Alberta Politics
Alberta Lieutenant Governor Lois Mitchell in Speech from the Throne mode back in 2016 (Photo: Lieutenant Governor of Alberta).

Unconstitutional anyone? If Lieutenant Governor Lois Mitchell is doing her job, she’ll refuse to sign Bill 1 into law

Posted on February 27, 2020, 10:07 am
9 mins

Bill 1 is a breathtakingly terrible piece of legislation.

The bill, given first reading in the Alberta Legislature on Tuesday, is called the Critical Infrastructure Defence Act.

Edmonton lawyer Simon Renouf (Photo: David J. Climenhaga).

Just for starters, in case you missed it, Bill 1 appears to be intended to make protest illegal and criminalize dissent, although its conveniently timed justification allows the government to claim it’s merely designed to stop things like railway blockades, which are already illegal.

The bill’s drafters sashay blithely into federal jurisdiction — which includes railway infrastructure and the Criminal Code. The intent, obviously, is to try to create uniquely Albertan and creatively unconstitutional criminal offences — offences that take direct aim at free speech.

Its scope is astonishingly broad. The government can define pretty well anything it wants as “critical infrastructure.” This includes, any “thoroughfare, street, road, trail, avenue, parkway, driveway, viaduct, lane, alley, square . . . or other place or any part of any of them, whether publicly or privately owned, that the public is ordinarily entitled or permitted to use for the passage or parking of vehicles.” Even sidewalks!

Don’t just take my word for it. Consider the comment yesterday by Simon Renouf, Q.C., a regular reader of this blog and one of Alberta’s leading lawyers.

“It’s almost certainly unconstitutional,” Mr. Renouf wrote. “I for one, among many defence lawyers, look forward to attacking this bill in court.”

“The government’s advisors have presumably told them this legislative attempt to invade federal jurisdiction and quash dissent is unconstitutional, therefore illegal,” he added. “Yet the government moves ahead. What happened to the ‘rule of law’”?

He continued: “I’m sorry, but streets, squares and sidewalks? Is this a police state?”

Sad to say, that’s now a legitimate question.

Bill 1 is unconstitutional in a way that shows deep contempt for the whole concept of the rule of law, which is ironic if not surprising given the way this government and Canadian Conservatives in general are always prattling on about the rule of law when someone is doing something they don’t like. And not just Conservatives, sad to say.

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

Consider the claims by both Alberta’s former New Democratic Party government and Mr. Kenney’s UCP gang that elected officials in British Columbia were somehow ignoring the rule of law because they wanted to go to court to stop the Trans Mountain Pipeline Expansion. You can argue that they shouldn’t have done that. You can argue that they were going to lose, as they ultimately did. You could argue that they were wasting their taxpayers’ money and the court’s time. But you certainly could not argue they were abusing the rule of law!

Of course, when Conservatives in particular use that phrase, they really mean: “You have to do it our way. You just do! Now shut up!”

And if you won’t? Well, then Bill 1 is for you! We’ll snap our fingers and say the sidewalk in front of the fish and chip shop near your protest is critical infrastructure, go home or we’ll fine you $25,000 or lock you up in jail for six months. Well, this is a slippery-slope argument, which is said to be in bad odour among lawyers and judges — unless they happen to sit on the Alberta Court of Appeal.

Obviously, there are stronger arguments than mere slippery slopes for people like Mr. Renouf to employ against Bill 1 when the time comes.

This legislation is unconstitutional enough, I would suggest, that Lieutenant Governor Lois Mitchell really should refuse to sign it into law.

I’m not talking about something like the recent campaign by the NDP Opposition to ask Ms. Mitchell not to sign Mr. Kenney’s use of legislation to sneakily fire Lorne Gibson while the Election Commissioner was investigating Mr. Kenney’s hinky 2017 campaign for the UCP’s leadership.

That was a pretty sleazy provision in a law ostensibly about reforming boards, agencies and commissions, but it was a bit of a reach to call it worthy of a vice-regal refusal to sign the bill into law. The NDP’s campaign was, at best, quixotic.

John C. Bowen, the lieutenant governor of Alberta in 1937 (Photo: Provincial Archives of Alberta).

Bill 1, however, is a whole different order of offensive. It’s not just sleazy, it’s a direct assault on the fundamental Charter rights of Albertans and all Canadians. What’s more, it intentionally undermines the pre-Charter constitutional division of powers dating back to the British North America Act of 1867 — something Alberta is incredibly sensitive about when the shoe is on the other foot, as we have seen with Mr. Kenney’s recent independantiste maunderings.

Indeed, this is quite close to the circumstances that led Alberta Lieutenant Governor John C. Bowen in 1937 to refuse to sign a series of acts passed by William Aberhart’s Social Credit government — which is roughly tied with Mr. Kenney’s UCP for the title of the most rigidly ideological government in Alberta history — that brazenly invaded federal jurisdiction.

When Premier William Aberhart introduced legislation interfering with federal jurisdiction over banks and allowing government censors to sit in newspaper offices (no need for that in Alberta nowadays!), Mr. Bowen refused to sign them until they were sent to the Supreme Court for review. In 1938, the Supreme Court made short work of them.

Mr. Aberhart is said to have gotten his revenge by shutting off the gas and electricity to Government House, forcing the lieutenant government to move. The place has never been a proper vice-regal residence since.

If Ms. Mitchell is doing her job properly, she will do the same as Lieutenant Governor Bowen did and refuse to sign Bill 1.

If she doesn’t, well, at least we’ll have a rare chance to review her performance in an important if seldom critically examined job.

As for the government, it will be out of luck when the courts rule it is invading federal jurisdiction. There’s no Notwithstanding Clause for that.

If it is determined to violate our fundamental Charter rights to protest in streets, squares and sidewalks, and set up picket lines in front of schools and hospitals even, it can still use the Charter’s Section 33.

But to do so will have to show its true authoritarian colours — not just to Albertans, but to Canadians and others to whom it wants to sell our “ethical oil” as well.

14 Comments to: Unconstitutional anyone? If Lieutenant Governor Lois Mitchell is doing her job, she’ll refuse to sign Bill 1 into law

  1. Athabascan

    February 27th, 2020

    Told you so.

    No way this would happen under Rachel Notley’s government.

    I would gloat, but then I remember that I live in this miserable province too.

    Reply
  2. Just Me

    February 27th, 2020

    Looks like the Feds will soon tell Alberta to get out of their lane.

    There has long been this tendency for Socons to want to control federal powers and remake them into something more effective for the Socon Agenda. I recall back in the day of Stockwell Day’s aspiring bid to become prime minister, it was widely promoted around the church-goers that he would make Canada a pornography-free zone.

    Of course, this sort of initiative would result in all kinds of problems, because no one (surprised?) can determine a definition of pornography. Since Day and his fellow travellers subscribe to Ed Meese’s view of pornography, where he admitted he didn’t know what it was but knew it when he saw it, there was no doubt that there would be a regulatory free-for-all concerning what was pornography. One could easily see a massive crackdown on everything, including fashion publications and swimsuit editions of major sports magazines. Legislative carelessness to make Socons feel good about themselves would allow Canada to rise to the level of Iran in no time. Fortunately, Day and his Christian Taliban never got very far. But there were even musings about Alberta moving to ban whatever pornography is within the province. Of course, this notion was shot down fast, because there were still thoughtful people in Alberta in the 90s.

    On the matter of this legislation where Alberta would enforce bans on protests on clearly federal infrastructure is just more of the same lunacy: no thought as to its legal validity, but it does make a CON feel good. So a provincial injunction would stop protests, but a federal court would tell the injunction to take a hike and stay its own lane.

    I guess if Kenney cannot be prime minister right now, he can pretend to be one from Edmonton. And entertaining weirdness keeps getting better and better.

    Reply
  3. Farmer Dave

    February 27th, 2020

    Jason Kenney has taken over first place from Mr. Aberhart as the worst Alberta Premier in history. If Bill 1 is Proclaimed into law then Kenney better start charging every farmer (like the Dec. 2015 protest), trucker (like the Dec. 2018 protest) and those thugs on horseback (protesting Bill 6) who have held up traffic on Alberta highways and streets and also held up economic progress and public safety in Alberta.

    Reply
  4. Bill Malcolm

    February 27th, 2020

    Apropos of exactly what I was driving at on the previous blogpost re banning a progressive news site from the budget lock up. kenney is a madman on a Con rampage with zero respect for anything our society is supposed to stand for. Introducing legislation that is unconstitutional? Might as well start ordering people to think a certain way, because that’s not allowed under the Charter of Rights either.

    I repeat, why is the drafting and presentation of illegal legislation allowed in the first place? Why is up to the general public to sue the government to end this crap after it lands fully-formed on the body politic? I wonder if the Feds are on the lookout for provinces attempting to horn in on their responsibilities. Or is seat warming their primary talent?

    Judge Wakeling, of the Alberta Court of Appeal, who attempted to make humorous remarks about the Feds interfering in provincial jurisdiction in his carbon tax rendering and getting it wrong, must be wondering if he got it right but 180 degrees out of phase. But, he’s probably not that bright or awake.

    Looks like it’s time for thinking people to get out of Dodge before the upside down Alberta version of Yellow Vests become official street toughs and an official salute to Jason is promulgated.

    Should one hold out any hope that the lieutenant governor is aware? Most of them seem pretty clueless.

    Reply
  5. Dave

    February 27th, 2020

    Unfortunately, I think based on past observation Ms. Mitchell only takes the ceremonial part of the role seriously and does not see beyond that. Some other past Lieutenant Governors would probably be more forceful, in part because of their character or personality, or because in other times there was an understanding that while their powers are limited, they are there precisely to keep governments from over reach and trampling on the rights of citizens.

    Also in some fairness to Ms. Mitchell, some past premiers might have better listened to a caution or warning from the Lieutenant Governor of their time. Mr. Kenney often seems to have his mind made up about things and be very rigid in his thinking, unless of course political opportunism dictates a change of course – he is a career politician after all. Unfortunately, I don’t think Ms. Mitchell has a premier that is very open to much if any advise from her.

    As they are in power longer, some of the contradictions of the UCP are starting to manifest themselves. Recall – yes, right to protest – no. More government support to the energy industry possibly, but probably less government support for anything else, including needed public services. At best the UCP is also slow to recognize the transition the world is already on from fossil fuels to other sources of energy. As a result our economy, which so long did well based on the energy industry, will be slow to adapt to this change and probably languish over the next few years.

    The economic record of Kenney is looking bleak so far and is unlikely to get better. I suppose in a few years the voters will finally get to cast their judgement, but by that time a lot of damage will be done to our economy and perhaps also to our democracy.

    Reply
  6. Pogo

    February 27th, 2020

    Unconstitutional?! Nay! Says mighty li’l Jason! Bow to my astounding Excalibur! You guys are going to get something to cry for now! Have a taste of what the money base b’in sippin’! https://youtu.be/34woJAQZZY8

    Reply
  7. David in Sask

    February 27th, 2020

    Ethical oil?

    My olive oil is ethical because it comes from olives which are food for some people, but oil from a dinosaur fossil that has been rotting for millions of years can hardly claim to be ethical when it comes from a hole in the ground.

    Reply
  8. alan

    February 27th, 2020

    Enemies of the self declared Alberta Petro-State need to be very aware, that wrong thinking (i.e., the type of thinking that is contrary to the official party line) will not only be strongly discouraged, it may be even punished.

    Yet, one can always rely on former PC stalwarts climbing out from under their rock, for a brief moment, to reinforce both the party line and right thinking for the masses; even if, the PC stalwart is not directly financially rewarded for doing so. The indirect financial rewards for doing so remain pretty obvious. If you continue to be a party loyalist, team player, and past member of the dynasty, the world, both within and without Alberta, will always be your personal financial oyster.

    https://21393.mc.tritondigital.com/CBC_THE_EYEOPENER_FROM_CBC_RADIO_CALGARY_HIGHLIGHTS_P/media-session/1ae8117f-f304-4351-82d4-ad02dcb2dd0c/calgeyeopener-dFCe83A8-20200227.mp3

    If the link for some reason does not work, it is supposed to be a CBC Calgary Eyeopener podcast for Thursday, February 27, 2020; where, Jim Dinning is interviewed by David Gray.

    Everything in the podcast explains itself, as Alberta continues to be ruled by the same individuals as it always has been in the past and those same individuals benefit both directly and indirectly from the revolving door that operates between the Government of Alberta and industry, as they always have done so and continue to do so. Same as it ever was.

    Reply
  9. Mandamus

    February 27th, 2020

    There is precedent for the LG to refuse to sign the bill. It has happened, as much as people like to pretend it’s not a thing

    “The Socreds also passed bills that would have placed the province’s banks under government control. However, Lieutenant-Governor John C. Bowen refused to grant Royal Assent to the bills.”

    https://en.wikipedia.org/wiki/Alberta_Social_Credit_Party#Not_%22funny_money%22

    Reply
  10. Nickola Walker

    February 28th, 2020

    It doesn’t work this way. What’s more, Dave knows it doesn’t work this way. He is fast becoming a clickbait engine. While I disagree with the legislation, the LG’s role in 1937 in the passing and enacting laws was vastly different than the current role. In 1937, the King was still a part of the legislative process. In the world of 2020, that is not the case. It’s ridiculous to compare. The Supreme Court is responsible for determining constitutionality. I’m curious how people would feel if the Crown were to assert itself politically or legislatively. People already bitch mercilessly about the Senate – now you want the Crown to be involved as well? The LG is not a lawyer. She is not the courts. She is not the electorate. That is where these things should be fought. In the Courts and in the voters’ box. There are several recent legislative initiatives that have passed through the courts and been deemed unconstitutional. Lois Mitchell is not a lawyer. She never was. She is not capable of making this decision. If you want these things to be different, you are best off not asking a graduate in phys ed to do the dirty work. Get off your asses and fight.

    Reply
  11. jerrymacgp

    February 28th, 2020

    Media, pundits, commenters & politicians on all sides & from across the ideological spectrum are all misusing that phrase, “[the] rule of law”. It does not mean that all laws passed by an elected legislative body, all regulations proclaimed by the executive branch of a jurisdiction, and all regulatory decisions by a decision-making body like an energy regulator, must be obeyed without question and without challenge. It means that everyone is equal before the law and nobody is above it — contrasting with “the rule of men”, in which the declarations of a monarch or dictator are the law & not subject to judicial review or oversight.

    In a common-law jurisdiction like Canada — excluding Quebec — the “law” that is supposed to rule, is not limited to statutes passed by Parliament, the Legislature and our municipal councils. It also includes the entire body of judge-made law: centuries of evolving legal precedent established by courts of competent jurisdiction across the country, including rulings on our civil rights, on the constitutional division of powers between Parliament & the provinces, on interprovincial commerce, on the role & powers of the police, and on the rights and privileges of Indigenous peoples. So, if a citizen, organization or government challenges the validity of a statute or regulation or regulatory decision before the courts, that is, ipso facto, fully consistent with the rule of law.

    https://en.wikipedia.org/wiki/Rule_of_law

    Reply
  12. Bob Raynard

    February 28th, 2020

    Jason Kenney loves to go on about how ethically Alberta’s oil is sourced, but simultaneously dismantles the ethical structures he goes on about.

    I assume that if this bill passes, the various police forces will exercise good judgement in deciding when to use the powers it grants them, possibly to the frustration of our ethical dictator. That brings up the possible scenario of the politicians pushing justice people into doing something they aren’t inclined to do, something that didn’t work out well for our prime minister.

    Reply
  13. Bob Raynard

    March 1st, 2020

    Better late than never, I realized this morning that Simon doesn’t have to put his own time in to get Bill 1 declared unconstitutional, Jason’s friend John Carpay will do the legal challenge.

    Here in Edmonton we have an annoying street evangelist who sets up a portable PA system on crowded sidewalks (critical infrastructure according to our government) and blasts his message. The City has ticketed him to try to shut him down, but just recently the Justice Centre for Constitutional Freedoms galloped to his rescue and announced it will fight the ticket on the evangelist’s behalf, under religious freedom. The trial starts, appropriately enough, on April Fools’ Day. The incident occurred last June, before the passage of Bill 1, so I would assume it would not apply in this instance.*

    Assuming the JCCF is successful, all the police have to do now is give him another ticket under Bill 1 and watch what happens.

    https://www.jccf.ca/justice-centre-defends-edmonton-resident-ticketed-for-peaceful-public-expression/

    *My assumption that Bill 1 does not apply in this instance is based on basic fair play rules that make it unfair to punish someone for committing an act before it is declared illegal. That said, since Jason doesn’t seem to understand fair play, I can see how he might make the law retroactive. He has already retroactively taken away Ryan Watson’s right to sue Edouard Maurice when Maurice accidentally shot him in the course of a robbery.

    Reply
    • David Climenhaga

      March 1st, 2020

      I’m not unsympathetic to Dale Malayko’s struggles with the EPS myself. (It’s OK to use his last name now, because Mr. Carpay has.) I would have been happier if he were being represented by a progressive lawyer, rather than by Mr. Carpay, whom I doubt would represent some latter-day Joe Hill who tried the same thing, his protestations to the contrary notwithstanding. The great irony to me that day Pastor Dale was being busted by six cops in three trucks was that they were doing this at Edmonton’s most dangerous intersection for pedestrians, and paying no attention whatsoever to the actual threat to life and limb steps away. DJC

      Reply

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