Constitutional challenge questions Manitoba top doctor's power to pass health orders
WINNIPEG -- A constitutional challenge is calling on the court to strike down parts of the province’s public health act which lawyers argue give Manitoba's chief provincial public health officer immense and limitless power with little oversight.
On Tuesday as Dr. Brent Roussin, Manitoba's chief public health officer, announced the new round of public health orders set to take effect on Friday, the Justice Centre for Constitutional Freedoms launched a challenge in Manitoba's Court of Queen’s Bench questioning the power given to the top doctor to implement those orders.
In its arguments, lawyers for the Justice Centre argued there is insufficient oversight in the extent of what Dr. Brent Roussin and Dr. Jazz Atwal, Manitoba's deputy chief public health officer, are allowed to do in a public health emergency.
The centre filed the constitutional challenge in December, representing seven churches, along with a minister, deacon and individual who had been fined under Manitoba's health orders.
Allison Pejovic, a lawyer for the Justice Centre, told the court she believes giving Dr. Roussin this kind of power, without requiring him to publicly back up the orders with scientific evidence is unconstitutional and violates principles of democracy.
"We are putting our trust in one person, and when you give that much power to one person, there has to be a real accountability," she said in court on Tuesday. "The accountability that the minister is going to take back to legislature has to be informed.”
She said the Justice Centre wants legislative changes that would require:
-more public consultation on the impacts of new orders
-the top doctor give scientific evidence for the orders to the public
-that he keeps the public up to date on any scientific changes
-and provide regular updates to the health minister on changes to scientific evidence
Michael Conner, the lawyer representing the Province of Manitoba, told the court the public health act was created over a decade under two previous governments. He said there is nothing in the legislation that prohibits the broad delegation of power.
"The legislature made a deliberate and conscious choice to delegate specific powers to a medical expert – the chief public health officer – to make public health emergency orders in response to a pandemic," he told the court.
Conner said there are several layers of accountability in place when the top doctor creates an order.
He said the order requires ministerial approval from Manitoba's Health Minister who can revoke the chief public health officer’s appointment at any time. Conner said the legislature still has the authority to amend the powers given to the top doctor.
He said in terms of scientific evidence, the minister can be held to account in the legislature, by the media and by the public.
Manitoba's Premier Brian Pallister had little to say about the constitutional challenge when asked during a news conference on Monday.
"I think COVID should be declared unconstitutional. I think we should all agree on that," he said. "The reality is we are doing our best to protect the lives and well-being of the people of our province and that's what Brent and I are going to continue to do and that's what I know most Manitobans want us to do."
Chief Justice Glenn Joyal told the court these are interesting and complicated arguments – which he said he will be grappling with.
Dr. Roussin would not comment on the case, as it is still before the courts.
The case is scheduled to continue in court on Wednesday.