Juno News - Alberta Covid emergency inquiry recommends greater protection of civil liberties

00:00:00.960 Welcome to Canada's Most Irreverent Talk Show. This is the Andrew Lawton Show, brought to you by True North.

00:00:11.040 Hello and welcome to you all. This is the Andrew Lawton Show, Canada's Most Irreverent Talk Show here on True North.

00:00:19.200 A bit of a special edition of the program. I have been roused from my vacation.

00:00:23.680 Now, I'm not actually on vacation. I took a week off because I'm working on a book, but I didn't want to pass up the opportunity to talk to Preston Manning,

00:00:33.120 who was tapped by the government of Alberta under Danielle Smith to be the chair of the Public Health Emergencies Governance Review Panel.

00:00:41.180 Now, this was a process that looked at Alberta's declaration of a provincial emergency for the COVID era

00:00:47.680 and some of the policies and interventions and mechanisms that came about under the auspices of that emergency.

00:00:54.260 Now, we know what those are. Shutdowns of schools, of the economy, implementation of vaccine passports, 1.00

00:01:00.660 very contentious policies that in large part led to, I think, the ousting of Jason Kenney as the UCP leader

00:01:07.560 and then the introduction of a leadership race that elected Danielle Smith. 0.98

00:01:11.700 But the Alberta government tapped Preston Manning to chair a panel to look into this chapter in the province's history.

00:01:18.980 Now, the report just came out moments ago, and in it, there are a number of recommendations that go to the definition of emergency,

00:01:26.660 that go to strengthening Alberta's support for civil liberties of rights and freedoms,

00:01:32.200 that go to limiting and almost eliminating, not quite, school closures.

00:01:36.620 We'll talk about that in a little bit of time.

00:01:38.900 So, I've had the opportunity to go through an embargoed copy of the report,

00:01:43.620 and I wanted to talk about its recommendations and the broader landscape of Alberta's emergency management

00:01:48.960 in this special edition of the program.

00:01:51.020 And we go to this discussion to Preston Manning,

00:01:54.900 who is the chair of the Public Health Emergencies Governance Review Panel and the author of this report,

00:02:00.840 also a legend and institution in Canadian politics and Alberta politics.

00:02:05.480 It's always good to talk to him.

00:02:06.980 Preston, good to talk to you.

00:02:08.000 Thanks for coming on today.

00:02:09.440 Oh, thanks for having me, Andrew.

00:02:11.840 So, let's start off, firstly, with your role here.

00:02:15.500 I know you were originally chairing the Citizen-Led Inquiry,

00:02:19.160 and then Premier Danielle Smith had tapped you to lead this panel. 0.56

00:02:23.040 What was your mandate coming into this process?

00:02:25.840 The main purpose, Andrew, and it's good for people to understand this,

00:02:29.640 this was not a panel to look into everything that the government did with respect to COVID.

00:02:34.160 It had a legislative focus.

00:02:36.760 And to put it in a big, long sentence,

00:02:39.340 our mandate was to investigate the legislation that authorized the orders and regulations whereby the government responded to COVID

00:02:47.320 and to suggest amendments to that legislation or additional legislation which would better prepare the province for the next emergency.

00:02:54.400 So, in one long sentence, that's what our job was.

00:02:57.140 It was basically a legislative one.

00:02:58.900 And I think the reason the Premier asked me to do it, our families had 55 years' experience with legislation,

00:03:09.820 Alberta's particularly, but also in the federal parliament.

00:03:12.680 And this was a legislative panel.

00:03:14.600 So, I was asked to chair it and was more than willing to do that.

00:03:19.300 Obviously, the, and the report makes no bones about this,

00:03:23.080 the emergency declaration, the emergency orders in Alberta did infringe on civil liberties.

00:03:29.460 They did infringe on people's mobility rights, their autonomy rights.

00:03:33.720 And the report makes clear that there wasn't really much judicial recourse available to people

00:03:39.660 because the courts were very deferential whenever these challenges could be heard.

00:03:44.600 Do you make a finding that these suspensions of civil liberties were justified or not?

00:03:51.480 Well, the way we come at it is that there has to be a balance between the protection of the citizen from the harm of the emergency,

00:03:59.620 but also the protection of their rights and freedoms under emergency conditions.

00:04:04.500 Because, as you say, they are strained by the response orders.

00:04:08.940 So, what we can't deal with the, I mean, I have ideas on how you would change the federal charter,

00:04:14.960 but that is not an easy process.

00:04:17.680 But what Alberta can do is amend the Alberta Bill of Rights to strengthen the protection of rights and freedoms

00:04:24.660 to which that legislation applies.

00:04:27.260 And we have about 20 proposed amendments to the Alberta Bill of Rights to specifically strengthen that.

00:04:35.640 And, of course, that statute gives direction to the courts.

00:04:39.500 You know, if you're a lawyer and you're just bringing the case before the court,

00:04:42.520 all you can do is argue within the law as it is now.

00:04:45.600 But legislators can give direction to the courts.

00:04:48.220 And this gives direction that we've got to get a better balance between protecting from harm and protecting rights and freedoms.

00:04:55.120 The panel has also recommended an amendment to the definition of emergency.

00:05:00.860 And I was wondering if you could speak to why you felt the current definition didn't quite serve Albertans in this context.

00:05:07.880 Well, I don't think nobody envisioned a province-wide emergency of this kind.

00:05:13.040 Our legislation doesn't envision it.

00:05:15.800 The section of the Public Health Act dealing with the powers of the Chief Medical Officer of Health

00:05:20.380 was basically focused on how to deal with local emergencies.

00:05:23.720 There's a disease outbreak in Smoky Lake or there's a problem at a hospital in Lethbridge or something like that.

00:05:31.560 So our legislation, nor does the Education Act.

00:05:34.500 The Education Act never envisioned the government having to think about shutting down the system.

00:05:39.880 In fact, the Education Act is all thrust the other way.

00:05:43.200 How do you keep schools open?

00:05:45.140 So one of our recommendations, and it's not just on public emergencies,

00:05:49.340 there's a number of these areas where we ought to clarify the definition.

00:05:53.280 What do we mean by a province-wide public emergency?

00:05:57.220 What do we mean by professional conduct or misconduct in an emergency?

00:06:01.720 A lot of these phrases have never been defined in terms of an emergency.

00:06:06.100 And we suggest that a lot of statutes have, you know, the first clause of them,

00:06:10.560 and the second clause is a definitional clause.

00:06:12.620 And so we say maybe we should sharpen up those definitions.

00:06:16.840 Do you feel that Alberta was too quick or too broad in declaring the emergency

00:06:21.460 or in classifying what COVID was as an emergency?

00:06:25.900 Well, it's, you know, it's hard to be judgmental after the fact.

00:06:30.420 A lot of these decisions were made with incomplete information.

00:06:33.460 They were made with an eye on what the federal government was doing and ordering

00:06:39.700 and what they might finance in terms of emergency measures.

00:06:43.480 So I wouldn't sort of pass judgment on that,

00:06:45.940 but just say that in the future we could be better prepared.

00:06:49.840 And one of the steps would be better prepared is a definition of what a public emergency is.

00:06:54.520 Well, on that note, I've heard, you know, certain criticisms such as, for example, from David Redmond,

00:07:01.120 that Alberta had an approach to emergency management that really wasn't followed.

00:07:05.940 And I was wondering if that was, in your view, an accurate assessment of the problem

00:07:09.820 or if really the issue was that the preparations really didn't serve the situation that Alberta found itself in

00:07:16.320 and Canada found itself in.

00:07:17.620 Well, think of what David is getting at now because he was the head of that agency a number of years ago.

00:07:23.340 And that agency back in his day was bigger than it is today.

00:07:28.420 And then during the Klein era, when Ralph was trying to reduce expenditures in that,

00:07:35.580 the emergency management agency was reduced in size and reduced in capability.

00:07:42.460 And so that's partly the rationale behind our recommendation.

00:07:45.960 A, that we think that's the agency that should have the overall coordinating responsibility.

00:07:51.040 But if you're going to say that, then you've got to give it the horsepower and the resources in order to do that.

00:07:56.600 And it doesn't quite have that now.

00:07:58.220 That would be something the government would have to decide to do.

00:08:00.620 And we put that in perspective, too, that we have an appendix on what were the consequences

00:08:08.260 of the economic lockdown measures and the social distancing measures.

00:08:12.780 On the economy, that produced an 8% contraction of a $300 billion GDP economy.

00:08:20.620 8% of $300 billion is $24 billion worth of debt.

00:08:25.260 So if you could prevent that or better manage the response to it by beefing up the emergency

00:08:32.820 management agency, you know, you could ask or they could ask, well, what's it worth to

00:08:37.280 you to try to prevent $24 billion worth of damage to your economy?

00:08:40.880 Maybe spending a little bit more on our agency would be the right direction to go.

00:08:45.020 Well, in one area where the panel's recommendations are clear, and I think the premier has also

00:08:49.160 spoken about this, is that the buck has to stop with the government.

00:08:53.160 And this was, I think, a huge breakdown.

00:08:55.740 We saw this complete abdication of decision-making authority to public health officials who have

00:09:01.760 a very narrow mandate and focus, and more importantly, were not elected to shepherd provinces through

00:09:07.700 any emergency situation.

00:09:09.620 Well, as the courts, the lower courts pointed out, there's a section in the Public Health

00:09:14.680 Act that actually gave the Chief Medical Officer of Health almost exclusive jurisdiction over

00:09:19.660 emergency.

00:09:20.200 Now, of course, that act did not envision a province-wide health emergency.

00:09:26.120 It was a very targeted, you know, regional outbreak, for example.

00:09:29.680 Yeah.

00:09:29.940 Yeah.

00:09:30.160 And so we've recommended a change to that statute, that in the end of the day, the elected

00:09:34.920 people have the final responsibility for the orders and regulations that are put out.

00:09:39.500 And there's actually, you can borrow wording from other provinces.

00:09:43.220 Manitoba has, Section 67 of its Public Health Act says exactly that, the same thing as the

00:09:50.260 government has in that Bill 6 that they've put forward.

00:09:53.820 You mentioned school closures earlier.

00:09:57.440 This has been, I think, one of the more contentious issues when we've discussed the post-pandemic

00:10:02.440 effect.

00:10:02.880 And I think one of the ones where we're probably going to see the most harm that was caused by

00:10:07.920 government intervention versus harm that was reduced or mitigated.

00:10:11.840 Now, your recommendation in this panel's report here is to, I don't want to paraphrase it incorrectly.

00:10:20.700 You don't eliminate the possibility of a school closure, but you certainly say it should be an 0.96

00:10:26.780 absolute last resort and for as short a time as possible.

00:10:31.160 But does that not still leave us in the same problem we were at, which is that it's up to

00:10:36.500 the discretion of people as to whether or not to close the schools and for how long?

00:10:40.940 Well, we tried to be as strong as we could on that.

00:10:43.140 And this is an area where you're almost getting an international consensus.

00:10:46.740 A lot of other countries have looked at this and come to the same conclusion, that the damage

00:10:50.680 that you do by closing down the school system simply doesn't, in comparison to the benefits

00:10:57.880 you get, it's just simply not worth doing.

00:10:59.560 The reason we didn't totally shut the door is because somebody would say to you, what

00:11:04.100 if there was a virus that only attacked children between the ages of 6 and 18?

00:11:09.660 What if that had happened?

00:11:11.360 Wouldn't you have to do something extraordinary?

00:11:13.760 So we didn't close the door 100%.

00:11:16.740 We closed it 98% because somebody can always come up with, well, there might be some kind

00:11:21.680 of a circumstance, but it would be very rare.

00:11:23.920 And to be fair to Alberta, the biggest closure was from March 20 to the end of that school

00:11:29.340 year, or March 2020 to the end of that school year.

00:11:33.140 They did close the schools twice after that, but for very short periods of time.

00:11:38.260 And I think they'd already come to the conclusion that, look, the damage that's done by this outweighs

00:11:43.140 any kind of benefit.

00:11:44.880 Yeah.

00:11:45.380 And ultimately, I mean, schools were not viewed as an essential service.

00:11:48.820 And I think that's one of the recommendations you've made, that they certainly should be.

00:11:52.380 Yeah.

00:11:53.180 And we actually propose, like the Alberta Education Act doesn't actually establish the

00:11:58.460 right to an education.

00:12:00.380 It has a little bit about the right to access to an education.

00:12:03.020 So we tried to beef that up too, that this is a fundamental.

00:12:07.240 The reason it wasn't there is because everybody took it for granted.

00:12:10.200 Of course, you have a right to an education.

00:12:11.940 But these days, we're saying, if that's what you mean, you better specify it in the statute.

00:12:16.540 One of the most contentious aspects of, I'd say, Alberta's response was the introduction

00:12:22.660 of vaccine passports.

00:12:24.920 Now, I think part of this was, I'd say, because of the political context.

00:12:28.640 Premier Jason Kenney, at the time, had taken that off the table previously before ultimately

00:12:34.320 doing it.

00:12:35.440 What's the recommendation on an intervention like that?

00:12:39.740 Well, if you strengthen the Bill of Rights the way we're talking about, it would make it

00:12:45.460 pretty difficult to impose a measure of that kind, because we're talking about the protection,

00:12:50.880 the right protection against medical interventions in which the recipient does not agree.

00:12:57.560 So if you strengthen those rights provisions of the Bill, you'd make it a lot more difficult

00:13:03.480 to implement those types of measures.

00:13:06.180 And there'd have to be a much greater justification, including the justification before the courts,

00:13:10.940 before you could do that.

00:13:12.000 And obviously, this is a recommendation you're putting towards the province.

00:13:17.480 Have you gotten from the government a commitment to accept all of these yet?

00:13:22.780 No, I think if I put on my political hat, if I was the government, then I think this will

00:13:27.060 be their position.

00:13:28.040 They'll say, thank you for this report.

00:13:30.020 There's obviously some recommendations here that we agree with and we'll go ahead with.

00:13:33.740 There'll be others that we would want to study a little further before we went that direction.

00:13:37.400 And there may be some measures in that report that say, you know, we see where you're suggesting

00:13:42.800 we go, but we've chosen to go a different direction.

00:13:44.980 I think that'll be their posture.

00:13:47.120 And it's a pretty reasonable one.

00:13:49.020 But our hope, this has not been done as an academic exercise.

00:13:52.700 Like this report is not being done just to have a report and have it reported in some learned

00:13:57.500 journal in a conference held on it next year.

00:13:59.760 The point of this report is to get amendments that would actually provide a better response

00:14:06.520 for Alberta in the future and to get those amendments to through the cabinet, through

00:14:11.000 the caucus and onto the floor of the legislature and voted on.

00:14:15.320 I'll feel we've done our job when those amendments are voted on and hopefully a lot of them passed.

00:14:21.620 I mean, one of the arguments we've heard from the federal government, even in the course

00:14:25.380 of some of the court fights over the Emergencies Act, is that things like emergencies are so

00:14:30.540 fact dependent.

00:14:31.940 They're so dependent on the situation at hand that it's very difficult to come up with a

00:14:36.280 general set of principles that will apply to every situation.

00:14:39.580 I mean, as we were discussing earlier, this was not envisioned as an emergency before it

00:14:44.460 came about.

00:14:45.120 So is there a risk that whatever the next emergency looks like, we're going to still go back to

00:14:49.680 zero regardless of this?

00:14:51.080 Because everyone's going to say, well, this is different from COVID because of X.

00:14:54.600 Well, you could.

00:14:55.640 One practical recommendation that we make is do when we suggest mandated in legislation

00:15:01.400 is do impact assessments on these proposed response measures.

00:15:06.180 And there's three types of impact assessments.

00:15:08.000 You could do a preliminary one.

00:15:09.960 If you're thinking of locking down the Alberta economy by 4%, you don't have all the information

00:15:16.720 but asking the question, what would the impact be in the economy in terms of employment or in

00:15:22.500 terms of GDP would not be a bad question to ask.

00:15:26.420 So do these preliminary ones.

00:15:27.980 And then if you've implemented something after three months or four months, you can do an interim

00:15:32.160 impact assessment.

00:15:33.680 Is this doing what we thought it would do?

00:15:36.280 Or is there other effects we didn't even know about?

00:15:38.540 And then you could do a post-crisis impact assessment that would be, you'd really learn

00:15:43.860 what the lessons are.

00:15:44.820 So that one practical measure ought to make the next response more attuned to the situation.

00:15:54.120 And you try to reduce some of the uncertainty by doing these impact assessments.

00:15:58.260 And we point out there's legislation.

00:16:01.040 Our Environmental Protection Act actually mandates impact assessments in a different area.

00:16:05.600 But it's not unreasonable to require impact assessments and to mandate them through legislation.

00:16:11.640 Was there any evidence that that was being done, even in a less formalized way with these

00:16:17.160 interventions?

00:16:18.620 Well, there may have been, and we might not have been privy to that.

00:16:22.380 But I think there's more that could be done.

00:16:25.540 And part of the problem was that this was seen originally as just a health emergency.

00:16:30.780 And it was not a lot of thought to, well, what's the economic consequences?

00:16:34.020 What are the educational consequences?

00:16:37.280 What are the social consequences?

00:16:38.600 That was really not thought about much.

00:16:41.080 So I don't think there was the kind of impact assessments as broad as that, that could or

00:16:47.060 should have been done.

00:16:48.760 So I guess the big question here, if we take the bigger picture view on this, and I'll lean

00:16:53.960 on your experience in federal politics here.

00:16:56.380 I know you were focused on the Alberta picture and the Alberta story.

00:16:59.860 But in your view, was Alberta a unique case in any way?

00:17:03.720 Or could a lot of these recommendations really be generalized to other provinces?

00:17:07.200 Well, yeah, I think they could be generalized to other provinces.

00:17:13.680 A lot of these acts, like the Public Health Act, the Education Act, at least on the prairie

00:17:19.040 provinces, the statutes in Saskatchewan and Manitoba are very similar to ours.

00:17:23.180 So this could have broader implications.

00:17:26.920 And I know this is beyond our mandate, but I feel that the federal government's response

00:17:33.460 could have been a lot sharper than it was, too.

00:17:36.260 But our mandate was to stick to Alberta.

00:17:38.840 So we're sticking to Alberta.

00:17:40.200 Well, but on that note, I mean, one of the issues that we saw, and this came up in Alberta's

00:17:45.420 response to the federal invocation of the Emergencies Act, was that it really was intervening

00:17:50.260 in provinces' ability to handle their own emergency affairs.

00:17:53.160 And I was wondering if there is a federalism component to this, of Alberta being able to

00:17:58.020 assert more of a role for its provincial emergency management when the federal government

00:18:02.520 is looking at something in that context.

00:18:04.440 Well, in the end of the day, in a health emergency, I mean, health is assigned to the provincial

00:18:09.980 jurisdiction.

00:18:10.640 So the provinces ought to be able to lead in that area.

00:18:14.660 One of the worries, too, is that these things get studied and there are recommendations that

00:18:18.680 happen and then they're never followed up on.

00:18:21.100 You might recall that there was the SARS, it wasn't exactly a pandemic, but with the SARS

00:18:27.240 incident in 2003.

00:18:29.880 And the federal government set up an inquiry into that, headed up by Dr. Naylor, who was

00:18:35.440 the Dean of Medicine at the University of Toronto.

00:18:37.680 And he did this 300-page report in which he said Health Canada was not capable because

00:18:43.680 of its size and its bureaucratic nature.

00:18:46.040 And yes, he said, because it's political, it was not capable of responding quickly enough

00:18:51.440 and effectively enough to an emergency.

00:18:53.140 And then he suggested you've got to set up a special agency.

00:18:56.260 And that's where the Public Health Agency for Canada came from.

00:19:00.620 But it was never beefed up in order to do what it should have been able to do.

00:19:07.300 So you get these incidents, you get studies, you get recommendations on how to fix it.

00:19:12.340 But if they're not followed up on, which the federal government didn't in that case, all

00:19:17.360 that effort is sort of wasted, you know.

00:19:19.520 Well, you've now served up the report.

00:19:21.760 So the ball is now in the Alberta government's court.

00:19:24.240 But I feel you have given them, and I'd say Albertans and Canadians, some useful food

00:19:29.100 for thought here.

00:19:30.100 Preston Manning is the chair of the Public Health Emergency's Governance Review Panel.

00:19:34.680 Thank you very much for your time and work on this, Preston.

00:19:37.000 I know you could be just enjoying your retirement on a beach somewhere.

00:19:39.800 But the call for service came and you answered it.

00:19:43.100 And I think we're very grateful for that.

00:19:44.780 Well, thank you, Andrew.

00:19:45.700 Good to talk to you.

00:19:46.920 All right.

00:19:47.300 And you, sir.

00:19:48.140 That was Preston Manning.

00:19:49.960 Let me know what you think in the comments there.

00:19:52.700 And again, I mean, I would say what Preston has talked about in the report is very measured.

00:19:57.540 Obviously, it had a very narrow focus and mandate.

00:20:00.660 But I would love to see other provinces take this up.

00:20:03.360 And I would say it's a tremendous source of shame that there has been so little desire

00:20:09.020 to look inwardly on this.

00:20:10.600 I think a lot of people, for understandable reasons, want to just move on from the pandemic,

00:20:14.680 say it happened, it sucked, we move on, and that's that.

00:20:17.240 But a lot of things happen.

00:20:19.040 Governments got away with a lot for which there has really been no review or re-evaluation.

00:20:26.440 And I think it's tremendously shameful.

00:20:28.500 And I'm glad Alberta has decided to do that.

00:20:30.720 Now, part of this was because they had a change in government.

00:20:34.280 A lot of governments don't want to look at themselves because they don't want the results

00:20:38.160 to come and say, well, here's all the ways that you screwed up.

00:20:41.300 So the Alberta government has said, look, this is, I think, something we need to look

00:20:45.240 into.

00:20:45.560 They've done this.

00:20:46.240 I think it's incumbent upon Danielle Smith to be very transparent about how she will

00:20:51.280 respond to these recommendations.

00:20:53.460 So my thanks again to Preston Manning for being available.

00:20:56.780 You can read that report on the Alberta government's website.

00:20:59.620 It just came out at 11 a.m.

00:21:01.620 Mountain Time, 1 p.m.

00:21:02.940 Eastern.

00:21:03.240 That was the start of this show.

00:21:04.780 So that was that.

00:21:06.160 You can go and read that now.

00:21:07.460 Have some nice midweek reading as the week progresses here.

00:21:10.760 That does it for us.

00:21:11.760 We will be back next week with regularly scheduled programming here on The Andrew Lawton Show,

00:21:17.200 Canada's most irreverent talk show on True North.

00:21:19.720 Thank you.

00:21:20.200 God bless.

00:21:20.920 And good day to you all.

00:21:22.500 Thanks for listening to The Andrew Lawton Show.

00:21:24.820 Support the program by donating to True North at www.tnc.news.

00:21:30.300 www.tnc.news.com.

00:21:37.240 Peace.

00:21:37.520 Woo.

00:21:38.060 Woo.

00:21:38.260 Woo.

00:21:39.380 Woo.

00:21:39.820 Woo.

00:21:40.500 Woo.

00:21:41.640 Woo.

00:21:41.900 Woo.

00:21:41.940 Woo.

00:21:42.400 Woo.

00:21:44.000 Woo.

00:21:45.020 Woo.

00:21:46.260 Woo.

00:21:47.040 Woo.

00:21:48.640 Woo.

00:21:49.120 Woo.

00:21:49.700 Woo.

00:21:50.580 Woo.

00:21:50.940 Woo.

00:21:51.520 Woo.

00:21:52.140 Woo.

00:21:53.360 Woo.

00:21:53.480 Woo.

00:21:53.980 Woo.

00:21:54.380 Woo.

00:21:56.000 Woo.

00:21:56.140 Woo.

00:21:57.060 Woo.

00:21:58.140 Woo.

00:21:59.260 Woo.

Juno News - November 15, 2023

Alberta Covid emergency inquiry recommends greater protection of civil liberties

Episode Stats

Summary

Transcript