Governments Seizing Powers They Have No Right To

In Alberta recently the UCP government has written a number of laws which undermine the role of the courts as a check on power.  There are several strategies that are being deployed, and all of them ultimately attempt to make it impossible for citizens who are affected by these laws to access any kind of remediation for the harms done by the law. 

There are several strategies in play that we need to talk about.  Some of them I have already talked about in considerable depth here, the others I have not addressed yet, and this post will serve as a jumping off point for thinking about these things.   

The strategies that are being used are: 

1. The Notwithstanding Clause
2. Final Decision Rests With The Minister
3. Self-Indemnification Clauses 

The Premier Who Would Be Queen

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? 

Alberta Bill 2 and The Notwithstanding Clause

So, Alberta has used S33 as part of its “Back To Work” legislation for ending the teachers strike. There will be many pixels of virtual ink spilled over this.  Much of that will go on breathlessly about how this is “unprecedented”, “shocking”, and so on.  Rest assured, none of this is shocking.  The UCP has been looking for an excuse to use S33 for quite some time - going back to Jason Kenney, if you have been paying attention.  Kenney’s Bill 1 would have become that bill - except the excuse for Bill 1 vaporized.

The UCP is being purposeful.  They started musing about S33 to buttress their anti-trans legislation a while ago, but I think they also realized that outside their base, the broader public has little appetite for such a move.  This application of it is “temporary”, and addresses events that are directly affecting families (often an easy sell for conservatives who love to spout off about family values). 

The Alberta Sovereignty Act - First Thoughts

 Yesterday, Danielle Smith tabled the “Alberta Sovereignty Act”.  

I haven’t read through it all yet, but like the rest of you, I’ve seen the commentary in the news, and to be kind, it’s terrifying. 

In essence, it pushes the processes of legislating laws into the hands of the Governor in Council (AKA Cabinet).  Smith is granting herself the powers that a monarch used to hold - back before the Magna Carta was a thing.  

If that doesn’t terrify you, perhaps it should. This isn’t a bill designed to “fight back against overreach from Ottawa”, it’s a bill designed to strip the citizens of Alberta of a democratic system of government. At first glance, there is very little in the form of checks and balances once the legislature “passes a motion” putting a particular issue in the hands of cabinet.  Cabinet can then go off and change laws as it sees fit, and there’s no visibility, no accountability, not even so much as a pro forma vote in the legislature afterwards. 

The ability to change legislation from within cabinet expands the powers held under “Order in Council (OIC)” enormously. Nominally, OIC is reserved so that cabinet can make spending decisions, or respond to emergencies without recalling the legislature. Now Smith is granting herself the power to change laws outside of the legislature. 

Even if I were to make the naive assumption that Smith is a “good faith actor” in this case, that level of power with no effective check on it remains intrinsically dangerous. It is far too easy to sway one or two people - or even a group the size of our current cabinet that a particular change is needed to a law.  I’ve sat in enough boardroom meetings to understand how one manipulative person with a nasty agenda can turn a room to exactly the wrong decision. 

How long do you think it will be before the various factions that make up the UCP start pushing for motions to forward their various agendas.  For example,  they could decide that legalizing gay marriage was an “infringement” on Alberta somehow, and then demanding that the cabinet amend Alberta laws to prevent the issuance of marriage licenses to LGBTQ+ couples.  

Or perhaps, someone decides that it’s a “bridge too far” that S15 of the Charter guarantees equality for women, and convinces cabinet that women’s rights should be restricted - and only women who are married should be allowed to vote. I wish I was just kidding, but I’ve actually seen arguments from some corners for exactly this.  

Any and all manner of legislative chicanery can be done when you turn the legislative process into something that only takes place behind closed doors.  

If you’re not scared yet, let me draw your attention to legislation that the UCP has already passed, or tried to pass, and let you sit with that: 

1. The Administrative Penalties Act - basically this law strips you of recourse to the courts if you get a ticket for something you think is unjust. It makes police, peace officers, and other officials who can issue tickets “judge, jury, and executioner” - this law is problematic enough on its own. 

2. Conscience Rights - Although this one was eventually defeated, it was designed in such a way as to make it much harder for women and LGBTQ+ people to access healthcare - especially in rural centres where options are already limited. 

Sit with that and consider just how much more dangerous things could become when the Governor in Council can legislate without any kind of discussion in the Legislative Assembly.