In late November, the Alberta legislature passed its newly improved Bill of Rights. The bill is a signature plank of Premier Danielle Smith’s United Conservative government. New provisions purport to guarantee rights to hold property, own firearms and prohibit vaccine mandates. Unfortunately, the bill may not do any of those things. In the end, it’s not likely to amount to a hill of beans.
First enacted in 1972, the Alberta Bill of Rights has never been a bulwark against state action. Much like the Canadian Bill of Rights, courts have largely sidelined it. Contrary to what some Albertans may expect, their newly amended Bill of Rights does not grant ironclad rights. At least four problems stand in the way.
First problem: Like the Canadian Bill of Rights, the Alberta Bill of Rights is a statute and not a constitutional enactment like the Charter of Rights and Freedoms. No statute can limit the power of the legislature to pass new legislation that overrides, amends or repeals it. Future governments can explicitly breach the Bill of Rights. In fact, that’s what it says: “The Legislature may expressly declare in an Act that a law of Alberta operates notwithstanding this Act.”
That could at least pose a political impediment. Governments don’t like to announce that they are breaching rights. But transparency might not even be required. Under the Canadian Bill of Rights, courts have upheld statutes merely on the grounds that they had a “valid federal objective,” which is not a difficult threshold to meet. Only constitutions can “entrench” rights against future legislative action.
The UCP could have made the provincial Bill of Rights part of the Alberta Constitution. Under Canada’s Constitution Act of 1982, provincial legislatures can amend their constitutions unilaterally. (Yes, Canadian provinces have their own constitutions.) A future Alberta legislature, of course, could amend it in turn, so nothing can be written in stone. But it would be trickier to legislate around a provincial constitution than a mere statute.
Second problem: Some of the amendments don’t mean much. Rights protect against the law’s interference. But one section says that people have the right to possess firearms “in accordance with the law.” What’s the point of that? Not to mention that the federal government, to which the Alberta Bill of Rights does not apply, has jurisdiction to impose restrictions on guns. Another section says that people have the right to property “except to the extent authorized by law and except by due process of law.” That is, you have property rights until the law takes them away, which isn’t saying much.
During COVID, courts held that measures like lockdowns and vaccine requirements did not violate Charter rights — or if they did, that they were permissible under the Charter’s reasonable limits clause. Smith has said that the unvaccinated were “the most discriminated-against group” she had seen in her lifetime. She had proposed to amend the Alberta Human Rights Act (not the Bill of Rights) to prohibit private businesses and the government from discriminating on the grounds of vaccination status. But the UCP instead decided to amend the Bill of Rights, which applies to government only. They may have gotten cold feet about preventing discrimination in the private sector.
The Alberta Bill of Rights includes a section on vaccines, but it may not change much. It says that everyone has the right “not to be subjected to, or coerced into receiving, a vaccine without the consent of that individual.” The right to refuse medical treatment already exists, along with the right to give informed consent. “Not to be subjected to” doesn’t add anything. If you went to get a vaccine, signed the page and stuck out your arm, you gave legal consent. You may have done so reluctantly, but that does not vitiate your consent. (Whether your consent was informed is another question, but that is between you and the health-care practitioner who gave the shot.)
What does “coerced into receiving” mean? Does it mean that governments can’t create vaccine requirements for spaces, services, schools or employment? Maybe, but maybe not. Coercion means being made to do something by force or the threat of force. Imprisonment is coercive. Being held down on a gurney is coercive. COVID authorities insisted that vaccine mandates and passports were not coercive because people had choices, even if those choices were bad. At best, the section is not clear. Even Alberta Justice Minister Mickey Amery, at a press conference in late October, was unwilling to say whether under the Bill of Rights no one would be required to get a vaccine. The bill could instead have said that everyone has a right to be unvaccinated to access any space, service, school or employment. Of course, even if it had, future governments could still get around it because the Bill of Rights is a statute, not part of a constitution.
Third problem: The UCP chose to subject all rights protected by the Bill of Rights to “reasonable limits.” They included a clause that resembles the infamous “reasonable limits” clause in the Charter, upon which courts have relied in numerous cases to uphold legislation that breaches Charter rights.
Fourth problem: Courts, not legislatures, control what rights mean. Bills of rights appear to give rights to the people, but what they really do is give power to courts. The rights have “internal limits” not identified in the text, especially where language is sparse and vague. No one knows where the line is in practice until the courts say. If the experience with the Charter is any indication, the rights set out in the Alberta Bill of Rights may not mean what its drafters intended.
Smith deserves credit for her aspiration to give Albertans rights to resist state intrusions. But the proof of the pudding is in the eating. In this era of the hyperactive administrative state, keeping government at bay requires bold action that disrupts the prevailing order. The new Alberta Bill of Rights is more likely to be just one more signpost on the road to perdition.
National Post
Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.