Here’s a challenge for the Redford Government: soldier up and employ Section 33 of the Canadian Charter of Rights and Freedoms, the “Notwithstanding Clause,” if you intend to pass Bill 45 later this week.
Provincial and federal governments have the right under our Canadian Constitution to “opt out” of some provisions of the Charter, including protections in Section 2 of our fundamental rights of freedom of conscience and religion, thought, belief opinion and expression, peaceful assembly and association.
Of course, when you use the Charter’s opting-out clause, Section 33, your intentions are made obvious to all.
Bill 45’s purported justification is to ensure public services such as the sandwich shop at the University of Alberta Hospital in Edmonton “are not put at risk by illegal strikes,” although, as the government’s press release admits, such activities are already outlawed by strong and effective legislation.
It is said here the true justification of Bill 45 and its companion law, Bill 46, is to let the government sneak around its own labour relations legislation to impose contracts on unions no arbitrator would permit.
This, in turn, will help the government balance the province’s books in time for the next election on the backs of front-line employees, as well as stifle any constitutionally protected calls for action, however ill advised, against the government’s unsavoury tactic.
Alberta civil servants have been without the right to strike since they formed the Alberta Union of Provincial Employees in 1977. However, the public sector labour relations law introduced by the founder of the 42-year-old Progressive Conservative dynasty, premier Peter Lougheed, in return gave AUPE members a compulsory arbitration process through which a settlement could be imposed on both parties if a dispute couldn’t be resolved in bargaining. That compromise was later extended to most other provincial public employees, including health care workers.
Since Bill 45’s attack on the association rights of public service members and the free speech rights of all Albertans is patently obvious, and obviously intentional, there is no honourable way for the Redford Government to proceed with this law but to use the Notwithstanding Clause.
Section 33 of the Charter says, “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”
Section 33 also sets out a key five-year limit on this power, meaning any such intentional suspension of a fundamental freedom must be ratified by voters in a general election if it is to continue.
If the government of Premier Alison Redford won’t use the Notwithstanding Clause to declare this law an exception to the Charter, and no member of the Progressive Conservative caucus in the Legislature has the courage or principles to speak up for what is self-evidently the right thing to do in such circumstances, passage of the bill in its present form can only be characterized as a cowardly deception.
Readers of this blog will recall that premier Ralph Klein, who despite his manifest flaws and many policy mistakes was an infinitely more honourable and honest politician than the leaders of this government, had the courage in 1998 to use Section 33 to try to limit damages against the government by victims of the Alberta Sexual Sterilization Act.
This United Farmers of Alberta legislation remained in force through the Social Credit era, when it was amended to permit sterilization without the consent or even knowledge of the subject. It was repealed by Lougheed’s government within a year of its election.
But between 1927 and 1972, hundreds of Albertans were sterilized against their will and often without their knowledge at what was officially called the Provincial Training School for Mental Defectives in Red Deer. Klein’s bill used the Notwithstanding Clause to limit compensation to $150,000 per victim.
The outraged reaction of Albertans, who like all Canadians are fair-minded people, persuaded the Klein Government to quickly drop that ill-conceived legislation like the political hot potato it had become. No doubt Klein’s essential personal decency made it easier for him to admit his original plan did not pass the moral sniff test.
Surely the Redford Government deserves nothing but Albertans’ scorn and defiance if it cannot muster the scruples shown by Klein and continues to pretend the amateurish Bill 45, which is certain to be punted by the courts at great expense to Alberta taxpayers, does not contravene our Canadian Charter of Rights and Freedoms!
This post also appears on David Climenhaga’s blog, Alberta Diary.