Author: Shaun Fluker Page 10 of 37

By: Shaun Fluker

PDF Version: COVID-19 and the Exercise of Legislative Power by the Executive

Legislation Commented On: Regulations Act, RSA 2000, c R-14 and Public Health Orders issued in relation to COVID-19

The COVID-19 pandemic has become a rare opportunity to study the widespread exercise of emergency lawmaking powers in Canada. Governments have enacted legal rules on matters such as social distancing, quarantine, economic controls, regulatory relief, employment standards, landlord-tenant, access to justice, and health care protocols. Commentators have warned that we must remain vigilant in ensuring these emergency measures do not offend the rule of law, and this message is likely to intensify as more emergency measures are used to either further the current shutdown or control our emergence from it; for example, in relation to surveillance and privacy rights as Joel Reardon, Emily Laidlaw, and Greg Hagen recently noted here. These substantive concerns are amplified by the fact that most COVID-19 emergency powers are being exercised by the executive branch of government and its delegates, using legislative power delegated to them in public health or emergency statutes. Because it is unlikely that legislatures envisioned such an extensive use of these powers for a prolonged time period, shortcomings and gaps in the lawmaking process are becoming apparent. Hallmarks such as organization, clarity, predictability, consistency, transparency, and justification – which, in normal times, provide the executive with much of its legitimacy to govern – have been impaired or are missing altogether in the exercise of legal power to contain COVID-19. This post examines how Alberta ministers and the Chief Medical Officer of Health have been exercising emergency powers so far during the pandemic, and makes some pointed observations on the hallmarks of legitimate governance and the role of the Regulations Act, RSA 2000, c R-14, in this regard.

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