What is happening?
Alberta’s Bill 10 is one of the most far-reaching responses to the COVID-19 pandemic made by a provincial government. The Alberta government, led by Jason Kenney’s United Conservative Party, rushed this bill into law after only two days of debate. This bill gives cabinet ministers the power to unilaterally and immediately enact new laws during a public health emergency with no input from the Legislative Assembly of Alberta. Bill 10 is an affront to the constitutional bedrock of Canadian democracy.
Following a lawsuit by the Justice Centre for Constitutional Freedoms (JCCF) to have the bill declared unconstitutional, the BCCLA was granted leave to intervene in the case. As one of Canada’s oldest and largest civil liberties organizations, we are deeply concerned about Bill 10. This Bill violates the separation of powers between the Legislative Assembly and the provincial cabinet, the constitutional framework that guides how decisions are made by the government, the protection of minority rights, and the principle of democracy itself.
Now, rather than face the courts and defend Bill 10, the Government of Alberta is trying to silence this case by arguing that it is now moot following their announcement that the controversial bill will be repealed in the spring. This non-binding promise will not protect Albertans’ democratic rights during a global pandemic.
Who is affected?
Bill 10 has silenced democratic opposition in the name of combatting the COVID-19 pandemic. The BCCLA supports public health measures to address the COVID-19 pandemic and to protect the human rights of the most vulnerable. However, government responses must be rooted in science and public health needs, with no more intrusions on civil liberties than necessary.
All Canadians have a stake in this case, but none more so than those belonging to systemically oppressed groups. The process of introducing, publishing, and debating bills with multiple readings provides critical features of rights protection for all peoples of Canada, but especially racialized and minority groups by providing them with a chance to make their voices heard.
While Health Minister Tyler Shandro announced that the Government of Alberta will repeal Bill 10 in the Spring of 2021, the damage has been done. This bill has harmed Albertan democratic institutions and has violated the Canadian Constitution, including the Charter of Rights and Freedoms. The BCCLA has urged the Alberta Court of Queen’s Bench to stop this bill now and discourage other governments from enacting similar legislation.
Hearings concerning the Government’s applications to strike this case and the issue of whether JCCF had public interest standing to bring the case were held on February 22, 2021. The BCCLA supports the JCCF in urging the court to deny the government’s efforts to punt this case and therefore allow for a proper examination of the bill’s constitutionality.
The Court gave its oral reasons for its decision on March 31, 2021. Justice Kirker determined that the lawsuit is not the best way to bring the issue before the courts because the government said that they will repeal the law soon. The JCCF is seeking to appeal this troubling decision.
In our view, Minister Shandro’s non-binding promise to repeal Bill 10 cannot be viewed as sufficient grounds to refuse to hear this case, which has been languishing before the court for over a year. Canadians deserve to have the courts determine whether Alberta’s government has breached the Constitution.
Why this case matters
We are very concerned by this ruling. This decision raises the already high bar for public interest organizations to go to court and defend Canadians’ rights against unconstitutional laws like Bill 10. The clock is running out. With the proposed repeal of Bill 10 on the horizon, the Government of Alberta may succeed in getting away with passing and enforcing an unconstitutional law. Bill 10 has already made an impact across the country as other provincial governments have been emboldened to pass their own laws which also violate Canadians’ rights to democratic due process.
We are encouraged to know that the JCCF is seeking to appeal this deeply flawed ruling to the Alberta Court of Appeal. The courts must not use non-binding promises made by partisan politicians as a basis for undermining the ability of public interest organizations to challenge unconstitutional laws.
The BCCLA knows that civil liberties are often imperilled in times of fear and uncertainty. That’s why we’re fighting this unconstitutional law. Governments must be held accountable when they violate Canadians’ rights.