bill of Rights. To date, there has been no amendment to the Public Health Act declaring that it operates “notwithstanding”- interpreted as in spite of- The Alberta Bill of Rights that the author has been able to locate. It can, therefore, be assumed that the Alberta Bill of Rights remains the highest law of the land in Alberta; as should be the case.
Also absent in the Public Health Act is the legal authority to operate “notwithstanding”- again, in spite of- the fundamental rights and freedoms contained within the Canadian Charter of Rights and Freedoms; part of the supreme law of Canada, the Constitution Act, to which all other laws are beholden.
Let’s be clear, the Government of Alberta can legally violate the rights and freedoms of Albertans using a “notwithstanding” declaration. For those who may be unaware, and I expect the majority are, a “notwithstanding” declaration is a legal mechanism given to the Federal Government and their Provincial counterparts by section 33 of the Charter of Rights and Freedoms. If invoked, section 33 relieves a parliament or legislature from respecting all, or any parts, of section 2 and sections 7 through 15 of the Charter of Rights and Freedoms, with some additional stipulations
and requirements on use. In effect, section 33 of the Charter of Rights and Freedoms allows for the removal of some of those rights and freedoms; arguably, some of the most important ones.
For some reason, most likely related to political optics, the Government of Alberta has chosen not to use this legal mechanism to make its response to COVID-19 irrefutably legal. Instead, the Government of Alberta has hedged its bets that all of the measures that they have taken are “reasonable”; a requirement of the limitation clause set out in section 1 of the Charter of Rights and Freedoms. The Government of Alberta is also assuming that their measures will ultimately pass the requisite “Oakes Test” (R. v. Oakes,  1 S.C.R. 103) that will undoubtedly follow.
At the end of the day, all of this means that the Government of Alberta is, at face value, violating its own internal laws (the paramountcy of the Alberta Bill of Rights) and is, perhaps, unlawfully infringing on the fundamental rights and freedoms of its citizens, as guaranteed by the Charter of Rights and Freedoms. At present no judicial decision has been rendered.
Interestingly enough, in an injunction hearing against the Public Health Orders brought by the Justice Centre for Constitutional Freedoms on Dec 21st, 2020, it was acknowledged by The Honorable Justice Anne Kirker, of the Alberta Court of Queen’s Bench, that Albertans are suffering irreparable harm as a result of the infringement caused by the Public Health Orders. In spite of this, the honorable court chose not to grant the injunction, although the main hearing will proceed later in 2021, while we wait with bated breath.
So, where does this leave Alberta’s Law Enforcement Officers? It’s a tough position for sure. Do they obey the instructions of their superiors to enforce the restrictions? In obeying what are likely to be unlawful orders, do they understand that they may, ultimately, be committing an offense under section 423 of the Criminal Code, and potentially others as well? Do they understand that the excuse “I was just following orders” may not end up being an excuse that a court, be it a court of law or a court of “public opinion”, will accept as justification for an Officers actions? Do they go to their respective associations and stand against their superiors, potentially risking their livelihood in the process? We won’t offer any answers here, as it falls to each individual Law Enforcement Officer to grapple with their own conscience and make their own decisions. We will leave all of Alberta’s Law Enforcement Officers, be they a Police Constable, an Alberta Sheriff, a Conservation Officer, a Community Peace Officer or a Bylaw Enforcement Officer, with a thought and a few questions:
The fundamental rights and freedoms that you aid in suppressing and stripping from Canadian citizens today are the same fundamental rights and freedoms you, and your family, will be without when your service is complete. Are you prepared to accept that outcome? Are you prepared to impose that future on your children?
In defense of our rights and freedoms.
– Concerned Law Enforcement Officers of Alberta