Sunday, October 03, 2021

When the world actually solved an environmental crisis

If you haven’t heard about the ozone hole in years, that’s because scientists did a pretty good job saving us from ourselves.

By Kelsey Piper Oct 3, 2021,
VOX
In 2006, the Antarctic ozone hole was equal to the record single-day largest area of 11.4 million square miles reached on September 9, 2000.
 Universal History Archive/Universal Images Group via Getty Images


In 1985, atmospheric scientists in Antarctica noticed something troubling. For decades, they’d been measuring the thickness of the ozone layer in the upper atmosphere, the layer of gas that deflects much of the sun’s radiation. Starting in the 1970s, it had started plummeting. By the mid-1980s, they observed that it was on track to be wiped out in the next few decades.

Their discovery was cause for worldwide alarm and unprecedented action. In short order, the international community marshaled its resources — scientific, economic, diplomatic — to mount a campaign to ban the chemical that caused the damage, chlorofluorocarbons (CFCs), and to restore the ozone layer.

Fast-forward to today: The ozone is on the path to recovery, if not fully restored. That progress hasn’t been without setbacks. The ozone hole is shrinking on average, but some years are bad ones — the hole was notably larger in 2020, following a 2019 when it was unusually small. Researchers have also raised suspicions that the rate at which atmospheric CFCs are falling suggests not all signatories to a treaty banning new production of CFCs are abiding by the agreement. And there have been unintended consequences in phasing out CFCs with a different chemical that has hurt our fight against climate change (more on this below).

But the damage we wrought last century has been reversed. Even with the complications and caveats, the world’s response to the ozone crisis should be seen as an instructive, even inspiring, success story — one that can perhaps inform our response to the climate crisis.

That’s the thrust of this year’s Future of Life Award from the Future of Life Institute, a nonprofit that studies how to reduce risks to our world. The 2021 award, handed out last month, went to three people who played a significant role in our triumph over the depletion of the ozone layer: atmospheric chemist Susan Solomon, geophysicist Joseph Farman, and Environmental Protection Agency official Stephen Andersen.

The award, which comes with a $50,000 prize for each recipient, is given to unsung heroes who made our world safer from existential or global catastrophic risks. Last year, the institute gave its award to William Foege and Viktor Zhdanov, who played key roles in the smallpox eradication fight. The previous year, it went to Matthew Meselson for his work on the Biological Weapons Convention.

This year’s award harks back to a crisis that unnerved — and galvanized — humanity in the 1980s and ’90s. The ozone layer reduces how much radiation makes it to the surface of the Earth. Without it, sunshine would be significantly deadlier to life on the planet. The primary culprit for its thinning, researchers discovered, was CFCs, a chemical compound that was present in everything from aerosol cans to refrigerators to solvents. As CFCs degrade in the upper atmosphere, they can break down ozone.

Aqua Net, a beloved 1980s hairspray brand, was one of the products that was correlated to the ozone hole because of chlorofluorocarbons, or CFCs, a chemical compound that was present in everything from aerosol cans to refrigerators. Aqua Net mousse Commercial

“Projections suggested that the ozone layer would collapse by 2050,” the Future of Life Institute’s Georgiana Gilgallon told me. “We’d have collapsing ecosystems, agriculture, genetic defects.” The sudden plunge in atmospheric ozone heralded a coming disaster.

But the world responded. With consumer boycotts, political action, a major international treaty called the Montreal Protocol, and a huge investment in new technologies to replace CFCs in all their commercial and industrial uses, new CFC production was brought effectively to a halt over the 1990s and early 2000s. It took a while to phase out existing devices that used CFCs, but CFC emissions have been steadily falling since the protocol went into effect.

“We see this as potentially the first instance in which humanity recognized and addressed a global catastrophic risk,” Gilgallon told me. There is still much to be done and some new problems to contend with, but measurements from the present day make it clear that the process of healing the ozone layer is well underway.

The ozone “hole,” explained

Ozone is a molecule made up of three oxygen atoms. (The oxygen we breathe is made up of just two.) There’s not much ozone floating around in the layer of atmosphere that we breathe — a good thing, since it’s actually a lung irritant and linked with respiratory disease.

But there’s a lot of it in the stratosphere (comparatively speaking, at least; it’s still only a tiny fraction of the overall air). It’s that layer of ozone that absorbs ultraviolet (UV) radiation, especially the specific wavelengths called UV-B.

UV-B radiation is what causes sunburns, and in high concentrations it causes more problems than that. It can lead to many kinds of cancer by damaging our DNA; most plants and animals also suffer when growing in a high-UV-radiation environment.

In the 1970s, researchers noticed that the ozone layer had started thinning, especially around the poles. (With the ozone layer constituting only about three in a million atoms in the stratosphere in the first place, “hole” is technically a misnomer — the “ozone hole” was really just an area where ozone levels had dropped by more than 30 percent in a decade.)

By the time the thinning of the ozone layer was measured, researchers Mario Molina and Sherry Rowland had already established the probable cause: CFCs.

CFCs were everywhere, and as far as everyone knew, they were the perfect chemical: nonreactive, cheap, and highly effective in a wide variety of manufacturing applications. They were building up in the atmosphere, but it was thought that since they were nonreactive, it couldn’t be a problem.

Molina and Rowland realized that that assumption was wrong. There’s a (possibly apocryphal) story of Rowland’s wife asking him how his work was going, and Rowland responding, “Well, the work is fantastic, but I think the Earth is ending.”

The problem was that CFCs break down in the upper atmosphere. And the chlorine in CFCs was actually reactive, binding with ozone to make oxygen and chlorine monoxide.

Molina and Rowland’s 1974 paper in Nature laying out the problem prompted discussion and debate, and environmental activists started pushing for change. But it didn’t move governments to coordinated international action. At the time, the exact implications of Molina and Rowland’s theory were hotly contested. Many researchers believed that ozone depletion would be a problem only on a time scale of centuries. There were some early worrying measurements that were dismissed as flukes.

What the measurements in the Antarctic taken a decade later showed definitively is that it was happening much, much faster than that. “Sometime around the late ’70s, it started dropping like a rock — [there] was more ozone depletion than Molina and Rowland had ever imagined,” Solomon said.
From diagnosis to global action

The fight in the 1980s against the depletion of the ozone layer had several stages that might seem familiar to those trying to unite the world to combat other problems.

First, there was the challenge of determining that there was in fact a threat and that CFCs were the cause. The initial work there was done by Molina and Rowland. But from the 1985 measurements taken by Joseph Farman — a geophysicist at the British Antarctic Survey — and his colleagues, it looked like the ozone layer was vanishing much faster than their models predicted.

Susan Solomon was the lead researcher on the team that figured out how the chlorine from CFCs was breaking down so much ozone. In 1986 and 1987, she led the National Ozone Expedition to Antarctica to collect the evidence that would confirm her theory. Scientists had originally thought that, while chlorine would interact with ozone, the process was naturally limited — after all, there weren’t that many atoms of chlorine loose.

Solomon and her team claimed that the process by which chlorine broke down ozone actually wasn’t as limited as initially thought and that the ozone breakdown could quickly spiral out of control: The chlorine monoxide that formed from chlorine’s interaction with ozone would then break down, releasing the chlorine atom to go break down more ozone.

“You can destroy hundreds of thousands of ozone molecules with one chlorine atom from a CFC molecule in the timescale that this stuff is in the stratosphere,” Solomon said.

The next stage of the fight was then convincing the world to do something about the problem. In 1986, UN negotiations began on a treaty to ban substances that reacted with ozone in the upper atmosphere, mainly CFCs. Stephen Andersen, at the time an official in the US Environmental Protection Agency, was a major figure in the negotiations. “He really made it happen,” the Future of Life Institute program director David Nicholson says

.
MIT Professor Mario Molina, left, with his wife, chemist Luisa Molina, after winning the Nobel Prize for Chemistry for his research on the effects of man-made chemicals on the ozone layer. Molina was a co-recipient along with Frank “Sherry” Rowland. AFP via Getty Images

The Montreal Protocol on Substances that Deplete the Ozone Layer was agreed upon and opened for signature in 1987. It went into force in 1989. Countries gradually began phasing out CFCs. Andersen’s team, Nicholson says, “systematically identified hundreds of solutions for phasing out CFCs from hundreds of industry sectors,” making it possible to shift manufacturing processes worldwide to chemicals that weren’t ozone-depleting.

Those chemicals in some cases have presented their own problems. For refrigerants, the world shifted to hydrofluorocarbons (HFCs), which endanger the ozone layer much less. Like the CFCs they replaced, though, HFCs are potent greenhouse gases — thousands of times more effective than carbon dioxide at trapping heat in our atmosphere. Twenty years ago, HFCs were an environmental step forward, allowing us to phase out CFCs. Today, policymakers and scientists are trying to phase out HFCs as well. Human ingenuity can solve our problems, but it can also create new ones as it does.

But in terms of the primary goal — healing the ozone layer — the worldwide effort was a huge success. CFC consumption declined from over 800,000 metric tons in the 1980s to an estimated 156 metric tons in 2014. Experts estimate that by 2050, the ozone layer will be back to the state it was in 1980.

Falling consumption of CFCs (blue) and other ozone-depleting substances, which were also restricted by the Montreal Protocol in a worldwide effort to save the ozone layer. Our World In Data

And keeping the ozone intact buys us time in the fight against climate change. Yes, HFCs are a potent greenhouse gas. But CFCs contributed to global warming as well: They were powerful greenhouse gases in their own right, and by destroying the ozone layer, they contributed to warming by allowing more energy to reach the planet’s surface. One study found that ozone-depleting chemicals drove half of Arctic warming in the 20th century.

With that said, HFCs are still a big climate problem. In recent years, governments have been working to extend the hugely successful Montreal Protocol to phase them out too. It’s fair to say that, in some ways, the global fight against the ozone crisis was a complicated story, one that continues to be written.

But in other ways, it does offer some bracing clarity. The sheer speed with which the world went to work and enacted a global treaty to address a pressing environmental problem is, to contemporary eyes, downright bewildering. To a public accustomed to decades-long stalemates over climate policy, hearing how countries quickly lined up to sign an accord to save the planet may feel almost like a rebuke of our failures.

In many ways, the international community of the 1980s had an easier problem. CFCs were industrially useful, but there were substitutes; cost-effective substitutes for fossil fuels are coming into production now, decades into the climate crisis, but they certainly didn’t exist when we first started addressing it.

Politicians were more united in addressing the ozone layer than they’ve proven in addressing climate change. The Senate ratified the Montreal Protocol 83–0. Margaret Thatcher, not generally known for her friendliness to regulation, was a leader in the push for the Montreal Protocol and the effort to enable compliance by poor countries.

By contrast, politicians today (especially in the US) are fiercely divided over the proper government role in ending climate change, and the public is divided along partisan lines as well.

The picture we’re left with by the fight to heal the ozone layer is that specific individuals played a huge role in changing humanity’s trajectory but they did that mostly by enabling public activism, international diplomacy, and collective action. In the fight to improve the world, we can’t do without individuals and we can’t do without coordination mechanisms. But we should keep in mind how much we can do when we have both.
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Saskatoon

Advocates shocked by Catholic list claiming $28M of 'in-kind' help for residential school survivors

CBC News obtained Catholic log claiming bible study, parish

 staffing as part of compensation


Jason Warick · CBC News · 
CBC News has obtained a ledger revealing details of the Catholic Church's $25-million worth of in-kind compensation to residential school survivors. Critics say many items are designed to convert Indigenous people rather than allow them to restore their own culture and spirituality. (Gerald Herbert/The Associated Press)

Questions are being raised about the Catholic Church's claim it provided $28 million worth of "in-kind" compensation to residential school survivors.

CBC News has obtained the log detailing the in-kind claims for dozens of Canadian Catholic entities party to the landmark 2005 Indian Residential School Settlement Agreement (IRSSA).

Survivors and advocates interviewed say they're shocked, as many of the listed services are nothing more than attempts to evangelize and convert Indigenous people.

The list includes bible-study programs, placement of priests and nuns in remote northern communities, services under the frequently used label of "religiosity" and religious-document translation.

"It's distressing to see this. This is ordinary church religious work repackaged as in-kind services and reconciliation. This is not legitimate," said Mary Ellen Turpel-Lafond, a former judge and director of the University of British Columbia's Indian Residential School History and Dialogue Centre.

Some of the items include several hundred thousands of dollars for an Ottawa scholarship program for Indigenous students and support for a Regina drop-in centre for mainly Indigenous women and children.

Mary Ellen Turpel-Lafond, a former Saskatchewan provincial court judge and director of UBC's Indian Residential School History and Dialogue Centre, said the vast majority of $25 million claimed by the Catholic Church as an in-kind service to survivors is 'not legitimate.' (Mike McArthur/CBC)

But Turpel-Lafond and others say millions more are questionable and some contradict the spirit of reconciliation. The following contributions are among those made between 2007 and 2010, according to the log:

  • $696,000, by the Roman Catholic Diocese of Mackenzie-Fort Smith, for community work and presence in the Northwest Territories by religious sisters and fathers.
  • $600,000, by the Roman Catholic Episcopal Corporation of James Bay, for community work and presence by persons ministering in three communities in northern Ontario, in addition to work that can be classified as "religiosity."
  • $540,000, by the Sisters of Instruction of the Child Jesus, for community work and presence in First Nations reserves and urban environments in Manitoba, Saskatchewan and B.C. by religious sisters. A variety of services was offered in addition to work that can be classified as "religiosity."
  • $465,150, by Les Oeuvres Oblates de l'Ontario, for community work and presence by pastors.
  • $360,000, by Les Résidences Oblates de Québec, for translation of Jewish and Christian scriptures into Innu.
  • $263,900, by the Missionary Oblates of Grandin, for a biblical studies program in Alberta; university courses offered by a team that explore culture and faith, God's love, social justice, women in scripture, sexuality, hope, healing, etc.
  • $256,800, by OMI St. Peter's Province, for community work and presence in two Mi'kmaq communities in Nova Scotia by a pastor and one assistant.

When asked for comment, Regina-based lawyer James Ehmann, who has represented various Catholic entities in court matters over the years, said he can no longer speak for them. The corporation formed by the churches to oversee the 2005 deal has since been dissolved.

Ehmann noted in an email that the Catholic Church's claims were evaluated by a committee that included members from Catholic entities, the federal government and the Assembly of First Nations. It's unclear whether that committee approved the items in the document obtained by CBC News.

Sturgeon Lake Cree Nation elder A.J. Felix says the Catholic Church and other groups should disclose every document in their possession related to the residential school system immediately. He says Indigenous people should be given the resources to heal themselves. (Jason Warick/CBC)

Residential school survivor and Sturgeon Lake Cree Nation Elder A.J. Felix said these claims should have been flagged and rejected — and Catholic officials should have known it was wrong to even make them.

"Because of the misery that we had, the hardship that we had, the violence that we experienced, the sadness and the deaths that we went through, somebody has to be accountable," Felix said.

The in-kind services were one of three promises made by the Catholic Church entities in the IRSSA. They also promised to give "best efforts" to raise $25 million for support programs, though stopped after raising less than $4 million, and they promised to contribute a lump $29-million cash payment, but came up millions short.

Previously obtained documents detailed millions spent on lawyers, administration and other unapproved expenses.

The Church has repeatedly declined to provide details of the $25-million promise of in-kind services, other than to state publicly that the amount was exceeded.

Earlier this week, bishops from across Canada issued an apology to residential school survivors and promised a renewed $30-million fundraising campaign to provide support programs and other initiatives.

Felix, Turpel-Lafond and others say while it appeared the Catholic Church was taking some steps forward, the latest revelations show the truth is still being hidden — and those gestures are not enough.

"We've had apologies before. If it took money to destroy us, to destroy our way of life, it's going to take money to rebuild what we've lost. Our plan is to regain what we lost," Felix said.

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 Calgary·Analysis

The Charter of Rights and Freedoms vs. vaccine mandates — and government inaction on COVID

A look at how some sections of the charter might hold up in

 court

Hannah Kost · CBC News · 
While leading Alberta's response to the COVID-19 pandemic, Premier Jason Kenney has encountered opposition, including protestors claiming their freedoms have been violated. (Jason Franson, Todd Korol)

Many who oppose COVID vaccine passports adamantly insist such programs infringe upon rights and freedoms — often citing the Charter of Rights and Freedoms.

It has been mentioned again and again, in Alberta and across the country, as protestors opposed to vaccine passports yelled abuse at health-care workers in front of hospitals, marched in the streets by the thousands, likened mandates to the horrors suffered by Jewish victims of the Holocaust, and harassed staff at participating businesses until some temporarily closed.

But they'd likely face tough odds if they tried to use the charter to challenge vaccine passports — except, perhaps, in rare and specific circumstances, some legal experts say.

Meanwhile, governments that delayed passports and stricter health measures to keep from infringing upon our rights may be vulnerable to possible — albeit improbable — challenges that inaction on COVID-19 violated those rights, instead.

Here's a look at how the charter might help or hinder legal arguments for both sides of the debate.

The Charter of Rights and Freedoms

The Charter of Rights and Freedoms — heavily promoted by then-Prime Minister Pierre Trudeau — was eventually entrenched into the Canadian Constitution in 1982, and protects many rights and civil liberties.

But there's a common misunderstanding of how the charter works, says Carissima Mathen, a professor of law at the University of Ottawa who specializes in the Constitution.

The charter does not apply to everything that happens in Canada.

It applies only to governments, their agents and their laws.

Canada reached a historic milestone Nov. 5, 1981, with Prime Minister Pierre Trudeau and every province but Quebec agreeing on ways to give the nation an independent constitution embracing a charter of rights and an amending formula. (Ron Poling/The Canadian Press)

"[The charter] is a way to hold the state accountable for laws and decisions that may be oppressive," Mathen said.

This means charter challenges to a vaccine mandate could apply only if that mandate was implemented by the state, and only government employees can bring charter challenges directly against their employers.

In other words, if a business required employees to get vaccinated because it was following a government rule, the employees couldn't challenge the company directly under the charter — they'd have to go after the government for its policy.

But this stipulation has not stopped the charter from being cited, at times indiscriminately, by protestors. And some sections come up more often than others.

Life, liberty and security of the person

The charter's Section 7 has been heavily referenced by some in their challenge against vaccine mandates.

It protects the right to life, liberty and security of the person.

However, it includes a critical, and seemingly overlooked, limitation.

A valid claim under Section 7 can be made only if it can be proven that the life, liberty or security of the person was violated in a way that contravenes principles of fundamental justice, says Jennifer Koshan, a professor in the faculty of law at the University of Calgary.

"If a person was going to try to make a claim that a vaccine passport violated their freedom, violated their liberty, they would have to show that that was done in a way that was arbitrary, or that went too far," Koshan said.

With the charter's application to the state in mind, how would Section 7 fare against vaccine mandates?

Let's look at some examples in Alberta.

Proof of vaccination in Alberta

The UCP government's restrictions exemption program began Sept. 20. It offers non-essential businesses like restaurants a choice: opt in, ask patrons for proof of vaccination, and duck health restrictions — or opt out, and adhere to measures such as capacity limits and curfews.

The City of Calgary, on the other hand, implemented its own vaccine passport bylaw on Sept. 23 that legally requires non-essential businesses to ask patrons for proof of vaccination.

'A lot of businesses felt that leaving it up to them, making it sound like they were the ones making the decision, was leaving them open to belligerent and angry people. Now they can say it's a city bylaw, they have no choice,' Calgary Mayor Naheed Nenshi said about the bylaw. (Mike Symington/CBC)

In these instances, patrons of businesses enforcing mandates could argue their liberty is being infringed upon by the government policies under the charter — but it would be unlikely to amount to a violation of the principles of fundamental justice, Koshan says.

If mandates do not require that the employees of participating businesses be vaccinated — such as those under Alberta's restrictions exemption program and Calgary's vaccine passport bylaw — there is nothing for staff to challenge under the charter.

And if a private employer were to independently opt to require its employees to be vaccinated, it would not be an action taken by the state — and so the charter would not apply there, either.

Coercion and occupation

Challenges that would be more viable under the charter could be levied at government employers such as Alberta Health Services and the City of Calgary, which have mandated employees be fully vaccinated by Oct. 31, 2021.

But as with all vaccine mandates in Canada, these employees aren't being forced to get the jab — they are still being presented with a choice.

They can choose to work somewhere else.

"The question would be whether that's still a form of coercion, even if it's indirect," Mathen said.

"You might be able to get over that hurdle and show that the state is putting pressure on you to make a certain kind of decision."

Images of purported firefighters and police officers linking arms outside of City Hall circulated online after an anti-vaccination demonstration on Sept. 7. Fire Chief Steve Dongworth later said the department was 'completely embarrassed and ashamed.' (@JaneQCitizen/Twitter)

But under Section 7 alone, Mathen says, this would still likely not be enough for vaccine-mandated employees to be successful.

The courts have been very clear that it does not include a right to a specific occupation, she said.

"You'd have to make a broader argument that is unrelated to the mere fact that you want to work in a particular place," Mathen said.

"The one other possible right I would see that as being most implicated by a vaccine mandate could be an equality argument."

Equality rights under the charter

The equality rights protected under the charter's Section 15 emphasize the right to be free of discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In order to argue that your rights under the charter's equality guarantees have been violated, a person would have to show a link between the mandate and one of these personal characteristics, Mathen said.

"It can't just be you're being treated differently from other people because you don't want to get vaccinated," she said.

In Montreal, thousands of people gathered on Aug. 28 protesting public health measures, including the province's vaccination passport system and mandatory vaccines for health-care workers. (Jean-Claude Taliana/CBC)

However, Alberta's restrictions exemption program and Calgary's bylaw both seem to accommodate potential disability challenges by accepting documentation of a medical exemption for vaccines.

"I also think that raising general concerns about equity would be difficult because, you know, [vaccines are] widely available, they're free," Mathen said. 

"The state has made a lot of efforts, I think, to ensure access to the vaccine as much as possible."

But another essential component of the charter would present yet another hurdle to clear.

Even rights and freedoms under Section 15 are not absolute — and are likely to be constrained when pitted against the broader interests of society.

Reasonable limits

The charter's Section 1 states that all of its rights and freedoms are subject to reasonable limits.

Although the charter's purpose is to protect the individual from the majority's wishes in many circumstances, Mathen says this gets analyzed differently when upholding individual charter rights would present a clear risk to public health.

And while people have the right to behave as though COVID isn't a big deal for themselves, Mathen said, they don't have the right to behave as though it isn't a big deal for everyone else.

"In the case of vaccine mandates by state employers, there'd be pretty strong protection for those decisions … given everything we've gone through," Mathen said.

"With all of the evidence we have about the harms of COVID … and the particular challenges posed by [the delta variant], I would think that the balance would probably be on the side of [upholding mandates as] a reasonable limit."

For the fourth day in a row, hundreds gathered outside Calgary's McDougall Centre on Aug. 2 to protest the Alberta government's decision to largely drop health restrictions for COVID-19. (Julie Debeljak/CBC)

Indeed, Alberta is now well-versed in the harms of COVID and challenges of delta. 

The province currently accounts for almost half the active cases in Canada, despite only having about one-tenth of the nation's total population.

And when considering the landscape of COVID in Alberta now — and what led to this point — a different question emerges about the charter and its purpose to hold governments accountable.

The province's COVID inaction

When Alberta dropped virtually all health restrictions on July 1, reported cases of COVID-19 in Alberta soon skyrocketed.

A wave of hospitalizations and delayed surgeries followed. And on Sept. 23, Alberta Health Services CEO Verna Yiu said the reason ICU beds have remained available at all is because each day enough are vacated by the dead.

In fact, it was reported on Sept. 28 that Albertans are dying from COVID-19 at more than three times the average Canadian rate.

As Dr. Deena Hinshaw, Alberta's chief medical officer of health, admitted in a Zoom conference with Primary Care Network Physicians on Sept. 13, the province is in crisis — and it's because the provincial government did not maintain health restrictions that could have kept its citizens safe.

WATCH | Number of ICU patients the highest in the province's history

Dr. Verna Yiu, president and CEO of Alberta Health Services, says there are 310 Albertans in ICU, of which 226 patients have COVID-19. Yiu says it's tragic that they can only keep pace with ICU admissions because some have passed away. 1:18

According to the federal government, under the charter's Section 7, the right to life can be engaged when state action imposes death or an increased risk of death, either directly or indirectly.

Security of the person, meanwhile, can be engaged when state action has the likely effect of seriously impairing a person's physical health.

Could those who became seriously ill during COVID's unfettered fourth wave — or whose surgeries were delayed, or whose family members died — challenge the state under Section 7? 

"That's a very interesting question, and it really gets to the essence of how we perceive our rights and freedoms in Canadian society," Koshan said.

Vriend vs. Alberta

It deviates, Koshan says, from the traditional view that rights and freedoms are there to protect us from government action that could infringe on them.

But sometimes, government inaction can violate rights and freedoms. An example happened in Alberta during the 1990s, when sexual orientation was not protected in human rights legislation.

Back then, if someone was discriminated against on the basis of their sexual orientation — say, fired from their job— they were not able to bring forward a human rights complaint, Koshan says.

WATCH | April 2, 1998: Discrimination based on sexual orientation ruled illegal

After college instructor Delwin Vriend was fired for being gay, he successfully sued the Province of Alberta, a case that set a precedent for sexual orientation rights in Canada. 1:40

"There was a case that went to the Supreme Court of Canada called Vriend in 1998, which decided that in the circumstances of that case, government inaction did amount to a breach of the equality rights of the charter," Koshan said.

The argument this time, Koshan said, could be that the government's inaction resulted in deprivations of security of the person and, in some cases, their right to life.

So, let's lastly review some of the timeline of the government's response to Alberta's fourth wave.

Section 7 and a life-and-death crisis

The province lifted most public health restrictions on July 1, after more than 70 per cent of eligible Albertans received their first dose of vaccine.

Some doctors cautioned at the time that reopening was risky, and the plan had been drafted before the arrival of the highly transmissible delta variant.

By the end of July, health and infectious disease experts began raising the alarm that COVID was already spreading faster in Alberta than at the peak of its third wave.

Hinshaw told the media on Sept. 15 that the government began to realize in early August that its reopening plan — which hinged on the decoupling of COVID cases and hospitalizations — wasn't working.

Yet that realization was followed by a weeks-long disappearance from public pandemic updates by Premier Jason Kenney, then health minister Tyler Shandro and Hinshaw until a collective COVID announcement on Sept. 3 — over a week after new daily cases climbed past 1,000.

Resisting mounting pressure to implement a vaccine passport system, Kenney instead offered unvaccinated Albertans a $100 incentive to get the shot, and reintroduced some mandatory masking restrictions and a liquor curfew. 

Amid a raging fourth wave and looming ICU bed shortages by Sept. 15, Kenney declared a state of public health emergency and announced the restrictions exemption program.

Both the Canadian Medical Association and the Alberta Medical Association issued calls on Sept. 29 for short lockdowns to protect the province's crumbling health-care system.

Though members of the Canadian Armed Forces and Canadian Red Cross will be sent to assist Alberta's hospitals, the government is not currently considering additional health measures, Kenney said Sept. 30.

The Canadian Press's Dean Bennett asked why Kenney still feels he has the luxury of time and isn't giving doctors the lockdown they're asking for.

"The crisis that we are dealing with comes overwhelmingly from the unvaccinated population," Kenney said.

"We need to address that, which is what the current measures seek to do. We will take additional action if it is necessary."

Drawing a link

Like claims against vaccine mandates, pursuing a charter claim against the province would have its challenges.

For one thing, courts have historically been more reluctant to find charter breaches because governments have done too little, rather than too much, Koshan says.

For another, it would have to be proven that the rights protected under Section 7 were violated in a way that contravenes principles of fundamental justice.

"I find it an intriguing argument, but I'm doubtful that the courts would go there," Mathen said.

And a third challenge would likely be an evidentiary one, Koshan said.

"That comes down to a question of whether you would have enough scientific evidence, as well as causal evidence, to draw a link between the inaction and the harms that were ultimately done," she said.

And if that link could be drawn?

"There's certainly some argument to be made," Koshan said, "if governments … aren't taking proper actions to protect their populations."

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