Alberta Politics
Alberta Liberal Leader David Khan (Photo: David J. Climenhaga).

Alberta’s Bill 1 is bad law, bad theatre, and an unconstitutional attack on the fundamental rights of citizens

Posted on June 05, 2020, 2:15 am
7 mins

If the passage of Bill 1 by the Alberta Legislature last month demonstrates anything, it’s the contempt in which Premier Jason Kenney and the United Conservative Party hold the rule of law.

Mr. Kenney and his well-behaved UCP caucus know that Canada’s Constitution is the supreme law of the land. Not that Canadian Conservatives have ever liked it very much, especially the Canadian Charter of Rights and Freedoms that was arguably Prime Minister Pierre Elliott Trudeau’s crowning achievement when he made it possible to stitch Canada’s original British-made constitutional documents into a truly Canadian thing in 1982.

Alberta Premier Jason Kenney in 2017 (Photo: David J. Climenhaga).

Mr. Kenney and the UCP know perfectly well their so-called Critical Infrastructure Defence Act is unconstitutional and unlikely to survive a challenge in the country’s courts — which, again to the irritation of the current generation of Canadian Conservatives, remain impartial, independent and apolitical.

The Cabinet has certainly been so advised by the government’s own competent lawyers, although the problems with the bill are plain enough you don’t have to be a “trained lawyer,” as they sometimes say of our justice minister, to know it.

Premier Kenney and the UCP have chosen to ignore this, though, confident that they can use the law unconstitutionally now to suppress free speech and free association to help achieve their most controversial goals. They doubtless reckon that later they can score a few points with their base by complaining about “activist judges” meddling with their plans.

Alberta Liberal Leader David Khan provided a simple and useful primer on the key problems with Bill 1 in a Twitter thread on Wednesday.

In addition to his political role, which of necessity must happen outside the Legislature, Mr. Khan is a constitutional lawyer specializing in Indigenous rights issues.

He didn’t mince his words in his tweeted critique of the Critical Infrastructure Defence Act, which was passed by the Legislature on May 28 but has not yet been proclaimed into law. It is, he said, odious, draconian and authoritarian.

“It criminalizes peaceful public protests/marches down city streets – like the #BLM protests in #YYC yesterday,” he tweeted.

It does this through classic of legislative overreach — for more serious than in the federal gun-control legislation Alberta’s UCP MLAs have been excoriating with that very term.

It attacks Albertans’ free speech, free assembly and free association rights to gather in public to protest by defining “critical infrastructure” too broadly — making it mean essentially anything the cabinet decides wants it to, including city streets and sidewalks.

The late Pierre Elliott Trudeau, prime minister of Canada (Photo: Duncan Cameron, Library and Archives Canada).

Then it slaps heavy penalties anyone participating in a crude attempt to criminalize lawful protest.

When #Bill1 becomes law *ANYONE* participating in (or even helping organize) peaceful freedom of assembly/speech protests/marches on city streets (even on sidewalks!) *FOR ANY REASON* could be *ARRESTED OR CHARGED* & face $25000 in fines or SIX MONTHS’ JAIL,” Mr. Khan tweeted.

“This *CRIMINALIZES* Albertans’ Charter rights of freedom of thought, belief, opinion & expression, peaceful assembly & association, whether expressing themselves or protesting on private OR *PUBLIC* land.”

Arguing Bill 1 is likely to succumb to a Charter challenge, Mr. Khan continued: “However it will take years to challenge #Bill1 in our courts–& meanwhile it puts a dangerous chill on Albertans’ rights to express themselves & protest peacefully about important causes.”

There’s much more, and I recommend taking the time to read the rest of Mr. Khan’s comments.

As the government knows, existing laws are up to the task of protecting critical infrastructure in Canada. But to rely on laws that that are within the limits in our Constitution is to honour the rule of law.

Naturally, there is an element of posturing for the UCP base as in most everything Mr. Kenney does. More importantly, though, it’s clear he wants to circumvent the Constitution’s protections of our fundamental freedoms for as long as he can get away with it.

A government serious about the rule of law would have sought judicial review of the draft legislation from the Supreme Court of Canada before ramming it through the Legislature. That is what the top Court’s reference procedure is for.

A government more serious about the rule of law could also have acknowledged that the law was in violation of the fundamental rights provisions of the Charter and expressly invoked Section 33, the Notwithstanding Clause, as Quebec did in its religious symbols law.

The UCP could still do that by amending Bill 1 to add a Section 33 declaration.

But that would require them to show the courage of their convictions and respect the rule of law. It would also show the country and the world that despite Mr. Kenney’s constant tut-tutting about “dictator oil,” Alberta is on its way to being a kind of dictatorship itself.

Of course, this isn’t about writing good laws that Alberta needs. As Mr. Khan pointed out, Bill 1 is redundant, unneeded and basically stupid.

Bill 1 is about domination and division. And when the court strikes it down, it will be an excuse for Mr. Kenney to puff himself up and whine about unelected judges.

With the UCP, instead of good government we get bad theatre. No wonder, as the polls show, the audience doesn’t much like our leading man any more.

20 Comments to: Alberta’s Bill 1 is bad law, bad theatre, and an unconstitutional attack on the fundamental rights of citizens

  1. Bill Malcolm

    June 5th, 2020

    And does kenney expect that the RCMP will enforce his Critical Infrastructure Defence law in rural areas outside of the jurisdiction of kowtowing city and town police? Therein lies a dilemma for the RCMP. As a contractor to the province but a federal institution, and no doubt well aware of the charter rights disruptions the new law embodies, what are they likely to do? They are in a spot of bother after the Nova Scotia massacre being see-sawed between calls for provincial or federal enquiries into the matter and their response to it. The Kelowna incident last week and others is indicative of very strange assaultive behaviour of some of their members as well.

    I’d suggest that the official RCMP response to this law will give an indication which way the wind blows among the elite running this country. There is of course, the shield once removed from source, of enforcing a court order resulting from the Act. But one wonders whether kenney has not over-reached too blatantly this time. I hope so. Then let the caterwauling begin if things don’t go his way.

    Reply
  2. Abs

    June 5th, 2020

    “Bill 1 is redundant, unneeded and basically stupid.”

    Yes, it is. And police forces in this province have already stated in writing that they will not interfere with peaceful protests, like the one taking place today at the legislature. Enforcing Kenney’s anti-protest law, once it gets the rubber stamp, would open them up for legal liability, wouldn’t it?

    This is why Kenney mentioned yet again this week that he wants his own provincial police force to enforce his undemocratic, unconstitutional laws. When the laws themselves disrespect the rule of law, it takes a police force that disrespects the rule of law to enforce them. He might as well swap out the posters in the windows of the legislature right now for new ones that read, “Black Lives Don’t Matter,” and later, “No Lives Matter”. Hearting oil and gas is about all he hearts.

    As I’ve been saying for some time now, he is setting the scene to come down hard on the people of Alberta and consolidate his authority over us. He’s on a mission from God. Kenney’s God, the God of Kenney, who answers directly to the premier.

    Stupid is as stupid does. More importantly, evil is as evil does.

    Reply
  3. Just Me

    June 5th, 2020

    In the absence of the fleets of black helicopters, platoons of National Guards, and phalanxes of “paramilitaries” that Trump_45 has at his questionable disposal, Kenney will certainly use the Notwithstanding Clause to gird his assault of demonstrations and political associations. Using the Nixonian playbook (same used by Trump_45) to foist one dirty trick after another on his so called enemies, Kenney is looking to teach everyone a lesson in his power. Of course, Kenney seems to have ignored the part of the story where Nixon fell ingloriously from power because of his reckless use of his power. Hubris maybe Kenney’s downfall.

    Reply
  4. Bob Raynard

    June 5th, 2020

    Thanks for another great post, David. Like all good posts, it leaves me curious about a couple of things, that my legal training (watching all 15 or so seasons of Law & Order) is unprepared to answer.

    My understanding is that one way to challenge a bad law is to break it, be arrested for breaking it, then challenge its constitutionality in the resulting trial. If I were to choose to go that route, would it be possible for me to have the law declared unconstitutional in my trial, then have the government invoke the not withstanding clause and still have to spend 6 months in jail?

    My second question is whether anyone else can ask the supreme court for a review of the legislation, or does it have to be the government that proposes the legislation?

    Finally, I am wondering if the UCP learned a strategy from Ms. Notley, and her BC wine ban. Towards the end of their mandate, the Notley government passed a law prohibiting the importation of wine from BC, in retaliation for BC’s opposition to pipelines, and in a desperate attempt to look like they were doing something. The government passed the law in the legislature, but then did not proclaim it, because they knew the BC government could not challenge the law until it was proclaimed. Once elected, the Kenney government proclaimed the law, BC challenged it, and it was thrown out. Kenney gained some political points by showing how the Notley government wrote bad legislation, and Alberta lost whatever advantage they had by having this law on the books.

    If there is indeed a similarity between the NDP’s wine ban and the UCP’s Bill 1, it will be interesting to see if the UCP will actually proclaim their law now that it has passed. Is our government so shallow that their signature legislation, in the midst of a pandemic, is nothing more than window dressing?

    Reply
    • David Climenhaga

      June 5th, 2020

      Bob: Anyone whose rights or freedoms guaranteed by the Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. So you don’t necessarily have to break an unconstitutional law and be sanctioned to challenge the constitutionality of a government’s conduct. But, as I understand it, I can’t just waltz into the Court of Queen’s Bench and say, this is obviously unconstitutional, review it, please. As to your final point, the strategy used and advocated by Ms. Notley in the wine case and the proposed fuel boycott, in my opinion, is also contemptuous of the rule of law. I left that discussion out of this piece purposely because it’s a whole other can o’ worms, and I always write too much. Time will tell if this is part of the Kenney Government’s strategy. I actually doubt it. DJC

      Reply
  5. Abs

    June 5th, 2020

    And furthermore:

    Where were all the adult protestors at election time last year? Did they show up at the polls and vote? Do they realize that unless they vote, they are tacitly condoning corrupt governments that take away their rights? Will they happily pay thousands of dollars in fines the next time they want to protest? Will they vote at the next election, or passively let things slide? Freedom isn’t free. It comes attached to a vote.

    Reply
    • Magnus

      June 5th, 2020

      40+ hours a week and underpaid brings everyone towards suppression. That protest wouldn
      t have ever happened if unemplyoment wasn’t in the millions and COIVd-19 wasn’t keeping people from working. The whole system is in place to keep us from getting involved in politics and in turn in the know of what laws are trying to be passed.

      Reply
    • jerrymacgp

      June 6th, 2020

      They did. Voter turnout in the 2019 Alberta election was among the highest in recent memory. There are many of us who can legitimately claim — as I can & do — “don’t blame me, I voted for Rachel”. But there are far more, especially outside of Edmonton, who are getting exactly what they signed up for when they voted UCP — even if they really didn’t know what they were voting for when they marked their ballot, because they hadn’t been paying attention during the PC leadership/party merger/UCP leadership marathon that led up to the campaign. The Jason juggernaut left no doubt about what it intended to do with power once JK was Premier.

      Reply
    • Athabascan

      June 7th, 2020

      Excellent question ABS.

      I often wonder where all these so-called “woke” Albertans were during the election? We see doctors, nurses, teachers, university staff and academics, as well as GOA public servants all being mistreated by the kenney government, but my question is who did they vote for, if they bothered to vote at all?

      There are about 250,000 Albertans out of work – who did they vote for?

      It’s tragic that so many should suffer under kenney’s fascist regime, but I can’t help but wonder how much of it is self-inflicted because of the way they voted, or didn’t vote at all?

      Does anyone believe we would be in this kind of pickle if Notley had won the election? Just think, we have just 3 more years of this BS. Next time folks, vote properly. That means don’t ote for a candidate under RCMP investigation, and a documented liar.

      Reply
  6. Derek

    June 5th, 2020

    In 1962, John F. Kennedy famously said, “Those who make peaceful revolution impossible will make violent revolution inevitable.”
    “I was always willing to be reasonable until I had to be unreasonable. Sometimes reasonable men must do unreasonable things.”
    ― Marvin Heemeyer

    The last thing we want to do is make people go to extremes to change things. When you ban all forms of protesting the people that are desperate for change will be forced to commit criminal acts. Kenney is bad for Alberta and this law is bad for Albertans

    Reply
  7. Abs

    June 5th, 2020

    If Kenney is eager to trigger the notwithstanding clause and a referendum, he’ll slap Bill One into place ASAP, so someone can break it and precipitate Kingdom of Kenney before the next election. He’s running out of time. I’m sure his opponents are carefully considering and vetting exactly the right person to do exactly the right thing to challenge this piece of work. But Kenney is organizing things, too, and a private police force takes time. So much plotting and scheming to destroy democracy and Canadian society as we know it. Why, Alberta, why?

    Reply
  8. Dave

    June 5th, 2020

    I’m beginning to think the UCP government has a most productive Department of Bad Ideas. If it is a bad idea, they seem to be right on it, good ideas get dismissed or ignored. Now, every government and political party has a few less than stellar ministers who bungle things up. The test of competence is that these folks usually get dispatched or demoted or at least a stern talking to which helps ensure they don’t screw up again. However, I think unfortunately for the UCP the competence problem is right at the very top.

    Legalities and justice seem to be one particular blind spot for the UCP, although there are other serious ones in health care (ahem .. doctors) and in communications (ie. the gong show war room). If I didn’t think the Justice Minister knew what he was getting into and a somewhat willing participant in many of the stupid ideas, I would actually feel a little bit sorry for him.

    For a party that talks about rule of law, there seems to be a too easy disregard of the law when it seems inconvenient for them and it started on Day 1 when Kenney actually made a show of actually signing a written grassroots guarantee then amazingly quickly disavowed it. I do think disgruntled party members would have some legitimate claim to breach of contract, supposing anyone ever believed Kenney in the first place. Of course there was also the casual flouting of the elections finance laws before that and the suspiciously close co-operation by some of Kenney’s close aides with the kamikaze candidate who flouted them. Of course, on the financing side nothing has been proven yet to implicate Kenney, but just to be safe the UCP fired the Elections Commissioner investigating all this while Kenney was safely out of town, to maintain the appearance of keeping his hands clean here. We can go even further back for examples of the Premiers contempt for rules to the PC leadership race in which he was actually fined for breaking the rules. I suppose the rules only apply to other people not him.

    So should we be surprised that a leader and a party that has demonstrated contempt for legality, justice and ethics on a number of occasions already be at it again? Probably not. Of course, this will be just another example of over reach that ends up in the courts, wasting everyone’s time and our money. A more competent government would not be so stubborn and willfully blind of the law when drafting legislation. However, I just don’t think Kenney and the UCP much care and seem to just take juvenile delight in the equivalent of giving the middle finger to those they have contempt for on every occasion they can.

    Reply
    • Athabascan

      June 7th, 2020

      Yup. And just think the rubes in Alberta voted for this. Is the rest of Canada correct in their stereotype of Albertans? I wonder.

      Reply
    • June 7th, 2020

      I don’t think the UCP are incompetent. I think they know what they are doing. They just aren’t doing the things that would benefit Albertans. They seem to actually be on a mission to undermine Alberta, open the province up for wealth-harvesting by multinationals (health-care, education, resources, maybe even private prisons) and they seem to be trying to funnel money out of the province and the country as fast as possible. Destroying social safety nets is likely deeply satisfying ideologically, but it really frees up more money to send to whomever it is they are really working for. It sure isn’t us.

      Reply
  9. Jessica Hallam

    June 5th, 2020

    The classic, propose something egregious, walk it back a little, appease the public with concessions for things you never planned on fighting for.

    Reply
  10. Scotty on Denman

    June 5th, 2020

    ”…trained lawyer”, yes, but is he House broken?

    Reply
  11. karl roth

    June 8th, 2020

    great post and it’s great that this is such a great go-to blog for what’s up here in Canada’s own version of the land of the free and home of the brave . . . AB

    truly boggles the mind that there are so many Albertans that think Kenney’s policies and outlook/weltanschauung are sensible and fitting in this day and age
    unb’Uh effing lievable !!

    true, stoopid is easily found but what really sticks in my craw is the self-righteous attitude that seems to be part of this boneheaded, obstreperous crews make-up
    particularly Kenney’s over inflated self estimation and self assurance

    the self-righteousness that gives them permission to impose their way on non-believers using whatever methods are at hand and seems mostly by outright lying about and distorting the issues and if that doesn’t work . . . blame Trudeau and the liBruls and/or lefty environmental conspirators
    or
    pass really bad law

    Against stupidity the very gods themselves contend in vain.
    Friedrich Schiller

    i hope not in AB’s case

    Reply

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