When the Government of Alberta last month introduced its amendments to the Alberta Bill of Rights, the Justice Centre for Constitutional Freedom was admittedly underwhelmed. The reconsidered version launched yesterday however, is a considerable improvement and in the hands of judges who respect freedom, may indeed reaffirm the constitutional protections that Albertans expect and deserve.
In our view, the perfect Alberta Bill of Rights would make it extremely difficult for the Government of Alberta to pass a law restricting an Albertan’s freedom of speech, religion, assembly, or association.
It would also require the government to justify — with persuasive evidence, not with unreliable models or repeated assertions — any law that violated an individual’s right to liberty, security of the person, or the substantive right to own and enjoy private property.
The perfect Alberta Bill of Rights would force the government to prove that a freedom-violating law was reasonable, rational, truly necessary, and causing more good than harm and would make it very clear to governments that alarmist projections and other forms of fearmongering do not justify violating human rights.
Finally, the perfect Alberta Bill of Rights would expressly prohibit the violation of rights and freedoms by unelected, unaccountable bureaucrats; freedom-violating emergency measures can be authorized only by a majority vote of the Members of the Legislative Assembly.
The amended version introduced by the Government of Alberta yesterday, takes us in that direction.
However, even a perfect Alberta Bill of Rights would only be as good as the judges who interpret it.
Ultimately, the free society is protected not by the words of a law or a constitution, but by virtuous citizens who understand freedom in their minds, and who cherish freedom in their hearts.
Sadly, we have learned this the hard way from our experience with the Canadian Charter of Rights and Freedoms, which requires governments to justify “demonstrably” (with persuasive evidence, not with fearmongering, speculative models or repeated assertions) any law that violates one or more of our freedoms of expression, association, conscience, religion, peaceful assembly, etc.
In theory, the Charter protects us. But in practice some judges have upheld lockdowns and vaccine mandates as justified violations of Charter rights and freedoms, without even explaining in their rulings why they preferred the government’s evidence over the evidence presented by citizens.
Judges have upheld the violations of Charter freedoms while deliberately turning a blind eye to the lockdown harms that damaged so many people. And they have not required governments to show that their health orders achieved more good than harm. Courts allowed unelected, unaccountable health bureaucrats to issue freedom-violating health orders that violated the rights of millions of people, removing the democratic accountability that would otherwise come through a vote of the people’s representatives.
The case of Beaudoin v British Columbia is an example. Here, the courts refused to even consider the expert evidence brought by the churches, which challenged BC’s complete prohibition on indoor and outdoor worship services — even as bars, gyms, restaurants and cannabis stores were stayed open. As explained by (then) Chief Justice Christopher Hinkson: “if I allowed the religious petitioners to rely upon this purportedly expert evidence, that would permit them to bypass the statutory decision-maker without affording deference to Dr. Henry’s findings on the face of the record before her.”
In other words, even the perfect Alberta Bill of Rights could be twisted into something useless by judges who see government as being like God, who can neither deceive nor be deceived. Judges will never protect citizens from abuse if judges naively see government as all-good and all-wise.
That brings us to November 21, 2024, when the Alberta Government introduced an amendment to the Alberta Bill of Rights to add language that is better than the language found in the Canadian Charter of Rights and Freedoms.
The Charter says violations of rights and freedoms must be “demonstrably justified,” whereas the Alberta Bill of Rights will say (if Bill 24 passes) that restriction on freedoms must be “demonstrably and proportionately justified based on evidence.”
Good! To be justified, restriction on freedoms must be proportionate to the actual benefit realized. Governments must support their laws with evidence, not with shoot-from-the-hip modelling and fearmongering.
These additions in Bill 24 are no panacea or silver bullet. It remains possible for judges with a pro-government bias to approve human rights violations. However, this new language is noticeably different from the language in the Charter, and sends a message to judges that they need to do better job of protecting citizens from abuse by government. Time will tell how courts respond to this message.
This improvement to the Alberta Bill of Rights, now proposed in Bill 24, is worth supporting, all while efforts can continue to make it even better in future. This new amendment is a step in the right direction.
John Carpay – Western Standard
