Author: Shaun Fluker Page 9 of 38

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
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Alberta declared its second COVID-19 related public health emergency on November 24 with Order in Council 354/2020, which was issued under section 52.1 of the Public Health Act, RSA 2000, c P-37 (the Act). This declaration is in place for 90 days, unless extended by resolution of the legislature pursuant to section 52.8 of the Act. This declaration also reinstates the controversial power of ministers to unilaterally amend statutes (see here) over the holiday season. On the same day as this declaration, the Premier, the Minister of Health, and the Chief Medical Officer of Health announced new restrictions to “bend the curve” at a news conference. The Premier and the Minister of Health stated that many of the new restrictions would take effect immediately with the backstop of legal sanction (including $1000 tickets). These measures were considered and determined without any legislative debate, despite the fact that the Legislature is currently sitting. Public debate on these new legislative measures seems to have amounted to nothing more than questions from media at the news conference. COVID-19 has many victims; democracy should not be one of them.

Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou

By Shaun Fluker

On November 10, 2020

In Environmental, Protection of Species

By: Shaun Fluker

PDF Version: Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou

Agreement Commented On: Agreement for the conservation and recovery of the Woodland Caribou in Alberta entered into by Canada and Alberta on October 19, 2020 (the “Canada-Alberta Agreement on Woodland Caribou”)

Decisions Commented On: Canada Energy Regulator Report – Nova Gas Transmission GH-003-2018 (February 2020) and Order-in-Council PC 2020-811 (19 October 2020)

On October 23, Alberta and Canada announced they had finalized an agreement under section 11 of the federal Species at Risk Act, SC 2002, c 29 (SARA) concerning the threatened woodland caribou in Alberta. As I predicted here several years ago, this agreement is the federal government’s response to Alberta’s failure to implement recovery measures and habitat protection for caribou in accordance with the SARA recovery strategy, which clearly documents the Alberta populations as the most at-risk of all the woodland caribou remaining in Canada. This comment examines the actual significance of this agreement for the protection of remaining caribou habitat in Alberta. The short answer is that the caribou would be wise to hold off on celebrating this announcement. This section 11 agreement is unlikely to amount to much, if anything, for them in terms of actual habitat protection on the ground. No one should be fooled by the applause from industry or the self-congratulatory remarks made by our politicians: this agreement is yet another shameful exercise by those who merely want to give the appearance of effective public policy on reversing the decline of woodland caribou populations in Canada. It will do nothing to change the steadfast reliance by regulators on ‘manage and mitigate’ measures – as demonstrated most recently by the Canada Energy Regulator in its Nova Gas Transmission Report GH-003-2018 – that have proven to be overwhelmingly ineffective.

COVID-19 and Masking in Alberta K-12 Schools

By Shaun Fluker

On September 3, 2020

In COVID-19, Health Law

By: Shaun Fluker

PDF Version: COVID-19 and Masking in Alberta K-12 Schools

Order Commented On: Record of Decision CMOH Order 33-2020

Many parents and their children are excited about the return to K-12 school, but they are also anxious about the potential for a COVID-19 outbreak at their schools. The barrage of information delivered to parents in the past week by schools regarding protocols for COVID-19 probably isn’t helping to ease any feelings of discomfort. Nor are reports that some schools have already delayed the start of classes because of an infection. Now is the time for a voice of authority to give assurance that the Government of Alberta has taken all possible measures to assess and mitigate the risk of contracting COVID-19 in schools. These measures would include the enactment of rules governing a return to school which are clear, organized, justified, and developed in a transparent process. Instead, the Chief Medical Officer of Health (CMOH) and the Premier have been responding to criticism and confusion about the return to school plan, and in particular the rules pertaining to masking and social distancing in Alberta’s K-12 schools. This is a very unfortunate outcome and is raising questions of trust in the CMOH, but it does not come as a surprise to me. I have been following Alberta’s COVID-19 law and policy since the declaration of the public health emergency in March, and I have consistently remarked that CMOH decisions have been plagued with non-transparency and disorganization (see here). This messy approach to lawmaking breeds confusion, and that is exactly what has transpired here. With these thoughts in mind, this post takes a critical look at the back to school rules set out in CMOH Order 33-2020.

The Cost of Justice for the Western Chorus Frog

By Shaun Fluker

On August 21, 2020

In Environmental, Protection of Species

By: Shaun Fluker

PDF Version: The Cost of Justice for the Western Chorus Frog

Case Commented On: 9255-2504 Québec Inc. v Canada, 2020 FC 161 (CanLII)

This decision is a bit dated as it was issued back in January, but an English translation was only recently published and it caught my attention because I have been following the saga of the western chorus frog under the Species at Risk Act, SC 2002, c 29 (SARA) for several years (see Justice for the Western Chorus Frog? and More Justice for the Western Chorus Frog). In many ways, the case of the western chorus frog encapsulates the SARA story since it was enacted back in 2003: politics over science; missed statutory deadlines; and inadequate funding. SARA has certainly systematized efforts to develop recovery frameworks for threatened species and provided some additional transparency. However, the legislation has done very little to actually protect critical habitat beyond what would already be available under protected area or wildlife legislation. 9255-2504 Québec Inc. v Canada offers a glimpse into the question of who pays the cost of protecting critical habitat for a threatened species. The judgment also includes an unusual amount of detailed testimony from federal officials on how SARA has been applied in this case. Accordingly, this is an important decision not just for the western chorus frog but for all SARA-listed species and those interested in following the application of SARA generally.

Some Comments on Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020

By Shaun Fluker

On July 10, 2020

In Administrative Law, COVID-19, Rule of Law

By: Shaun Fluker

PDF Version: Some Comments on Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020

Legislation Commented On: Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020, 2nd Sess, 30th Leg, Alberta, 2020

Lawmaking by the Alberta government in response to COVID-19 has been somewhat disorganized and very non-transparent. As well, Alberta seems to be the only Canadian jurisdiction which seized on the public health emergency as an opportunity to double-down on Henry VIII lawmaking by the Executive. These are troubling observations in a political system where the legitimacy of governance is based upon an open, accountable, and predictable legislative process. The need to act swiftly and flatten the curve of COVID-19 certainly justified some deviation from the lawmaking norm in a representative democracy, but Alberta has relied extra heavily on executive and delegated legislative authority in its COVID-19 lawmaking. Accordingly, it would have been reasonable to expect the Legislature to restore some normalcy to lawmaking when the state of public emergency ended in Alberta on June 15.

On June 18, the Minister of Health introduced Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020 into the Legislature, and most of the Act came into force on June 26 with royal assent. As the Legislature’s first comprehensive post-emergency response to COVID-19, as opposed to subject-specific legislation or the lawmaking thus far enacted by the Executive and its delegates, it is disappointing to observe how little this statute offers. However, on its first reading the Minister of Health did at least promise a forthcoming comprehensive review of the Public Health Act, RSA 2000, c P-37, and Bill 24 requires this to commence no later than August 1.

Author: Shaun Fluker Page 9 of 38

COVID-19 and Rule by Fiat under Alberta’s Public Health Act

Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou

COVID-19 and Masking in Alberta K-12 Schools

The Cost of Justice for the Western Chorus Frog

Some Comments on Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020