The Alberta government seeks to strengthen the Alberta Bill of Rights, which is a sort of mini constitution in Alberta. This is a reaction, in part, to the courts’ abject failure to protect our bodily autonomy and freedoms of speech and conscience under the Canadian Charter of Rights and Freedoms during lockdowns.
Some friends of the free society have cast shade on the proposed amendments however, because Bill 24 would also insert a new “limitations clause.” This would allow the government to deny rights in some circumstances. The argument goes: a right the government can deny is no right at all. Our experience during lockdowns seems to well prove this point.
I would argue the opposite. Like it or not, rights are limited. My right to swing my arm ends where your nose begins. Unless my rights are limited, you have no rights.
If I had an absolute right to free speech, then I could defraud you, spread vicious rumors about you and even plot your murder. Neither you nor the state would be able to do anything about it. After all, to “do something” about my fraud, defamation or conspiracy would be to limit my freedom of speech.
This is obviously untenable in a free and democratic country. The question, therefore, is not whether to limit rights, but exactly how they should be limited and who should set the limits. It is better for our elected representatives to draw boundaries than to leave the task to judges.
The Charter, as drafted, wisely acknowledges this reality in its first section. In section 1 the Charter says that rights can be reasonably limited, by law, if well justified, and if consistent with freedom and democracy.
Is it reasonable in a liberal democracy to limit my freedom of speech by criminalizing conspiracy to commit murder? Of course it is.
Where the Charter has failed Canadians is not so much in its fine words, but in how judges have interpreted and applied them. Courts have made it easier and easier for governments to deny Charter rights — especially where denied by some bureaucrat in the belly of the administrative state.
The Alberta Bill of Rights is no exception. In fact, it is currently far easier for a government to deny your rights under the Alberta Bill of Rights than under the Charter. This is, paradoxically, because the Alberta Bill of Rights does not contain something like the Charter’s section 1.
Alberta courts have concluded that the Bill of Rights cannot grant absolute rights, because that would be absurd. The Alberta Court of King’s Bench, in Ingram v. Alberta, therefore “interpreted” the Alberta Bill of Rights to include an implied, internal limit. This permits violations as long as a government can show a “valid legislative objective!” This is a far lower hurdle than, even, the Charter’s section 1.
It is really no hurdle at all. You truly have practically no rights under the Alberta Bill of Rights as it stands.
To cure this fatal flaw, the government should insert an express limit in the Alberta Bill of Rights which signals to the courts that it is a higher burden than under the Charter. This is exactly what the Government of Alberta now proposes to do.
Time will tell whether the government’s proposed language sends a strong enough signal to the courts that unlike the Charter, limits must be narrow and amply justified.
How might this signal be made louder? While the language of the Charter’s section 1 is nicely worded, it is very general. This assigns to the courts the task of providing the detail, the task of “filling the gap.” We now know with what stuff the courts have filled the gap. So, the legislature must, itself, fill the gap and fill it with as sturdy a material as possible.
The government’s proposed wording is an improvement over the Charter’s section 1, but is still quite general.
I would suggest the government simply tell the courts, far more precisely, when rights may be properly denied — something like I suggest here. While my suggestion is wordy, it is a far shorter read than the multitude of weak court decisions which will otherwise fill the gap.
I completely agree that “even a perfect Alberta Bill of Rights would only be as good as the judges who interpret it.” While a well-worded limitations clause should limit the courts’ freedom of movement and should compel courts to consider facts they may otherwise ignore, unless we start appointing judges who are fierce defenders of liberal democracy, words won’t matter.
Glenn Blackett is a Calgary-based civil rights lawyer working with the Justice Centre for Constitutional Freedoms network of lawyers.
Glenn Blackett – Western Standard
