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Alberta's Bill 1 is bad law, bad theatre and an unconstitutional attack on the fundamental rights of citizens

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Jason Kenney giving a press conference in March 2020. Image: Government of Alberta/Flickr

If the passage of Bill 1 by the Alberta legislature last month demonstrates anything, it's the contempt in which Premier Jason Kenney and the United Conservative Party hold the rule of law.

Kenney and his well-behaved UCP caucus know that Canada's Constitution is the supreme law of the land. Not that Canadian Conservatives have ever liked it very much, especially the Canadian Charter of Rights and Freedoms that was arguably prime minister Pierre Elliott Trudeau's crowning achievement when he made it possible to stitch Canada's original British-made constitutional documents into a truly Canadian thing in 1982.

Kenney and the UCP know perfectly well their so-called Critical Infrastructure Defence Act is unconstitutional and unlikely to survive a challenge in the country's courts -- which, again to the irritation of the current generation of Canadian Conservatives, remain impartial, independent and apolitical.

The cabinet has certainly been so advised by the government's own competent lawyers, although the problems with the bill are plain enough you don't have to be a "trained lawyer," as they sometimes say of our justice minister, to know it.

Premier Kenney and the UCP have chosen to ignore this, though, confident that they can use the law unconstitutionally now to suppress free speech and free association to help achieve their most controversial goals. They doubtless reckon that later they can score a few points with their base by complaining about "activist judges" meddling with their plans.

Alberta Liberal Leader David Khan provided a simple and useful primer on the key problems with Bill 1 in a Twitter thread on Wednesday.

In addition to his political role, which of necessity must happen outside the legislature, Khan is a constitutional lawyer specializing in Indigenous rights issues.

He didn't mince his words in his tweeted critique of the Critical Infrastructure Defence Act, which was passed by the legislature on May 28 but has not yet been proclaimed into law. It is, he said, odious, draconian and authoritarian.

"It criminalizes peaceful public protests/marches down city streets -- like the #BLM protests in #YYC yesterday," he tweeted.

It does this through classic of legislative overreach -- far more serious than in the federal gun-control legislation Alberta's UCP MLAs have been excoriating with that very term.

It attacks Albertans' free speech, free assembly and free association rights to gather in public to protest by defining "critical infrastructure" too broadly -- making it mean essentially anything the cabinet decides it wants it to, including city streets and sidewalks.

Then it slaps heavy penalties anyone participating in a crude attempt to criminalize lawful protest.

"When #Bill1 becomes law *ANYONE* participating in (or even helping organize) peaceful freedom of assembly/speech protests/marches on city streets (even on sidewalks!) *FOR ANY REASON* could be *ARRESTED OR CHARGED* & face $25000 in fines or SIX MONTHS' JAIL," Khan tweeted.

"This *CRIMINALIZES* Albertans' Charter rights of freedom of thought, belief, opinion & expression, peaceful assembly & association, whether expressing themselves or protesting on private OR *PUBLIC* land."

Arguing Bill 1 is likely to succumb to a charter challenge, Khan continued: "However it will take years to challenge #Bill1 in our courts–& meanwhile it puts a dangerous chill on Albertans' rights to express themselves & protest peacefully about important causes."

There's much more, and I recommend taking the time to read the rest of Khan's comments.

As the government knows, existing laws are up to the task of protecting critical infrastructure in Canada. But to rely on laws that that are within the limits in our Constitution is to honour the rule of law.

Naturally, there is an element of posturing for the UCP base as in most everything Kenney does. More importantly, though, it's clear he wants to circumvent the Constitution's protections of our fundamental freedoms for as long as he can get away with it.

A government serious about the rule of law would have sought judicial review of the draft legislation from the Supreme Court of Canada before ramming it through the legislature. That is what the top court's reference procedure is for.

A government more serious about the rule of law could also have acknowledged that the law was in violation of the fundamental rights provisions of the charter and expressly invoked Section 33, the notwithstanding clause, as Quebec did in its religious symbols law.

The UCP could still do that by amending Bill 1 to add a Section 33 declaration.

But that would require them to show the courage of their convictions and respect the rule of law. It would also show the country and the world that despite Kenney's constant tut-tutting about "dictator oil," Alberta is on its way to being a kind of dictatorship itself.

Of course, this isn't about writing good laws that Alberta needs. As Khan pointed out, Bill 1 is redundant, unneeded and basically stupid.

Bill 1 is about domination and division. And when the court strikes it down, it will be an excuse for Kenney to puff himself up and whine about unelected judges.

With the UCP, instead of good government we get bad theatre. No wonder, as the polls show, the audience doesn't much like our leading man any more.

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: Government of Alberta/Flickr

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