Bill 10, the Public Health (Emergency Powers) Amendment Act 2020, was rammed through by the Kenney-controlled UPC government with no advanced notice to the Opposition. Closure was with extremely limited debate time.
Power tends to corrupt and absolute power corrupt absolutely.
The result was to give the KenneyCons absolute political power. It is an evil, excessive, and retroactive political power grab that reaches far beyond the needs of public health and safety concerns caused by COVID-19. What we have in Bill 10 a modern Alberta example of Sir John Dalberg-Acton’s famous admonition: Power tends to corrupt and absolute power corrupt absolutely.
Kenney’s Bill 10 empowered individual Ministers with discretionary powers that go beyond the usual suspension or modification or application of existing laws. They granted themselves the power to effectively AMEND existing laws, AND at the sole discretion of a Minister.
The power to Ministers in Bill 10 is to actually change laws, at the sole and discretion of Cabinet Ministers. They can do this without going through the “niceties” of the Legislative process. It is effectively the end of responsible government, by a temporary suspension of the Rule of Law, under the ruse of “necessity” due to a public emergency, at least up to the end of the COVID-19 pandemic emergency.
This is not the first, nor the last, UCP corruptive abuse of the Rule of Law for political power purposes. It is the most egregious example so far. It is also consistent with the shift of the Kenney-controlled UCP towards imposing a Totalitarian approach to governance since being elected.
It’s Abusive, Complicated, and Hard to Follow – By Design
For background on the Kenney legal use of emergency powers for abusive political power purposes, check out the many excellent Ablawg.ca blog posts by Shaun Fluker from the University of Calgary Law School.
There is no question of the need to invoke emergency power in the face of the public health risks due to the COVID-19 pandemic. What is questionable is the expansive delegation of sole discretionary power to the UCP government Executive Branch to override, ignore, and amend existing laws.
This discretionary Ministerial power is being applied in ways that are not related to public health and public safety concerns due to COVID-19. Accountability, Transparency, Honesty, Openness, Justification, and Integrity principles of a functioning vibrant democracy.
Wait, it gets worse. The Bill 10 amendments to the Public Health Act section 52.1 makes these Minister discretion Orders exempt from the filing and publication laws that require them to be made public. There are ways to find them, but not in the usual places like the Alberta Gazette.
However, here is a link to an Alberta government page that you should bookmark. It contains information on all new ministerial orders, orders in council and legislation implemented to, as the page says…” to support Albertans, prevent the spread of COVID-19 and protect our economy.” https://www.alberta.ca/covid-19-orders-and-legislation.aspx#toc-3
A review of all matters outside the Chief Medical Officer of Health Orders is worth the time. I expect we will find many example fo political power abuses. That is a lot of work and hardly a priority for most citizens under these difficult circumstances. This is living proof that a public health emergency, like COVID-19, is a perfect time for an Authoritarian, like Jason Kenney, to abuse political power. Never waste a crisis, as they say.
WTF is Happening to FOIP?
In the Reboot Alberta context, I will be paying initial attention to Ministerial Order SA:009/2020 from Service Alberta Minister Nate Glubish. He used his sole discretionary power from Bill 10 to make significant changes to the Freedom of Information and Protection of Privacy Act. He did this on April 9, 2020, some 23 days after the March 17 declaration of a COVID-19 public health emergency. Minister Glubish decided that FOIP requests needed an extended response time from 30 to 90 days due to COVID-19.
He justified this because “…adhering to the strict timelines for disclosure and transparency in government, is not in the public interest at this time.” WHAT? REALLY? He claims “social distancing or focusing operations and resources on preparing for and responding to the pandemic…with fewer redirected resources is a burden.”
There are designated trained staff within the 1,160 public bodies subject to FOIP. It is unlikely they will all see a drastic increase in Access of Review Requests, or Filing of Complaints, in these COVID-19 days. That may be true in public health and safety-related government departments and some agencies, but not in others like Justice, Education, Culture, Environment, or Infrastructure, to name a few. What is the need for extended FOIP response times for agencies like libraries, school boards, universities, and colleges? They are all closed but with some staff still working!
So why the blanket Ministerial Order to amend FOIP application over the entire government, Agencies, Boards, and Commissions? Abuse of political power to centralize total control in the Executive Branch and be unaccountable to the elected Legislators is my conclusion.
Section 11 of the law that applies to FOIP now says, and I paraphrase, that a reasonable effort to reply to a request within 90 is required but considering the demands of COVID-19. (emphasis added) There’s more. An automatic 60-day extension can be applied by the government body with notice to the Filer, but that is all. So we really have an effective move from a 30 day reply period to 150 days.
All FOIP Is Effectively Gone So Long as Covid-19 is a Concern.
This extended FOIP response time is imposed by Ministerial Order, authorized by Bill 10, at the sole, absolute, and personal discretion of the Minister of Service Alberta. But wait, there is even more! Section 11(2) is the real kicker. It says in the event of a failure, by the head of a public body receiving a FOIP request, to respond at any time within the first 90 days of the extended 60 days the final result is deemed to be a decision to refuse access to the records subject to the FOIP request.
So there you have it, folks. Your right to freedom of information and privacy requests can be ignored for up to 90 days, or even 60 days more if someone in the government merely wants to extend the time. If that happens, and they simply ignore your request, the end result is your FOIP request is DEEMED REFUSED WITHOUT MORE.
This effectively terminates the FOIP laws in Alberta, at least until the Minister of Service Alberta is “…satisfied that these provisions (those FOIP laws of the pre-Ministerial Order) can be reinstated “…once the increased strain associated with responding to this pandemic has ended.” Again a matter of sole discretion and further potential for hiding corruption.
So the end of FOIP as we know it can also end and the original law be reinstated. But that will happen only if the Minister of Service Alberta is personally satisfied that any COVID-19 “increased strain” on all aspects of the Government of Alberta, its Agencies Boards, and Commissions has ended.
Again there is a sole discretionary power to end the demise of FOIP, but it is at the Ministerial level and beyond challenge except by the Courts. By the way, the Courts are not sitting except for emergencies.
I don’t imagine this qualifies as an emergency. So it’s up to citizens to take up this fight for Freedom of Information and Privacy in Alberta. Stay tuned for some ideas for how citizens can take on this egregious abuse of political power.