COVID-19 and the Public Health Act (Alberta)

By: Shaun Fluker

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Legislation Commented On: Public Health Act, RSA 2000, c P-37

All levels of government in Canada are working hard to contain the COVID-19 pandemic and mitigate its severe impacts on public health. Despite the fact that COVID-19 is a national emergency, the federal government has not declared it as such under the Emergencies Act, RSC 1985, c 22 (4th Supp) (I previously wrote about this here). For now, we have a collaboration of public health emergency declarations made by provincial, territorial and municipal governments. Alberta declared a public health emergency on March 17, on the recommendation of the Minister of Health and on the advice of the Chief Medical Officer of Health, with Order in Council 80/2020 issued under section 52.1 of the Public Health Act, RSA 2000, c P-37. This post critically examines how Alberta is exercising its emergency legal power under this legislation. Continue reading →

COVID-19 and the Emergencies Act (Canada)

By: Shaun Fluker

PDF Version: COVID-19 and the Emergencies Act (Canada)

Legislation Commented On: Emergencies Act, RSC 1985, c 22 (4th Supp)

As we move deeper into the COVID-19 pandemic in Canada, provincial, territorial and municipal governments are now using legal rules to impose self-isolation and social distancing measures for the common good of preventing community transmission of the virus. The narrative in daily updates from government leaders and public health officials has shifted away from encouraging voluntary practices and more towards invoking command and control, as evidence mounts that voluntary suggestions are not being followed. Command and control is, however, largely going to be a general deterrence measure because actual enforcement in individual cases will be very difficult and resource intensive (hence why some jurisdictions, such as the State of Oregon, are encouraging citizens to help with enforcement by reporting violators of public health orders). All of this underscores the fact that we are truly in the midst of a socio-economic crisis, and has led to suggestions (e.g. see here and here) that federal cabinet issue a proclamation of national emergency under the Emergencies Act, RSC 1985, c 22 (4th Supp) and exercise the powers granted thereunder. Continue reading →

“Extraordinarily Difficult”: Parenting Time and the Rights of Children in Cases Involving Family Violence

By: Jennifer Koshan and Irene Oh

PDF Version: “Extraordinarily Difficult”: Parenting Time and the Rights of Children in Cases Involving Family Violence

Case Commented On: DAF v SRG, 2020 ABCA 25 (CanLII)

Family law cases can raise issues that are very challenging for the legal system to address, especially where there has been domestic violence. As the Alberta Court of Appeal recently noted in DAF v SRG, these cases can entail “extraordinarily difficult decisions” with “potentially profound consequences for the parties and the children involved” (at para 19). Yet these cases are “made challenging by limited time and often conflicting affidavits” and may involve “disparate proceedings in multiple courts” (at para 19). Alberta was moving toward a Unified Family Court that would have consolidated family proceedings in one court presided over by judges experienced in family law. However, in late February the government put this initiative on hold, apparently because of costs.

The decision of Justices Patricia Rowbotham, Sheila Greckol and Dawn Pentelechuk in DAF v SRG underlines the need for a Unified Family Court in Alberta, raising issues about what level of parental contact with children is appropriate where there has been domestic violence and how the voices of children can be brought forward in such cases. The decision also provides an opportunity to discuss recent amendments to the Divorce Act, RSC 1985, c 3 (2nd Supp) and what impact those amendments should have on family law in Alberta. Continue reading →

Freedom of Information in Alberta: The Troubles With the OIPC

By: Drew Yewchuk

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Decision Commented On: Re Alberta Health, F2019-16, 2019 CanLII 33710

This is the third in a series of posts on Alberta’s access to information legislation, the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act). The first post set out the basic structure of the access to information, and the second post was a case study on the use of the FOIP Act. This post focuses on the Office of the Information and Privacy Commissioner (OIPC), which serves as the initial dispute resolution mechanism for FOIP issues. The post also describes how the “adequate alternative remedy principle” can make troubled administrative review bodies into obstacles to effective oversight. Continue reading →

What is the Threshold for Entrapment?

By: Kenryo Mizutani

PDF Version: What is the Threshold for Entrapment?

Case Commented On: R v Turgeon-Myers, 2019 ABQB 493

In the heist film “Entrapment,” Mac, a professional thief (played by Sean Connery), says, “I don’t like surprises.” Gin, an undercover agent pretending to be a thief herself (played by Catherine Zeta-Jones), replies: “Trust me, there won’t be any.” Mac then replies: “Trust me, there always are surprises.” And there always are surprises.

At first glance, R v Turgeon-Myers, 2019 ABQB 493, may seem like a case about entrapment. Yet upon closer examination, a careful reader may be surprised to learn that there is an evidentiary issue beneath the issue of entrapment. Similar to my earlier blog article about the informant privilege, Turgeon-Myers involved a police informant. This informant provided the police with information about drug trafficking, and the police subsequently conducted an undercover operation to make an arrest. The accused, while initially admitting guilt, applied for a stay of proceedings on the basis of entrapment. Continue reading →