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Jason Kenney's Bill 1 is unconstitutional. Lieutenant-Governor Lois Mitchell should refuse to sign it into law

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Image: Lieutenant-Governor of Alberta

Bill 1 is a breathtakingly terrible piece of legislation.

The bill, given first reading in the Alberta legislature on Tuesday, is called the Critical Infrastructure Defence Act.

Just for starters, in case you missed it, Bill 1 appears to be intended to make protest illegal and criminalize dissent, although its conveniently timed justification allows the government to claim it's merely designed to stop things like railway blockades, which are already illegal.

The bill's drafters sashay blithely into federal jurisdiction -- which includes railway infrastructure and the Criminal Code. The intent, obviously, is to try to create uniquely Albertan and creatively unconstitutional criminal offences -- offences that take direct aim at free speech.

Its scope is astonishingly broad. The government can define pretty well anything it wants as "critical infrastructure." This includes, any "thoroughfare, street, road, trail, avenue, parkway, driveway, viaduct, lane, alley, square . . . or other place or any part of any of them, whether publicly or privately owned, that the public is ordinarily entitled or permitted to use for the passage or parking of vehicles." Even sidewalks!

Don't just take my word for it. Consider the comment yesterday by Simon Renouf, Q.C., a regular reader of this blog and one of Alberta's leading lawyers.

"It's almost certainly unconstitutional," Renouf wrote. "I for one, among many defence lawyers, look forward to attacking this bill in court."

"The government's advisors have presumably told them this legislative attempt to invade federal jurisdiction and quash dissent is unconstitutional, therefore illegal," he added. "Yet the government moves ahead. What happened to the 'rule of law'"?

He continued: "I'm sorry, but streets, squares and sidewalks? Is this a police state?"

Sad to say, that's now a legitimate question.

Bill 1 is unconstitutional in a way that shows deep contempt for the whole concept of the rule of law, which is ironic if not surprising given the way this government and Canadian conservatives in general are always prattling on about the rule of law when someone is doing something they don't like. And not just conservatives, sad to say.

Consider the claims by both Alberta's former NDP government and Kenney's UCP gang that elected officials in British Columbia were somehow ignoring the rule of law because they wanted to go to court to stop the Trans Mountain pipeline expansion. You can argue that they shouldn't have done that. You can argue that they were going to lose, as they ultimately did. You could argue that they were wasting their taxpayers' money and the court's time. But you certainly could not argue they were abusing the rule of law!

Of course, when conservatives in particular use that phrase, they really mean: "You have to do it our way. You just do! Now shut up!"

And if you won't? Well, then Bill 1 is for you! We'll snap our fingers and say the sidewalk in front of the fish and chip shop near your protest is critical infrastructure: go home or we'll fine you $25,000 or lock you up in jail for six months. Well, this is a slippery-slope argument, which is said to be in bad odour among lawyers and judges -- unless they happen to sit on the Court of Appeal of Alberta.

Obviously, there are stronger arguments than mere slippery slopes for people like Renouf to employ against Bill 1 when the time comes.

This legislation is unconstitutional enough, I would suggest, that Lieutenant-Governor Lois Mitchell really should refuse to sign it into law.

I'm not talking about something like the recent campaign by the NDP Opposition to ask Mitchell not to sign Kenney's use of legislation to sneakily fire Lorne Gibson while the election commissioner was investigating Kenney's hinky 2017 campaign for the UCP leadership.

That was a pretty sleazy provision in a law ostensibly about reforming boards, agencies and commissions, but it was a bit of a reach to call it worthy of a vice-regal refusal to sign the bill into law. The NDP's campaign was, at best, quixotic.

Bill 1, however, is a whole different order of offensive. It's not just sleazy, it's a direct assault on the fundamental charter rights of Albertans and all Canadians. What's more, it intentionally undermines the pre-charter constitutional division of powers dating back to the British North America Act of 1867 -- something Alberta is incredibly sensitive about when the shoe is on the other foot, as we have seen with Kenney's recent independantiste maunderings.

Indeed, this is quite close to the circumstances that led Alberta's then-lieutenant-governor John C. Bowen in 1937 to refuse to sign a series of acts passed by William Aberhart's Social Credit government -- which is roughly tied with Kenney's UCP for the title of the most rigidly ideological government in Alberta history -- that brazenly invaded federal jurisdiction.

When premier Aberhart introduced legislation interfering with federal jurisdiction over banks and allowing government censors to sit in newspaper offices (no need for that in Alberta nowadays!), Bowen refused to sign them until they were sent to the Supreme Court for review. In 1938, the Supreme Court made short work of them.

Aberhart is said to have gotten his revenge by shutting off the gas and electricity to Government House, forcing the lieutenant-governor to move. The place has never been a proper vice-regal residence since.

If Mitchell is doing her job properly, she will do the same as Bowen did and refuse to sign Bill 1.

If she doesn't, well, at least we'll have a rare chance to review her performance in an important, if seldom critically examined job.

As for the government, it will be out of luck when the courts rule it is invading federal jurisdiction. There's no notwithstanding clause for that.

If it is determined to violate our fundamental charter rights to protest in streets, squares and sidewalks, and set up picket lines in front of schools and hospitals even, it can still use the charter's Section 33.

But to do so the government will have to show its true authoritarian colours -- not just to Albertans, but to Canadians and others to whom it wants to sell our "ethical oil" as well.

David Climenhaga, author of the Alberta Diary blog, is a journalist, author, journalism teacher, poet and trade union communicator who has worked in senior writing and editing positions at The Globe and Mail and the Calgary Herald. This post also appears on his blog, AlbertaPolitics.ca.

Image: Lieutenant-Governor of Alberta

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