The Manning Report and the former SCC judge

Last month Alberta saw the release of the final report of its Public Health Emergencies Governance Review Panel, appointed by the government and headed by former politicians and anti-public health figure Preston Manning. The report’s contents were predictable precisely because Manning had already been outspoken about what he would like to see change well before he was ever appointed to head the panel.

As colleague Lisa Young rightly notes, the Report carries the dubious distinction of virtually ignoring those who suffered from the negative public health impacts of the public health emergency it was supposedly meant to be analyzing:

Nowhere in the report is sympathy expressed for the thousands of Albertans who have died of COVID, or those who mourn them. Nowhere in the report do we read about the experiences of health care workers, teachers and other front-line workers who have been disabled by long COVID. Those Albertans don’t even warrant a mention in the 114 page report.

The only Albertans deserving of empathy, or a public policy response, according to the report, are those who felt their freedoms were unduly restricted. A search for the words “dead,” “deaths” and “fatalities” yields six mentions. A search for the word “freedom” finds 262.

I should be clear the report does make at least a handful of useful recommendations. Perhaps topping that list is ensuring clarity on who is responsible for public health decisions: the panel pushes for legislative changes to ensure elected officials - principally the cabinet - approves any and all advice of public health officials. The virtue of this is not that elected officials will make the right decisions (hahaha) but that they will not be able to hide behind public health officers who proved unable to be transparent about who was actually making decisions during the pandemic.

So in the face of many governments’ appalling pandemic failures - not acting quickly enough in the face of successive waves, lifting mitigation measures too soon after failing to implement them soon enough, etc. - Premiers like Kenney and Ford hid behind their chief medical officers decisions, all while the public was not told precisely what advice was being followed, or who was ultimately making decisions. We did not know whether the public health officers were failing to protect the vulnerable by actually serving as the decision-makers (and were thus dangerously incompetent) or whether they were being constrained by lying elected officials. The inability of these public health officials to act on principle and speak the truth - resigning if necessary to inform the public they were not being listened to - only compounded the problem.

But beyond that, really, the report is an anti-public health embarrassment, emphasizing the need for enhanced “freedoms” through amendments to Alberta’s human rights law against imaginary rights infringements rather than engaging in any consideration of how we might better protect public health in the future. I should say, of course, it is not that freedoms were not limited by certain pandemic mitigation efforts but that they were “reasonably” limited in the context, something that virtually every court and human rights tribunal across the country concluded when confronted with a legal challenge or complaint about the restrictions. The only manifestly unreasonable restrictions that I can think of during the pandemic were either downright silly rules (Quebec briefly introduced a curfew - people couldn’t even take their dogs for a walk late in the evenings) or excessive limits at a time when too many officials were still emphasizing spread through contact rather than air-based transmission, like the unnecessary closure of outdoor playgrounds.

The real targets of the Report are policies like vaccines mandates and school closures. The vaccines saved literally millions of lives, and while some argue mandates were only marginally effective, doing the math on those margins still means thousands of lives saved in Canada alone. School closures were also effective - there is ample evidence that schools became a key driver of COVID transmission during pandemic (THEY STILL ARE!). The problem with school closures is that they were unnecessarily long because they were often 1) implemented too late in the face of a new wave of the pandemic, and 2) because provincial governments across Canada failed to properly invest in clean air infrastructure (many school boards here in Ontario are literally banning HEPA filters, or even their donation, because it is ‘too expensive’ to maintain them).

Had the Report bothered with an actual analysis about the harms being mitigated by school closures and other ways to mitigate transmission to ensure school closures are minimized in the next pandemic, that’d be one thing. But its emphasize on absolutist conceptions “freedom” that fail to consider the basic tenet that your freedom ends where other people’s freedom begins (including the freedom to not be infected with a dangerous virus), the increasingly overstated negative impacts on student learning or the supposed injustice of health workers having to receive extremely safe vaccines to keep their jobs reveal this to be nothing more than an ideological garbage fire of a report.

Which makes it all the more problematic that former Supreme Court Justice John C. Major was a panel member on the report. I have already written about the problem of retired SCC justices’ involvement in political affairs or their use by governments to stamp legitimacy on their dubious activities and policies. Prof. Amy Salyszn has explored this issue as well, as has Mark Mancini.

Given the appalling and fundamentally anti-public health nature of the report - it is no less than an attack on doing much of anything to meaningfully react to deadly pandemics - this is a particularly ugly example. It is nothing but cover for an anti-public health Premier, something she set up knowing full well what the end product would look like (Manning is not the only member of the panel to have previously expressed idiotic views about pandemic restrictions, including those that parroted dangerous nonsense about ‘natural immunity’).

At the very least, perhaps this example will serve to undermine the legitimacy-lending purpose of involving retired Supreme Court justices in these types of government-run ideological/partisan exercises, because it’s hard to imaging anything that could be much more damaging to that legitimacy than this.