Juno News - November 15, 2023Alberta Covid emergency inquiry recommends greater protection of civil liberties
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Summary
In this special edition of the show, Andrew Lawton talks to Preston Manning, who served as the Chair of the Public Health Emergencies Governance Review Panel, and the author of the report that led to that panel's report.
Transcript
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Welcome to Canada's Most Irreverent Talk Show. This is the Andrew Lawton Show, brought to you by True North.
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Hello and welcome to you all. This is the Andrew Lawton Show, Canada's Most Irreverent Talk Show here on True North.
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A bit of a special edition of the program. I have been roused from my vacation.
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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,
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who was tapped by the government of Alberta under Danielle Smith to be the chair of the Public Health Emergencies Governance Review Panel.
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Now, this was a process that looked at Alberta's declaration of a provincial emergency for the COVID era
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and some of the policies and interventions and mechanisms that came about under the auspices of that emergency.
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Now, we know what those are. Shutdowns of schools, of the economy, implementation of vaccine passports,
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very contentious policies that in large part led to, I think, the ousting of Jason Kenney as the UCP leader
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and then the introduction of a leadership race that elected Danielle Smith.
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But the Alberta government tapped Preston Manning to chair a panel to look into this chapter in the province's history.
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Now, the report just came out moments ago, and in it, there are a number of recommendations that go to the definition of emergency,
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that go to strengthening Alberta's support for civil liberties of rights and freedoms,
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that go to limiting and almost eliminating, not quite, school closures.
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So, I've had the opportunity to go through an embargoed copy of the report,
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and I wanted to talk about its recommendations and the broader landscape of Alberta's emergency management
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And we go to this discussion to Preston Manning,
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who is the chair of the Public Health Emergencies Governance Review Panel and the author of this report,
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also a legend and institution in Canadian politics and Alberta politics.
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So, let's start off, firstly, with your role here.
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I know you were originally chairing the Citizen-Led Inquiry,
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and then Premier Danielle Smith had tapped you to lead this panel.
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What was your mandate coming into this process?
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The main purpose, Andrew, and it's good for people to understand this,
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this was not a panel to look into everything that the government did with respect to COVID.
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our mandate was to investigate the legislation that authorized the orders and regulations whereby the government responded to COVID
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and to suggest amendments to that legislation or additional legislation which would better prepare the province for the next emergency.
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So, in one long sentence, that's what our job was.
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And I think the reason the Premier asked me to do it, our families had 55 years' experience with legislation,
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Alberta's particularly, but also in the federal parliament.
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So, I was asked to chair it and was more than willing to do that.
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Obviously, the, and the report makes no bones about this,
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the emergency declaration, the emergency orders in Alberta did infringe on civil liberties.
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They did infringe on people's mobility rights, their autonomy rights.
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And the report makes clear that there wasn't really much judicial recourse available to people
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because the courts were very deferential whenever these challenges could be heard.
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Do you make a finding that these suspensions of civil liberties were justified or not?
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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,
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but also the protection of their rights and freedoms under emergency conditions.
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Because, as you say, they are strained by the response orders.
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So, what we can't deal with the, I mean, I have ideas on how you would change the federal charter,
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But what Alberta can do is amend the Alberta Bill of Rights to strengthen the protection of rights and freedoms
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And we have about 20 proposed amendments to the Alberta Bill of Rights to specifically strengthen that.
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And, of course, that statute gives direction to the courts.
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You know, if you're a lawyer and you're just bringing the case before the court,
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all you can do is argue within the law as it is now.
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But legislators can give direction to the courts.
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And this gives direction that we've got to get a better balance between protecting from harm and protecting rights and freedoms.
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The panel has also recommended an amendment to the definition of emergency.
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And I was wondering if you could speak to why you felt the current definition didn't quite serve Albertans in this context.
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Well, I don't think nobody envisioned a province-wide emergency of this kind.
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The section of the Public Health Act dealing with the powers of the Chief Medical Officer of Health
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was basically focused on how to deal with local emergencies.
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There's a disease outbreak in Smoky Lake or there's a problem at a hospital in Lethbridge or something like that.
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So our legislation, nor does the Education Act.
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The Education Act never envisioned the government having to think about shutting down the system.
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In fact, the Education Act is all thrust the other way.
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So one of our recommendations, and it's not just on public emergencies,
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there's a number of these areas where we ought to clarify the definition.
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What do we mean by a province-wide public emergency?
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What do we mean by professional conduct or misconduct in an emergency?
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A lot of these phrases have never been defined in terms of an emergency.
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And we suggest that a lot of statutes have, you know, the first clause of them,
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and the second clause is a definitional clause.
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And so we say maybe we should sharpen up those definitions.
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Do you feel that Alberta was too quick or too broad in declaring the emergency
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or in classifying what COVID was as an emergency?
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Well, it's, you know, it's hard to be judgmental after the fact.
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A lot of these decisions were made with incomplete information.
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They were made with an eye on what the federal government was doing and ordering
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and what they might finance in terms of emergency measures.
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but just say that in the future we could be better prepared.
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And one of the steps would be better prepared is a definition of what a public emergency is.
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Well, on that note, I've heard, you know, certain criticisms such as, for example, from David Redmond,
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that Alberta had an approach to emergency management that really wasn't followed.
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And I was wondering if that was, in your view, an accurate assessment of the problem
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or if really the issue was that the preparations really didn't serve the situation that Alberta found itself in
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Well, think of what David is getting at now because he was the head of that agency a number of years ago.
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And that agency back in his day was bigger than it is today.
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And then during the Klein era, when Ralph was trying to reduce expenditures in that,
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the emergency management agency was reduced in size and reduced in capability.
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And so that's partly the rationale behind our recommendation.
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A, that we think that's the agency that should have the overall coordinating responsibility.
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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.
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That would be something the government would have to decide to do.
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And we put that in perspective, too, that we have an appendix on what were the consequences
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of the economic lockdown measures and the social distancing measures.
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On the economy, that produced an 8% contraction of a $300 billion GDP economy.
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8% of $300 billion is $24 billion worth of debt.
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So if you could prevent that or better manage the response to it by beefing up the emergency
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management agency, you know, you could ask or they could ask, well, what's it worth to
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you to try to prevent $24 billion worth of damage to your economy?
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Maybe spending a little bit more on our agency would be the right direction to go.
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Well, in one area where the panel's recommendations are clear, and I think the premier has also
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spoken about this, is that the buck has to stop with the government.
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We saw this complete abdication of decision-making authority to public health officials who have
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a very narrow mandate and focus, and more importantly, were not elected to shepherd provinces through
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Well, as the courts, the lower courts pointed out, there's a section in the Public Health
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Act that actually gave the Chief Medical Officer of Health almost exclusive jurisdiction over
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Now, of course, that act did not envision a province-wide health emergency.
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It was a very targeted, you know, regional outbreak, for example.
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And so we've recommended a change to that statute, that in the end of the day, the elected
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people have the final responsibility for the orders and regulations that are put out.
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And there's actually, you can borrow wording from other provinces.
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Manitoba has, Section 67 of its Public Health Act says exactly that, the same thing as the
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government has in that Bill 6 that they've put forward.
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This has been, I think, one of the more contentious issues when we've discussed the post-pandemic
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And I think one of the ones where we're probably going to see the most harm that was caused by
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government intervention versus harm that was reduced or mitigated.
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Now, your recommendation in this panel's report here is to, I don't want to paraphrase it incorrectly.
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You don't eliminate the possibility of a school closure, but you certainly say it should be an
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absolute last resort and for as short a time as possible.
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But does that not still leave us in the same problem we were at, which is that it's up to
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the discretion of people as to whether or not to close the schools and for how long?
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Well, we tried to be as strong as we could on that.
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And this is an area where you're almost getting an international consensus.
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A lot of other countries have looked at this and come to the same conclusion, that the damage
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that you do by closing down the school system simply doesn't, in comparison to the benefits
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The reason we didn't totally shut the door is because somebody would say to you, what
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if there was a virus that only attacked children between the ages of 6 and 18?
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Wouldn't you have to do something extraordinary?
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We closed it 98% because somebody can always come up with, well, there might be some kind
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And to be fair to Alberta, the biggest closure was from March 20 to the end of that school
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year, or March 2020 to the end of that school year.
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They did close the schools twice after that, but for very short periods of time.
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And I think they'd already come to the conclusion that, look, the damage that's done by this outweighs
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And ultimately, I mean, schools were not viewed as an essential service.
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And I think that's one of the recommendations you've made, that they certainly should be.
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And we actually propose, like the Alberta Education Act doesn't actually establish the
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It has a little bit about the right to access to an education.
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So we tried to beef that up too, that this is a fundamental.
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The reason it wasn't there is because everybody took it for granted.
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But these days, we're saying, if that's what you mean, you better specify it in the statute.
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One of the most contentious aspects of, I'd say, Alberta's response was the introduction
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Now, I think part of this was, I'd say, because of the political context.
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Premier Jason Kenney, at the time, had taken that off the table previously before ultimately
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What's the recommendation on an intervention like that?
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Well, if you strengthen the Bill of Rights the way we're talking about, it would make it
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pretty difficult to impose a measure of that kind, because we're talking about the protection,
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the right protection against medical interventions in which the recipient does not agree.
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So if you strengthen those rights provisions of the Bill, you'd make it a lot more difficult
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And there'd have to be a much greater justification, including the justification before the courts,
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And obviously, this is a recommendation you're putting towards the province.
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Have you gotten from the government a commitment to accept all of these yet?
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No, I think if I put on my political hat, if I was the government, then I think this will
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There's obviously some recommendations here that we agree with and we'll go ahead with.
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There'll be others that we would want to study a little further before we went that direction.
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And there may be some measures in that report that say, you know, we see where you're suggesting
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we go, but we've chosen to go a different direction.
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But our hope, this has not been done as an academic exercise.
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Like this report is not being done just to have a report and have it reported in some learned
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The point of this report is to get amendments that would actually provide a better response
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for Alberta in the future and to get those amendments to through the cabinet, through
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the caucus and onto the floor of the legislature and voted on.
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I'll feel we've done our job when those amendments are voted on and hopefully a lot of them passed.
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I mean, one of the arguments we've heard from the federal government, even in the course
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of some of the court fights over the Emergencies Act, is that things like emergencies are so
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They're so dependent on the situation at hand that it's very difficult to come up with a
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general set of principles that will apply to every situation.
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I mean, as we were discussing earlier, this was not envisioned as an emergency before it
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So is there a risk that whatever the next emergency looks like, we're going to still go back to
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Because everyone's going to say, well, this is different from COVID because of X.
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One practical recommendation that we make is do when we suggest mandated in legislation
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is do impact assessments on these proposed response measures.
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If you're thinking of locking down the Alberta economy by 4%, you don't have all the information
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but asking the question, what would the impact be in the economy in terms of employment or in
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terms of GDP would not be a bad question to ask.
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And then if you've implemented something after three months or four months, you can do an interim
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Or is there other effects we didn't even know about?
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And then you could do a post-crisis impact assessment that would be, you'd really learn
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So that one practical measure ought to make the next response more attuned to the situation.
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And you try to reduce some of the uncertainty by doing these impact assessments.
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Our Environmental Protection Act actually mandates impact assessments in a different area.
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But it's not unreasonable to require impact assessments and to mandate them through legislation.
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Was there any evidence that that was being done, even in a less formalized way with these
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Well, there may have been, and we might not have been privy to that.
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And part of the problem was that this was seen originally as just a health emergency.
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And it was not a lot of thought to, well, what's the economic consequences?
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So I don't think there was the kind of impact assessments as broad as that, that could or
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So I guess the big question here, if we take the bigger picture view on this, and I'll lean
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I know you were focused on the Alberta picture and the Alberta story.
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But in your view, was Alberta a unique case in any way?
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Or could a lot of these recommendations really be generalized to other provinces?
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Well, yeah, I think they could be generalized to other provinces.
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A lot of these acts, like the Public Health Act, the Education Act, at least on the prairie
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provinces, the statutes in Saskatchewan and Manitoba are very similar to ours.
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And I know this is beyond our mandate, but I feel that the federal government's response
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could have been a lot sharper than it was, too.
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Well, but on that note, I mean, one of the issues that we saw, and this came up in Alberta's
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response to the federal invocation of the Emergencies Act, was that it really was intervening
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in provinces' ability to handle their own emergency affairs.
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And I was wondering if there is a federalism component to this, of Alberta being able to
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assert more of a role for its provincial emergency management when the federal government
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Well, in the end of the day, in a health emergency, I mean, health is assigned to the provincial
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So the provinces ought to be able to lead in that area.
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One of the worries, too, is that these things get studied and there are recommendations that
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You might recall that there was the SARS, it wasn't exactly a pandemic, but with the SARS
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And the federal government set up an inquiry into that, headed up by Dr. Naylor, who was
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the Dean of Medicine at the University of Toronto.
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And he did this 300-page report in which he said Health Canada was not capable because
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And yes, he said, because it's political, it was not capable of responding quickly enough
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And then he suggested you've got to set up a special agency.
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And that's where the Public Health Agency for Canada came from.
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But it was never beefed up in order to do what it should have been able to do.
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So you get these incidents, you get studies, you get recommendations on how to fix it.
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But if they're not followed up on, which the federal government didn't in that case, all
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So the ball is now in the Alberta government's court.
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But I feel you have given them, and I'd say Albertans and Canadians, some useful food
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Preston Manning is the chair of the Public Health Emergency's Governance Review Panel.
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Thank you very much for your time and work on this, Preston.
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I know you could be just enjoying your retirement on a beach somewhere.
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But the call for service came and you answered it.
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Let me know what you think in the comments there.
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And again, I mean, I would say what Preston has talked about in the report is very measured.
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Obviously, it had a very narrow focus and mandate.
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But I would love to see other provinces take this up.
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And I would say it's a tremendous source of shame that there has been so little desire
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I think a lot of people, for understandable reasons, want to just move on from the pandemic,
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say it happened, it sucked, we move on, and that's that.
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Governments got away with a lot for which there has really been no review or re-evaluation.
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Now, part of this was because they had a change in government.
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A lot of governments don't want to look at themselves because they don't want the results
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to come and say, well, here's all the ways that you screwed up.
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So the Alberta government has said, look, this is, I think, something we need to look
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I think it's incumbent upon Danielle Smith to be very transparent about how she will
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So my thanks again to Preston Manning for being available.
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You can read that report on the Alberta government's website.
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Have some nice midweek reading as the week progresses here.
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We will be back next week with regularly scheduled programming here on The Andrew Lawton Show,
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Canada's most irreverent talk show on True North.
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Thanks for listening to The Andrew Lawton Show.
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