'We must turn the page': Alberta premier explores blocking future school mask mandates

Alberta's premier says she will "not permit any further masking mandates of children" in schools following a court ruling on the government's decision to drop and block those mandates.

Earlier this week, the Alberta Court of King's Bench ruled that the government's decision to block school boards from imposing their own mask mandates after provincial ones were dropped "was made for improper purposes."

Justice G.S. Dunlop presided over the case, noting that while Chief Medical Officer of Health Dr. Deena Hinshaw issued the public health order, it was merely implementing "a decision of cabinet" rather than being her own decision.

Decisions on public health orders are required to be made by the province's top doctor, Dunlop said.

On Saturday, Premier Danielle Smith released a statement saying she directed the justice minister to assess whether an appeal on Thursday's decision is appropriate.

"(I) have instructed our government’s ministers of justice, health and education to alert me to any legislative or regulatory changes that may be necessary to reaffirm or clarify our government’s full authority with respect to this and other health and education matters," said Smith.

"The detrimental effects of masking on the mental health, development and education of children in classroom settings is well understood, and we must turn the page on what has been an extremely difficult time for children, along with their parents and teachers."

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EXPECT A REGULATION OR LEGISLATION CHANGE

A legal challenge of the decision is unlikely to happen, an assistant law professor told CTV News Edmonton.

"It's clear from Justice Dunlop's ruling that she's able to limit masking in schools without appealing," said Lorian Hardcastle, from the University of Calgary. "I think it's likely she's just going to pass the necessary regulations."

"The other reason I don't think she would want to appeal this case is because the government succeeded on the Charter issue, and if this case is reopened, then so too is the argument that not having masking in schools is discriminatory against children who have health conditions that make COVID particularly risky for them," Hardcastle said.

Hardcastle believes the province will draft a new government regulation, which can be created by the issuing ministry and would not have to pass three readings like a new bill.

"Within the Education Act, it's clear that school boards have the authority to implement policies to protect the safety and health of children and of their staff," she added. "But there is space within that legislation for the minister of education to implement a regulation that limits the ability of schools to regulate on this issue."

Another option, Hardcastle says, is the minister of health examining looking at the current rules governing public health orders to limit the power of the chief medical officer of health or so they do not have the final say.

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'LEAVE ROOM FOR OTHERS TO ALSO MAKE DECISIONS'

While Smith believes masks have detrimental impacts on children, Hardcastle disagrees.

"That has to be balanced against the detrimental effect of children getting COVID," she said.

For a government claiming it wants to reduce the amount of red tape, Hardcastle says creating further regulations would add to government bureaucracy. That could be harmful, she adds, especially since situations involving public health can be fluid around the province and require the assistance of multiple authorities.

"Schools know their populations. Schools have very different risks. So one school board might have very different COVID rates in schools and in the community than another," Hardcastle said. "So I think the government needs to leave room for others to also make decisions or, at the very least, to collaborate." 

The president of the Alberta Teachers' Association agreed that the government should be working with schools to help protect students and staff.

“Ideally, the Chief Medical Officer of Health, government officials and school boards should be taking this time to identify and implement measures, such as enhanced ventilation and promotion of mass vaccination, to prepare for the arrival of the next variant of COVID-19 and other potential infectious diseases," said Jason Schilling in a statement Sunday.

“As we have seen, Minister of Education LaGrange has overstepped her authority in previous masking decisions and, unless some reflection takes place, mistakes will be repeated," he added.

“Going forward, it is irresponsible to take off the table any protective measure that might allow schools to remain open safely and limit the spread of disease in the larger community. This includes, potentially, mandating the wearing of masks."

CTV News Edmonton reached out to Smith for further comment.

'SHE IS GOING TO BE THE DECIDER'

The ruling was praised by the Alberta Federation of Labour's president, Gil McGowan. Now that the province plans to step around it, McGowan says all Albertans should be concerned.

"The judge was very clear that the decision maker when it comes to public health is the chief medical officer of health," he said. "The court made it clear she decides."

The AFL initiated the court challenge to protect the health and safety of children and frontline workers during the pandemic that is still ongoing, McGowan said in a Saturday interview.

"Public health rules should be set by public health authorities and not by politicians who either have a political agenda or who are driven by ideology," McGowan said. "I think most Albertans would agree that's the right decision to make when people's health and their lives even are on the line."

The premier deciding to change that arrangement will have massive implications for public health and workplace safety, McGowan says.

"Decisions should be made based on the best science by the people with the best experience," he added. "What the premier is saying today is that none of that matters. The court ruling doesn't matter; the law doesn't matter.

"She is going to be the decider, and she is going to make decisions on public health based on her opinions and her ideology."

With files from CTV News Edmonton's Jessica Robb and Evan Kenny