Alberta Politics
Former Alberta Premier Rachel Notley, whose NDP government brought in the so-called turn-off-the-taps law (Photo: David J. Climenhaga).

Court’s decision to turn off Alberta’s turn-off-the-taps law should surprise no one

Posted on September 25, 2019, 2:22 am
8 mins

Alberta’s so-called turn-off-the-taps law was pretty obviously unconstitutional when Rachel Notley’s New Democratic Party passed it and it continued to be unconstitutional when Jason Kenney’s United Conservative Party had it proclaimed into law.

So yesterday’s ruling of the Federal Court of Canada granting British Columbia a temporary injunction blocking application of the risibly named Preserving Canada’s Economic Prosperity Act while the courts make its unconstitutionality official should surprise no one.

Alberta UCP Premier Jason Kenney (Photo: David J. Climenhaga).

The decision will come as a bitter disappointment to the UCP’s credulous base, but even Mr. Kenney and Energy Minister Sonya Savage dropped their usual bluster and didn’t sound all that shocked or appalled by what their lawyers must have told them Justice Sebastien Grammond was likely to say. Leastways, they obviously had their talking points in place.

David Eby, B.C.’s attorney general, called the injunction a “big win” because it means the province no longer has Alberta’s unconstitutional “significant threat to our economy and our people” in play, which is a fair assessment under the circumstances.

Arguably, the law allowing Alberta to blockade shipments of fuel from refineries here to force B.C.’s government to ignore the concerns of its own voters and knuckle under to Alberta’s demands for a pipeline was a moral and political failure by the NDP.

Former PC premier Alison Redford (Photo: David J. Climenhaga).

Democracy depends on a consensus not to abuse power, and drafting legislation known in advance to violate the nation’s constitution, putting that consensus at risk, amounts to moral failure. Hoping the belligerent attitude demanded by Mr. Kenney’s Conservatives would persuade die-hard right-wingers to grant the NDP another term in office in gratitude for legislation that horrified many of its most loyal supporters was foolhardy.

That said, at least the NDP had a plan for this legislation, albeit a cynical one. They’d fail to proclaim it into law, and argue it couldn’t be challenged in court before it became the law of the land.

Notwithstanding Mr. Kenney’s promise to his supporters to undo everything the NDP did in office, he obviously liked the nasty tone of the PCEPA, ignored the outgoing NDP’s warnings, and had it proclaimed into law soon after coming to power in last April’s provincial election.

Former PC premier Jim Prentice (Photo: David J. Climenhaga).

Ms. Notley now mocks Mr. Kenney for this blunder, comparing his decision to proclaim the law to blowing up a missile on the launch pad. “This is classic Jason Kenney. It’s all about politics, it’s not about getting the job done,” the Edmonton Journal quoted her saying.

For his part, Mr. Kenney responded lamely that,I assume that former premier Notley got advice that this was compliant with the Constitution.” The rest of us assume that the government’s lawyers told him otherwise, but whatever.

The last time something like this happened, Alison Redford was the Progressive Conservative premier of Alberta and the law her government had passed was an effort to suppress the fundamental free-speech rights of anyone who dared argue an illegal strike was an appropriate response to her government’s plan to terminate the legal arbitration rights of public employees.

That was in 2013, and the Public Sector Services Continuation Act, was patently unconstitutional. Ms. Redford, who like Ms. Notley is a capable lawyer, adopted the same strategy — to pass the law but not proclaim it.

Canadian Senator and former journalist Paula Simons (Photo: David J. Climenhaga).

What happened then is rich in irony, given what has happened since. The Wildrose Party — now the base of Mr. Kenney’s UCP — took the side of the public sector unions most impacted by the law.

“The Wildrose Party believes strongly in the rule of law and upholding contracts, including collective bargaining agreements,” it said in a pious statement. The party insisted this was a position of principle, not at all cynical.

Paula Simons, then a political columnist for the Edmonton Journal and now a member of the Senate of Canada, observed dryly in her column that Alberta Union of Provincial Employees President Guy Smith and Wildrose leader Danielle Smith “make unlikely bedfellows. But in the cold of Alberta politics, sometimes you need to snuggle up with unexpected allies under the covers.” I imagine neither Ms. Smith nor Mr. Smith appreciated Ms. Simons’ metaphor.

Alberta Energy Minister Sonya Savage (Photo: David J. Climenhaga).

Alas, last June, when Mr. Kenney’s UCP Government passed and proclaimed the Public Sector Wage Arbitration Deferral Act, which suspends the legal arbitration rights of public employees, there was not a peep of protest or concern about the rule of law from any of those previously principled Wildrosers.

Soon after Jim Prentice became PC premier in 2014, his government passed legislation repealing the Redford era law, a political gambit every bit as effective as Ms. Notley’s adoption of the turn-off-the-taps strategy.

Nevertheless, while he lost the 2015 election to the NDP, the late Mr. Prentice at least deserves credit for doing the right thing to eliminate Ms. Redford’s unconstitutional bill.

Mr. Kenney, again ironically, appears determined to stand by what is arguably Ms. Notley’s worst piece of legislation while tearing up the many good laws her government passed.

How to deal with influential bloggers, a lesson from history

The Paula Simons column quoted above was published by the Edmonton Journal on Dec. 3, 2013. It ran on page 5 of the paper and, unfortunately, is no longer available except through online databases.

In it, Ms. Simons summarized the argument of a law professor on the government’s strategy behind the Public Sector Wage Arbitration Deferral Act. “In his analysis,” she wrote, “the new legislation, with its pointed emphasis on stiff fines for advocating an illegal strike, is designed to intimidate high-profile, labour-affiliated bloggers, such as Dave Climenhaga and Dave Cournoyer.” (Emphasis added.)

If only this were true!

Readers will understand, despite my scepticism about this interpretation of the Redford Government’s motives, why Ms. Simons is my favourite Canadian Senator, and is likely ever to remain so.

8 Comments to: Court’s decision to turn off Alberta’s turn-off-the-taps law should surprise no one

  1. Dave

    September 25th, 2019

    Its seems like a fitting description of Mr. Kenney may be “good at politics, not so good at the law”. If I recall correctly, after the election, but when she was still Premier, Ms. Notley warned or advised Mr. Kenney to not proclaim this law. At that point she had little if anything to gain politically and it probably would have been easy enough for him to just do nothing, as advised. Did he listen? No!

    This law was Mr. Kenney’s idea originally, sort of foisted on the previous NDP government as a way to make it look like they were doing something, when the action proposed was not likely realistically possible. It was one of Mr. Kenney’s clever political traps – do nothing and lose political support, try and fail and lose political support. Except, Premier Notley did not fall into the trap entirely and left it to potentially spring back on Kenney, which it now has.

    At some point Mr. Kenney’s supporters are going to begin to wonder if he is as brilliant as he tries to come across as, why isn’t he accomplishing much and why are his ideas turning out so bad.

    Reply
    • John A

      September 25th, 2019

      Your last sentence is 100 % on target. I’ve said the same thing more or less for a couple of months. I give his supporters till around spring before they start grumbling about nothing changing. There is nothing he can do to a significant degree to change the fossil fuel ship around. Witness his recent trip to the maritimes where he made useless gestures . Alberta is a stepping stone for Kenney on his hopeful way back to Ottawa.

      Reply
      • Jim

        September 25th, 2019

        I agree but who will he and his supporters blame when this happens? They got in by blaming the NDP for all the problems but that won’t work a second time. Kenney reminds me of a person I once knew who didn’t stay at jobs too long for fear that people would find out they had no idea what they were doing. Great in the interview, reasonable experience on paper and enough references to get the job but doing the actual work was another story. How long can Kenney stay in Alberta before people realize he has no idea what he is doing?

        Reply
    • Charity

      September 27th, 2019

      It’s cute that you think his supporters will pay any attention at all to evidence. Anything that benefits them is because of their super-awesome conservative governments, and anything that negatively impacts them is because of the NDP, or the federal Liberals, or leftists in general, or Russian and/or Chinese spies.

      Reply
  2. tom in ontario

    September 25th, 2019

    “…is designed to intimidate high-profile, labour-affiliated bloggers, such as Dave Climenhaga…”
    That sentence fragment gets you fifty bucks, Mr. Blogger!

    Reply
  3. David in Sask

    September 25th, 2019

    Mr. Kenney’s true believers will soon come face to face with the reality that the good times for oil in Alberta and the good paying jobs it once offered are gone for good. Climate change is behind that and it doesn’t matter what Kenney or the UCP think or want to believe. Mother nature is going to wake up her sons and daughters even in Alberta to the reality that faces that one horse economy. Maybe not real soon but not too long from now. This is especially so if the sons and daughters want to live a long life as most humans are pre-programmed to do.

    It gives a whole new meaning to pro life.

    Reply
  4. Jerrymacgp

    September 25th, 2019

    Speaking of unproclaimed legislation coming back to bite you in the rear end … I still think it’s too bad the NDP didn’t repeal the then-dormant Education Act early on in their mandate while they had the chance. Had they done so, the UCP would have had to do a bit more work to reverse the Bill 24 GSA protections in the School Act after they took office, and while that might not have stopped them from doing it, it might have been a higher profile effort & created more protest than turned out to be the case.

    Reply
  5. Just Me

    September 25th, 2019

    Kenney has a love of bad laws and, like Harper, a deep faith in those defending such laws before the courts. The defence of those laws will fail the legal test, but they will forever be placed on appeal, in the faint hope the judge(s) can either be bought, or snooze long enough to allow a few of them to slip through. In the mind of Kenney and his fellow travellers, the courts are the enemy, full stop.

    Reply

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