During the ten years I have spent as a constitutional lawyer advocating for individual rights and freedoms, I learned a few things about how the government works and doesn’t. I want to convince you that we do not want politicians who treat “follow the science” as their primary duty.
Unquestionably, COVID-19 infections can result in severe personal health problems for a segment of the population, even though many people experience only minor symptoms and others are asymptomatic. There is an increasingly well-defined vulnerable portion of the population. This is uncontroversial.
But there are other ideas being bandied about that I simply cannot agree with. Foremost is the notion that politicians must at all times “follow the science.” Viewing “science” as a sort of Prime Directive for political leaders would bring terrible societal consequences. As well, it’s not how our political system is supposed to work.
Our knowledge of the natural world is not fixed. It’s often ambiguous, capable of supporting multiple plausible theories. Our understanding of the world shifts constantly to accommodate new information. This may make many of us feel as though the carpet is constantly being yanked out from under our feet. But it should be a source of joy. As new data, new arguments, and new hypotheses arise, these are assessed and then subsumed and adapted into our previous understanding. Through the application of rational argument to empirical evidence, over time, our scientific knowledge of the world improves.
Through this accommodation of new information, we are better situated to tailor our behaviours and policy measures to achieve the results that we desire. New information should not be a source of skepticism about the state of our scientific knowledge or science itself: it is the basis of the scientific method. It’s how science has historically been able to produce such wonderful results.
But, if politicians were to constantly change policies based upon newly emerging information, there would be social chaos. Sometimes new information is inaccurate, incomplete, or even distorted by bias; science is still a very human endeavor, after all. New information must be measured against what we currently believe and then assessed based on the preponderance of the evidence. As the philosopher David Hume said, “A wise man proportions his belief in accordance with the evidence.” We must do the same to avoid wild vacillations or even constant meddlesome tinkering in public policy.
Otherwise, each new data point would result in the tightening or easing of restrictions, throwing society into chaos. No one could plan for the future. Our lives would be in an indefinite holding pattern of a constant oppressive “Wait, there’s more.”
Remember that once we didn’t know how COVID-19 would affect children? We now have a pretty good idea. Alberta’s public schools were shut down on Monday, March 16 out of an abundance of caution. I had already started keeping my kids home from school because at the time, nobody knew the health risks posed to children and to the adults in contact with them. I’ve learned a lot since then.
To date, in Alberta, there has not been a single Covid-19 fatality among individuals under age 20. Might that change? Perhaps. But as data from around the world continues to accumulate, it’s becoming less and less likely. If that were to suddenly change, Albertans would pivot, incorporate the new information, and change our understanding of COVID-19 and the infection it produces. That’s the messy, less than perfect nature of learning new things about the natural world in which we live.
A second reason politicians should not “follow the science” as their Prime Directive is that they have been elected to be representative decision-makers for the public. They must not restrict themselves to the interest of any particular group, but rather must consider the vast panoply of interests represented in the electorate. Our system of government is itself a product of Western culture and social norms. As such, there is something almost evolutionary about the development of our political system and it would be ill-advised to surreptitiously dispense with our institutions.
Since our institutions have been developed over many years by hard times, good times, and through the influence of our climate, culture, and history, they have persisted because they are well-adapted to meet the unique needs of Alberta. I suggest that we must resist the temptation to tear down our institutions to go after COVID-19, because, there will come a time when the pandemic is over when we will wish we had not needlessly destroyed that which has served us so well.
“Follow the science” sounds like a dystopian call to replace the will of our elected politicians with those of their appointed advisers, with politicians merely rubber stamping what’s presented to them. But politicians are responsible to the electorate and will eventually have to stand trial for their deeds in the court of public opinion, if not in an actual court of law. Scientific advisors face no such reckoning. Politicians must lead by the consent of the governed bound by law and custom. Scientists need not. Saying that politicians must always “follow the science” seems like a tacit endorsement of an entirely new system of government where a secret cabal of subject-matter experts manage political puppets without the important counterbalance of public opinion, the law, or custom. This is not the world that I want my children to inherit.
So how should politicians act if “follow the science” is not their Prime Directive? In Alberta, the normative role of a politician is to serve as a representative of the electorate. Politicians should be guided by the advice of subject-matter experts, but they must also weigh other factors outside the expertise of the experts. As the authors of a recent editorial in the British Medical Journal said:
Politicians often claim to follow the science, but that is a misleading oversimplification. Science is rarely absolute. It rarely applies to every setting or every population. It doesn’t make sense to slavishly follow science or evidence. A better approach is for politicians, the publicly appointed decision-makers, to be informed and guided by science when they decide policy for their public.
As representative decision-makers, politicians make decisions on our behalf while considering all factors important to the implementation of any particular policy. They must aim to compassionately balance risks and benefits while considering the whole-health of all individuals within Alberta. This not only includes the current best information about COVID-19, but also factors in our economy, social customs, lifestyle, laws, and the like.
Further, decision-makers must not commit a temporal fallacy by restricting themselves exclusively to the present moment. They must have an eye to the future: what are the five, ten, or twenty-year consequences of any given policy? How will it affect our children’s ability to get an education, find employment, raise a family within our province? Considerations like these are very much outside the expertise of infectious disease advisors.
Instead of slavishly “following the science,” let’s be guided by science. Let’s recognize that scientific knowledge, while extremely important, is not, and should not, be the sole factor considered by our politicians. The proper role of our politicians is much, much broader. They must appropriately balance the whole-health of all Albertans with any steps taken to reduce the harms wrought to us by Covid-19.
Derek From is a constitutional lawyer and guest columnist for the Western Standard
WAGNER: Kenney needs to follow Moe’s lead in putting someone in charge of provincial autonomy file
Michael Wagner writes that Scott Moe’s appointment of an MLA responsible for the autonomy file should be replicated in Alberta.
Shortly after an election that saw surprisingly strong support for the new independence-minded Buffalo Party, Saskatchewan Premier Scott Moe assigned his new legislative secretary the task of exploring how his province could “exercise and strengthen” its powers within Canada. This legislative secretary, MLA Lyle Stewart, explained that “there is more work to do in standing up for Saskatchewan’s interests within Canada.”
Moe has already joined other premiers in launching a legal challenge to Justin Trudeau’s carbon tax, replaced the federally appointment firearms officer with a provincially appointed one, establishing trade offices in Asia, and is discussing provincial control over immigration. The legislative secretary can focus on how to build on these initiatives. Having an official charged with this responsibility sends a message that Saskatchewan is fed up with the status quo and is serious about considering new measures.
Appointing an MLA responsible for exploring provincial autonomy is a good idea and one that should be emulated by Alberta Premier Jason Kenney. Last year he appointed the Fair Deal Panel to gather input from Albertans about their views on how to improve the province’s position within Canada. The panel conducted its work and released its report, which many – including one MLA on the panel – saw as being weak. Appointing an MLA dedicated to working on this file would demonstrate that the premier is serious about addressing the ongoing challenges Alberta faces from the federal government and the prime minister’s hostility to the energy industry.
If he really wanted to up his game, Premier Kenney could borrow ideas from a proposal advanced by retired University of Alberta political scientist Leon Craig. In an August 2019 article for C2C Journal entitled, “Alberta Needs A Minister Of Independence Preparation,” Professor Craig recommended creating an entire government department with the responsibility to develop a plan for an independent Alberta. As he explains, “Since declaring independence would involve major changes in how governmental business is done, it is not a step to be taken without having thoroughly thought through the practical difficulties and prepared accordingly. Thus we need a cabinet minister charged with that responsibility – the Minister of Independence Preparation (MIP).”
Needless to say, that would be a bridge too far for Premier Kenney. However, establishing a ministry, or an agency within an existing ministry, to plan and implement the best recommendations of the Fair Deal Panel (as a starting point) would be a meaningful and effective way to demonstrate that Alberta will no longer passively accept the status quo.
This new ministry could be charged with developing blueprints for establishing an Alberta provincial police force, enacting provincial control of tax collection, and creating an Alberta Pension Plan.
If Trudeau continues to block opportunities for Alberta to develop and export its petroleum products, the ministry could expand its work into developing proposals for an independence referendum and establishing contacts with foreign governments that may be sympathetic to Alberta’s plight. Public information sessions about the process outlined in the Clarity Act could be initiated to create widespread discussions among Albertans about options for the province’s future.
Of course, whether Premier Kenney was to appoint a legislative secretary for this purpose – or create a ministry – the obvious person for the job would be Cypress-Medicine Hat MLA Drew Barnes. Barnes has distinguished himself as an outspoken advocate for Alberta, more so than any other sitting MLA.
Unfortunately, it’s unlikely that any such position or ministry will be established in the near future. Were he to do so, Premier Kenney could show he is serious about changing Alberta’s relationship with the rest of Canada, fire up his increasingly disenchanted base, put meaningful pressure on Justin Trudeau, and drive the NDP into apoplectic summersaults. That sounds like a winning combination to me.
Michael Wagner is a columnist for the Western Standard. He has a PhD in political science from the University of Alberta. His books include ‘Alberta: Separatism Then and Now’ and ‘True Right: Genuine Conservative Leaders of Western Canada.’
LETTER: Trump is undermining democracy
A reader says that Trump intentionally lies to destabilize and undermine the people’s trust in their public institutions.
Trump has a lot of media savvy, and his strategy is to continue to engage and manipulate the media, to make sure the cameras are on him – not Biden.
He does that by constantly baiting the media with all kinds of lies and claims a hungry media readily responds to like he was throwing them small chunks of political ‘raw meat’ because he knows the media will respond by promoting, speculating, and arguing credibilities and probabilities for days, sometimes weeks, depending on how ‘juicy’ it is, and he will continue to scream – ‘I never lost’ – till he is a shadow on the horizon:
He will forever insist he won the election while insisting Biden is stealing it.
He will continue to scream fraud and fake till he dies.
He will continue to feed the media and the public misinformation to destabilize and undermine the people’s trust in their public institutions, including the democratic process.
He is a very sick boy.
CATHCART: Know your rights on mandatory facemasks
“In short, the local municipal governments are on shaky legal ground in imposing mask by-laws. Businesses in mandatory-mask municipalities are only enforcing what they are told to do, and businesses that voluntarily impose mask requirements have a right to do so as private, non-government entities, with several “human rights” caveats.”
Anyone who has left their house in recent months knows that the rules on mandatory face masks are hardly uniform. In some places there are no masking requirements at all. Some stores insist on masks, some do not.
Only in situations where the requirement to wear a mask is forced on an individual by a government body, or by a government order or law, does the Canadian Charter of Rights and Freedoms apply. That is, if a business is not required by government to enforce the wearing of facemasks – but does require them of their own accord – the Charter does not apply.
A store doesn’t have to follow the Charter, they aren’t the government. However, they are required by law to comply with the applicable provincial human rights code. Businesses and private companies are legally allowed to require that employees, customers, clients, or visitors to their premises wear face masks. Stores and companies have a general right to refuse service to anyone, provided that they still comply with human rights legislation. Businesses cannot discriminate based on grounds like race, religion, creed, physical disability, mental disability, etc.
If someone is unable to wear a mask because of a mental disability, such as claustrophobia, a business would be engaging in illegal discrimination if it denied services to such a person for not wearing a mask, and did not provide some form of reasonable accommodation.
A requirement to wear a mask as a condition of employment, or as a condition to receive a service, may be discriminatory toward people with exemptions. If a business denies such a person service or employment because they refuse to wear a mask, that denial may form a legally valid basis for a human rights complaint.
Some people refuse to wear a mask for religious reasons. Other people cannot or should not wear masks because of various medical and health conditions. Many of the municipal bylaws are worded broadly enough to exempt those with “health concerns” or ” health conditions”, including mental conditions like claustrophobia. Laws must not disproportionately punish the vulnerable who are unable to wear masks.
There are jurisdictional questions regarding mask bylaws, as well. Cities have no inherent jurisdiction to enact laws because they are entirely creatures of statute: their power is delegated from provinces through legislation. If a province has chosen not to enact mandatory masking requirements, then what empowers a municipality to do so? The answer may well be “nothing”.
Despite the poor drafting of mask bylaws and jurisdictional and constitutional issues, a legal challenge to them is not guaranteed to be successful. Hard data now demonstrates that the virus has a survivability rate of 99.98 per cent, but the mask requirements remain.
If a store or service accommodates non-mask wearers with curbside pickup, online shopping, or some other alternative, a provincial human rights commission would likely rule that sufficient accommodation has been provided.
An individual is typically not required to disclose his medical condition to any store, service, restaurant or facility, provide proof of exemption, or discuss religious beliefs. Individuals are not required to prove that they have a mask exemption.
If asked to wear a mask, you can reply, “I can’t wear a mask.” A store or company can ask if you have a doctor’s note due to ignorance of the law, however, you are under no legal obligation to provide a note, discuss your medical condition, or get into detail about why you cannot or will not wear a mask. The exception to this is if you file a Human Rights Complaint. You are likely going to be required to provide proof as part of the complaint process.
The mask exemption cards that are circulating on the internet are merely symbolic. While some stores may accept them because they look like an “official” piece of paper, they have no legal weight.
Legally, the question of mask bylaws remains circumstance-dependent and uncertain. Scientists and doctors disagree on the benefits of masks to prevent the spread of COVID-19. Ultimately, the constitutionality of requirements to compel non-medical masks can only be determined by a court after it considers all factors, including the fundamental rights of liberty, security of person, freedom to make ones’ own medical decisions, and the right to control ones’ own body and bodily integrity.
Some insist that masks are like seatbelts, and since the government requires seat belt use as a precaution, it also ought to require mask use. The comparison between face-masks and seatbelts is a poor one, however. Seatbelts are extensively standardized, factory- and crash-tested and customized for each age group, weight, model of car, etc. Non-medical masks and fabric masks are not tested, standardized or even customized, and there are zero studies on the safety of masks for children, or long-term wearing of masks for eight hours or more a day, seven days a week. Further, seatbelts do not interfere with an individual’s breathing, or cover one’s face, which is a fundamental and personal part of existence, and also involves the most visible part of human identity.
No one can physically force you to cover your face in a free country, however you may have to shop in stores that welcome all customers regardless of disability or condition. Stores may choose to enforce the mask bylaw on their premises, but customers will likewise choose not to spend their hard-earned money in that store. In this economy, can stores afford to turn away customers?
Importantly, medical offices, hospitals, and nursing homes are the most difficult places to exercise a mask exemption. These are places full of sick people, where the risk of catching any kind of cold, flu or virus is high and can result in death. However, Alberta Health Services produced a COVID information instruction sheet which clearly stated: “No patient shall be denied service in AHS because they cannot or will not wear a mask.” This has since been removed from the original website.
In short, the local municipal governments are on shaky legal ground in imposing mask by-laws. Businesses in mandatory-mask municipalities are only enforcing what they are told to do, and businesses that voluntarily impose mask requirements have a right to do so as private, non-government entities, with several “human rights” caveats.
Know your rights.
Marnie Cathcart was a reporter and journalist for more than 15 years and is Director of Communications at the Justice Centre for Constitutional Freedoms
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