A fundamental difference between Danielle Smith's Bill of Rights and what's come before
Alberta bill, Charter found consensus on liberties. Now, party politics are at play
For a sense of the Alberta government's intended audience for its revised provincial Bill of Rights, let's consider where Albertans first heard of it.
Premier Danielle Smith first revealed it in a series of private, members-only town halls for the United Conservative Party base, months after party members called for these new enshrined rights at a party convention.
The party's activists have called repeatedly for greater protections for the vaccine-resistant and firearms owners and for property rights — all featured in new amendments to Alberta's rights document.
And Smith is fulfilling this summer's pledge to her party members days before this weekend's 2024 UCP convention, where Smith is subject to a leadership review (in which party leaders are historically 0 for 1, thus far).
For her critics, this new piece of legislation is all about avoiding Jason Kenney's fate.
Your right to party
More than 5,600 United Conservatives are registered for the Red Deer gathering, which the party is billing as the "largest political convention ever held in Canada."
Each attendee will reap the protections and effects of this amended rights document, as will a group almost 1,000 times larger than the UCP meeting: all Albertans.
The premier said her government crafted the reforms to "ensure our province remains one of the freest societies" on earth.
"These updates are not only changes that Albertans are asking for, they are changes that ensure that every day, no matter the situation, every one of us can be confident of our rights and freedoms, that they will be protected and supported," she said Tuesday during legislature debate on the bill.
But the Opposition NDP sees it as "virtue signalling" to help boost Smith's leadership review score.
"Although the premier wants us to believe this has something to do with Albertans' rights, no. It's all about this premier, this government's politics," NDP justice critic Irfan Sabir told the assembly.
The partisan environment in which these Bill of Rights revisions land is in striking contrast to how the province's fundamental rights document was first introduced 52 years ago.
It was then-premier Peter Lougheed's first piece of legislation after his Progressive Conservatives took office in 1971. He'd promised a Bill of Rights for Alberta in his election campaign (Smith didn't do so last year), and the rights he introduced were broad-based, for liberty, equality before the law and to guard against discrimination for race, religion, sex or other basic identifiers.
The year Lougheed's rights bill came out coincided with the first year of Hansard transcripts of legislature proceedings, and the Hansard record of the debate over the bill recorded very little fiery speechifying and much agreement about the document the Tory premier had introduced.
"I'm not suggesting for a moment that this bill is going to solve every one of these problems, but this will at least show the people of Alberta, show the people of Canada, show the people of the world where we stand in regard to the major freedoms of the human race," remarked Gordon Taylor, the Drumheller MLA for the Social Credit Opposition.
"And in my view these items make the bill very, very important."
Grant Notley, the lone New Democrat MLA (and father of a future premier), said Lougheed's Bill of Rights marked an advancement for individual liberties: "The bill is a worthwhile document, one which will earn, and rightly so, the support of members from all sides of this house."
The way we were
A decade later, when the Pierre Trudeau government ushered in the Charter of Rights and Freedoms — with many of the same rights as Alberta's document — there were parliamentary arguments about whether property rights should be included, and public discussion about mentioning the supremacy of God, said Eric Adams, a constitutional expert at the University of Alberta.
"But what you have more or less is a consensus around the basic content of rights," he told CBC News.
That's the way it should be when crafting a set of rights that go into a province or country's basic declaration of individual freedoms, the law professor said.
"A Bill of Rights moment is always, it seems to me, a time when it's important to try and build and reflect social consensus, as opposed to driving a set of political objectives."
Politics and law-making go hand in hand in a democracy, Adams added — one side wins and gets to enact their preferred policies.
"When you step back into a constitutional instrument, what you hope is that, in fact, that political, that hard-nosed kind of political strategic agenda falls away," he said. "And what it is replaced by is an attempt to build something lasting, meaningful and for which there is, you know, political agreement across the spectrum."
There is not political consensus that firearm ownership should be a basic right, or that workplace vaccine mandates are unjustifiably coercive.
The growing coarseness of political discourse may prevent the collegial tone of Grant Notley-era debates, or the current NDP from going along with any piece of UCP legislation.
But Albertans of various political stripes may be concerned that a soon-to-be-enshrined right appears in stark conflict with a Public Health Act regulation that all child care and front-line health workers get the rubella vaccination.
"That now becomes an open question," Adams told CBC Radio's Alberta at Noon.
In fact, it's not even clear that there will be consensus among the United Conservative base that Smith's Bill of Rights changes are well-aimed. An activist group from her own riding that calls themselves the Black Hat Gang lobbied in UCP circles for a far more expansive rights document.
Leighton Grey, a lawyer who helped the Black Hats and has challenged government-imposed COVID rules, blasted the provincial bill for creating "public policy limits" like the Charter has, to allow courts to weigh individual freedoms against the public good.
"This totally vitiates [impairs] the relevance and effectiveness of the bill, reducing it to the level of a political ploy to appease grassroots rural UCP membership," Grey wrote on social media.
A newly devised right to not be "coerced" into medical treatment without consent could also court controversy for that clause's specific exemptions for residents who lack "capacity" or may cause "substantial harm" to themselves or others. The amendment's wording was designed to ensure that the Bill of Rights doesn't brush up against the government's future plans to legislate forced treatment for drug addicts, Smith confirmed this week.
Usually, a government tailors its legislation to not run afoul of fundamental rights law. In this case, the UCP has done it the other way around.
Universal documents, like the Alberta Bill of Rights and the Charter, are meant to stand for decades or generations.
No enumerated rights have ever been revoked before, but when the Alberta premier ultimately changes or when the premier's key audience changes, it will be worth watching how durable these UCP-inspired, post-pandemic revisions prove to be.
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