Category Archives: Statutory Interpretation

The Next Chapter in the Role of Alberta’s Chief Medical Officer of Health

By: Lorian Hardcastle

Legislation and Cases Commented on: Public Health Act, RSA 2000, c P-37; CM v Alberta, 2022 ABKB 716 (CanLII); Ingram v Alberta (Chief Medical Officer of Health), 2023 ABKB 453 (CanLII)

PDF Version: The Next Chapter in the Role of Alberta’s Chief Medical Officer of Health

At the start of the COVID-19 pandemic, provincial public health officials were thrust into the spotlight as trusted figures who would guide the public through the unknowns of a novel virus. However, as the pandemic raged on and tensions emerged regarding the appropriate restrictiveness of public health measures, cracks formed in the relationships between the public, politicians, and public health officials. At times, Alberta’s then Premier Jason Kenney and then Minister of Health Tyler Shandro seemed content to take credit for effectively balancing “lives and livelihoods”. However, when things were not going well, they would credit then Chief Medical Officer of Health (CMOH) Deena Hinshaw. For example, when the government’s disastrous “Open for Summer” plan contributed to severe hospital capacity problems and prompted discussions of sending people out of province for care and rationing essential health services, Shandro was quick to note that the plan “came from Dr. Hinshaw” and that he was “deferential to [her] independence.” Continue reading →

Running Afoul the Separation, Division, and Delegation of Powers: The Alberta Sovereignty Within a United Canada Act

By: Martin Olszynski and Nigel Bankes

Legislation Commented on: Bill 1 – Alberta Sovereignty Within a United Canada Act

PDF Version: Running Afoul the Separation, Division, and Delegation of Powers: The Alberta Sovereignty Within a United Canada Act

On Tuesday, November 29, 2022, the provincial government unveiled its highly anticipated and controversial “Alberta Sovereignty Within a United Canada Act” (Bill 1). The promise to introduce some form of sovereignty legislation was the key plank of Premier Danielle Smith’s UCP leadership campaign this past summer and fall. An initial ABlawg post that drew from the general contours of the legislation, as found in a 2021 policy document called the “Free Alberta Strategy,” expressed concerns that “the clearest and most immediate effects of such ideas is not sovereignty, nor changes to the confederation bargain, but rather a damaging blow to the rule of law and the basic building blocks of democratic governance.” Continue reading →

Alberta’s Vaccine Passport System: The Good, the Bad, and the Ugly

By: Lorian Hardcastle and Shaun Fluker

PDF Version: Alberta’s Vaccine Passport System: The Good, the Bad, and the Ugly

Matters Commented On: Chief Medical Officer of Health (CMOH) Order 42-2021 and CMOH Order 43-2021

Good governance practices by the executive branch in how it addresses COVID-19 have largely been absent throughout the pandemic across Canada, but surely we have hit a new low in Alberta with what transpired last week. Facing criticism from the public, pleas from health care professionals, and a health care system straining under the increasing number of hospitalizations, the Premier reappeared at a September 15 press conference after a lengthy hiatus, along with the Minister of Health, the Chief Medical Officer of Health, and the CEO of Alberta Health Services. The Premier was questioned about the termination of public health restrictions in early July and the decision to move towards treating COVID-19 as endemic by largely eliminating basic public health measures like testing, tracing, and isolating (a decision that the government later backpedalled on). Although the Premier was initially apologetic for ending public health restrictions in an effort to enjoy the “best summer ever,” he later stated that “I don’t apologize for the decision to relax public health restrictions in the summer….” For her part, the CMOH has admitted that July’s decisions, which were based on her recommendations, put Alberta on its devastating fourth wave trajectory and has said that she “deeply” regrets contributing to the narrative that COVID-19 was over. Continue reading →

Kananaskis Conservation Pass

By: Shaun Fluker

PDF Version: Kananaskis Conservation Pass

Ministerial Order Commented On: Ministerial Order 51/2021 (Environment and Parks)

On May 27, the Minister of Environment and Parks (Jason Nixon) issued Ministerial Order 51/2021 to impose a fee to access Kananaskis Country. This new access fee applies to many popular parks and recreational areas in Kananaskis Country such as West Bragg Creek, Barrier Lake, Elbow Falls, Evans Thomas Creek, Spray Lakes, and Highwood Pass. Payment of the fee provides the purchaser with a Kananaskis Conservation Pass. The geographic scope of the fee requirement is curiously both over and under inclusive in relation to its name. The boundary map on the Alberta parks website (and attached to Ministerial Order 51/2021) indicates the access fee applies to areas outside of what is commonly known as Kananaskis Country (e.g. portions of the Bow Valley Wildland Park east of Canmore, including Grotto Canyon and Mount Yamnuska) and – as was pointed out by Nathan Schmidt (JD 2021) here – the fee does not apply to the McLean Creek area which is clearly within Kananaskis Country. This post critically examines the legislative changes made to implement the Kananaskis Conservation Pass requirement. Continue reading →

Distracted Driving and the Traffic Safety Act

By: Shaun Fluker

PDF Version: Distracted Driving and the Traffic Safety Act

Case Commented On: R v Ahmed, 2019 ABQB 13 (CanLII)

Alberta added distracted driving offences to the Traffic Safety Act, RSA 2000 c T-6 in 2011, and two of these provisions are the subject of this decision by Justice John T. Henderson. The accused was charged under section 115.1(1)(b) for operating a vehicle while looking at his mobile phone. This particular section prohibits driving while holding, viewing or manipulating a hand-held electronic device or a wireless electronic device. The facts were not in dispute at trial, but the traffic commissioner ruled that a mobile phone is not an “electronic device” and thus acquitted the accused. The Crown appealed this decision to the Court of Queen’s Bench. A literal or plain reading of section 115.1(1)(b) does lead one to question the view that a mobile device is not an electronic device, but statutory interpretation is not always a literal exercise – particularly when the provisions themselves are written in a complicated or “inelegant” manner as is noted by the court here. This case is perhaps more about distracted drafting than it is distracted driving.

Continue reading →