Challenging Immunity: The Legal Battle Over Bill 6, Retroactive Legislation, and Government Accountability in Alberta
A motion filed today with permission of the Court by Mr. McDonald, a self-represented litigant, shines a spotlight on the complex and nuanced legal issues surrounding Bill 6, a contentious amendment to Alberta’s Public Health Act. At the heart of the case is a constitutional question: can a government retroactively shield itself from legal accountability by recasting operational decisions as “core policy” decisions through legislative amendments?
The motion seeks to admit evidence from the ongoing class-action lawsuit, Ingram v. Alberta, that underscores the government’s intent in passing Bill 6. This evidence, according to Mr. McDonald, is crucial to understanding the broader implications of the amendment and its potential abuse of legislative power.
The Legal Controversy Around Bill 6
Bill 6 emerged in the wake of the Ingram decision, which found certain public health orders issued by Alberta’s Chief Medical Officer of Health (CMOH) to be ultra vires — beyond the legal authority granted under the Public Health Act. The legislation was introduced with claims that it would protect Charter rights by “clarifying” and codifying the government’s authority to issue public health directives. However, Mr. McDonald contends that the real purpose of Bill 6 was to retroactively legitimize unlawful directives and preempt legal challenges, effectively shielding the government from liability in negligence claims.
Apart from the obvious intent to invoke section 66.1 of the Public Health Act, the crux of the controversy lies in the reclassification of decisions as “core policy” under the framework established in cases like Francis v. Ontario. Core policy decisions — those made by high-level officials involving political, economic, or social considerations — are generally immune from negligence claims. However, operational decisions, which involve the implementation of policy at ground level, do not enjoy the same immunity.
Mr. McDonald argues that Bill 6 deliberately blurred this distinction, transforming operational decisions into core policy decisions to avoid liability. The evidence he seeks to admit includes statements from the government’s briefs in Ingram, where it clearly relied on attempts to classify emergency public health directives as core policy strategy to justify its actions.
The Crown’s Strategic Delay
Despite its initial confidence in Bill 6’s alignment with Charter rights when proposing the legislation to the public of Alberta, the Crown has requested additional time to respond to Mr. McDonald’s motion so that more lawyeers can “familiarize” themselves with the case. This delay, according to Mr. McDonald, highlights a tension between the government’s public assurances and its legal strategy. When Bill 6 was introduced, the government presented it as a necessary tool to protect public health while respecting constitutional principles. Yet in court, the Crown’s reliance on legislative immunity and core policy doctrines paints a different picture — one of a government seeking to insulate itself from accountability.
The request for more time also raises questions about the Crown’s preparedness. Mr. McDonald has pointed out that the constitutional implications of Bill 6 were foreseeable from the moment it was introduced, especially given its retroactive application to decisions made during the pandemic within private litigation. The Crown’s need for additional time could suggest that it underestimated the legal challenges posed by its own legislation.
The Broader Legal Nuances
At the heart of this constitutional challenge are several complex legal issues affecting Alberta’s democracy:
- Separation of Powers and Judicial Oversight: The Supreme Court has emphasized that core policy immunity exists to maintain the separation of powers between the judiciary and the executive. However, Mr. McDonald argues that this doctrine should not be used to shield decisions that are operational in nature, such as expert-led emergency diectives like the COVID-19 orders (were supposed to be), or to retroactively legalize actions already deemed unlawful.
- Retroactivity and Legislative Fairness: Bill 6’s retroactive provisions present a thorny constitutional issue. Courts have long held that retroactive laws can undermine legal certainty and fairness, particularly when they affect ongoing litigation. In general, the presumption against retroactive legislation applies unless it is clear that the new law was explicitely intended to be applied in hindsight. Mr. McDonald contends that Bill 10 potentially allows this retroactive applicattion of Bill 6 back to when the public health emergency was first declared in March 2020. So he says that using retroactive legislation to alter the legal framework of ongoing claims not only prejudices litigants but also erodes public trust in the rule of law.
- Charter and Alberta Bill of Rights Protections: Mr. McDonald has linked the government’s actions to broader constitutional principles, arguing that the retroactive amendments infringe on rights protected under both the Charter and the Alberta Bill of Rights. He claims that the government’s actions deprived individuals of due process and property rights, raising questions about the balance between public health objectives and fundamental freedoms.
- The Crown has argued that because Mr. McDonald and the Ingram class are seeking financial compensation for negligence, blocking these lawsuits through the new law does not constitute irreparable harm, as financial losses are generally not considered irreparable. However, Mr. McDonald counters that if the legislation effectively undermines otherwise valid tort claims at the prima facie stage, the resulting harm is not merely financial — it is a violation of due process. Such a violation, he argues, constitutes a Charter harm that is inherently irreparable, regardless of the nature of the damages sought in the civil claims.
- Accountability in Public Health Decisions: The Ingram case revealed significant flaws in the government’s approach to public health directives, including allegations of political interference in decisions that should have been based on expert advice. Mr. McDonald argues that Bill 6 compounds these issues by providing a legal shield for such interference, potentially setting a dangerous precedent for future emergencies.
Implications for the Rule of Law
This case could have far-reaching implications, not only for how courts interpret emergency directives issued under s. 29 of the Public Health Act in tort law, but also for the broader relationship between governments and citizens. If Mr. McDonald succeeds in his challenge, it could reinforce the principle that governments cannot evade accountability through legislative sleight of hand. On the other hand, if the Crown prevails, it could embolden future governments to use similar tactics, raising concerns about the erosion of checks and balances in Canadian democracy.
The Alberta Court‘s decision on Mr. McDonald’s motion will be a critical milestone in this legal battle. As the Crown prepares its response, all eyes will be on the court to see how it navigates the complex intersection of constitutional law, public policy, and government accountability.
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