Danielle Smith wants to promote herself to monarch. She's discovered that she can magick your rights away at a whim with The Notwithstanding Clause (S33). Smith has in the last week or two started justifying her actions both invoking the ghost of Peter Lougheed, and claiming that legislators invoking S33 is "more democratic" than "unelected judges striking a law down".
It appears to me that Danielle Smith and her backers in the UCP need a bit of remedial education in the structures and features of Canada's system of government. Let's talk about that, shall we?
If you want to be really specific about it, Canada's system of government is a Constitutional Monarchy guided by an Elected Democracy. At the top of the power pyramid is "The Crown", represented by the Governor General. The day to day political power resides with the elected legislature (the House of Commons and the Senate), and the Governor in Council (the executive - Prime Minister and Cabinet or Premier and Cabinet). The courts - especially the higher courts exist and serve as a check on the power held by the legislative and executive arms of our government.
Smith's argument largely rides on the notion of "Parliamentary Sovereignty", which she seems to believe is "unchecked power" - she is mistaken in this belief. Parliamentary Sovereignty is a concept - a convention that arose from the necessity of curtailing the direct powers of the monarchy as Parliament became more than an advisory body to the monarch. However, what it really means is that as the legislature, it is the exclusive domain of the legislature to enact laws.
Other branches of government do not possess that power. The courts cannot write laws, nor can the executive ... any laws written must be passed by the legislature in order to be valid. Even the executive branch cannot merely "write a law into being". The executive branch of our system of government certainly writes laws, but those must still pass through the legislature to become valid.
Smith, and other proponents of an expansive interpretation of Parliamentary Sovereignty misunderstand something fundamental here. Parliamentary Sovereignty does not place them above the law, nor outside the legal framework of the Constitution, nor does it empower them to create their own legal hierarchies of law.
The structure of Canada's system of government places great power in the hands of elected legislators, but it also holds that power in check by making available the ability to challenge legislation in the courts. There is a good reason for the courts to serve as a check on legislative power: Legislators are elected, and therefore they are beholden to public opinion. What is popular in the public imagination isn't always aligned with the overall structures of law set out in the Constitution.
We have a hierarchy of law in Canada, with the Constitution at the pinnacle of that hierarchy. Every valid law in Canada is required to operate within the framework of that hierarchy of laws. Yes, it can be very difficult to write laws that actually function with respect to The Charter - and it should be difficult. Legislators should be very wary of writing legislation that does not stand scrutiny under The Charter.
Government Placing Itself Outside The Rule of Law
Several provinces have attempted to place themselves "outside the rule of law", either through their use of S33, or by writing in a "self-indemnification" clause into the legislation which basically says "you cannot sue the government for any consequence of this legislation. In Bill 2, that is section 14 which is a very longwinded way of the government saying "Nyah Nyah - you can't sue us".
Just as I object to S33 being used as a justification for preventing courts from examining a piece of legislation. I also object to governments "self-indemnifying" by writing these clauses.
One of the key underlying issues that led to the Magna Carta, and ultimately to the monarchy finding its powers stripped from it, replaced by the role of Parliament was the arbitrary abuse of power by whoever happened to hold the crown.
Smith, and other conservative premiers, argue that the application of S33 to a piece of legislation renders any court challenge of that legislation "moot", and therefore the courts should be prevented from hearing the case against the legislation. Section 14 of the Alberta Government's Bill 2 takes that a step further and basically says "even if you think this law has damaged you, you are not allowed to sue the government".
The effect of these approaches is that the government is placing itself outside the law. A key principle of any democracy where The Rule of Law is a central principle is that nobody, including the government itself is "above the law". This isn't a particularly negotiable principle because the moment that a government can place itself outside the law, and declare that it is beyond scrutiny, that government is well on the path to being authoritarian or worse. Even the authors of the Magna Carta (who really weren't fans of democracy itself) would see that and declare that a King who had placed themselves outside the framework of the Great Charter was offside.
If the government cannot be held to account for its actions through the established means of checks and balances on power, then we face a much more dangerous situation. A government which can place itself outside the rule of law is a government which is attempting to make itself into a new monarchy with no checks on its exercise of power. If the harms that a government's actions can do are outside of challenge, where is the check and balance on power? A government can then legislate however it pleases, no matter the damage done to citizens.
In my view, the conceptual notion that the government can legislate itself an exemption from challenge should be ultra vires in a constitutional democracy where the Rule of Law is a principle that does not exclude governments.
Danielle Smith is very much trying to expand "Parliamentary Sovereignty" into "Monarchy of the Legislature", and we should all be alarmed by this.
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