Calgary·Analysis

Opponents of Alberta's rapid-fire legislation turn increasingly to the courts

Legal challenges are piling up as the UCP government moves aggressively with a host of new laws.

Legal challenges are piling up as the UCP moves aggressively with a host of new laws

Jason Kenney's government is facing more legal challenges to its legislation than the previous government saw in its four years in power. (Jason Franson/The Canadian Press)

From a bill that gives sweeping powers to cabinet ministers to a bill that targets protest, Alberta has not only seen significant changes introduced by Premier Jason Kenney's UCP government, it has also seen more of its legislation challenged in court, with some opponents even alleging the new laws veer toward "authoritarianism" and "dictatorship."

The government is currently facing legal challenges against its public sector wage deferral act (Bill 9), its critical infrastructure defence act (Bill 1), its public health act (Bill 10), its inquiry into the funding of environmental organizations and its unilateral tearing up of the master agreement with Alberta's doctors

Bill 32, the restoring balance to the workplace act, which passed in the legislature on the evening of July 28 and affects numerous labour and workplace regulations, will also face a challenge once it's proclaimed, according to the Alberta Federation of Labour (AFL) and the Alberta Union of Public Employees (AUPE).

The UCP has been in power for less than a year and a half.

Over its four years in office, the previous NDP government faced a grand total of two legal challenges — one over gay-straight alliances in schools and another over its policy to place extra costs on out-of-province beer. A third, launched by B.C. over so-called "turn off the taps" legislation, as part of a pipeline dispute, never materialized because the bill never became law.

Eric Adams, professor and vice dean at the University of Alberta's Faculty of Law, says constitutional challenges are "part of a healthy democratic system," allowing voices outside the legislature to challenge and confront laws. 

But there can be a tipping point. Although he hasn't added up the precise numbers and compared them to past years, Adams says it's clear from the sheer volume over such a short period of time this government is facing what he calls a great deal of constitutional litigation.

"I suppose there is a point where you might say that if a government is passing laws that are clearly unconstitutional, you may begin to wonder if that is providing good governance to the public, and I'll leave that for people to decide what side of that line we are on," he said. 

For those embroiled in legal fights with the government, however, it's not the number of cases they're focused on, but the substance of the issues.

The opponents

Jay Cameron, the litigation manager for the Justice Centre for Constitutional Freedoms, doesn't mince words when talking about the UCP's public health act (Bill 10), which was proclaimed into law in the midst of the pandemic and gave sweeping powers to cabinet ministers to proclaim legislation without oversight.

"What the Kenney government has done with Bill 10 for the first time in Canadian history — I'm not aware of any other instance where this has occurred — they have taken the enormous power of the legislature and they have transferred it to one minister," he said.

Health Minister Tyler Shandro introduced Bill 10 in the legislature during the pandemic. (CBC)

"It's a power grab. The word dictatorship sounds like too strong of a word, but regarding Bill 10, it is not too strong of a word. It is the establishment of a ministerial dictatorship."

The Justice Centre, which has a strong Christian-conservative bent, says there are applications pending from various intervenors to join them in the fight against the legislation. 

He says the law is "an act of defiance of constitutional norms and the rule of law" and it's egregious that it was "rammed" through the legislature in less than 48 hours. 

"I can't speculate on why they did it, but power is attractive and doing what you want with a streamlined process to further your own ends is always going to be attractive to people who are in power," he said. 

That sort of antagonism toward recent legislation isn't isolated to the Justice Centre. 

The unions

Guy Smith, president of the AUPE, which is challenging the critical infrastructure defence act (Bill 1), says the UCP government seems "bound and determined to use the power of the state to crush any sort of dissent and opposition and make it illegal."

"We're slipping into authoritarianism in this province," said Smith. "And it's very, very concerning, not just to unions or workers, but it should be to all Albertans who really cherish their freedoms and their freedom of speech and their freedom of association."

AUPE president Guy Smith accuses the Alberta government of trying to suppress dissent. (Dave Bajer/CBC)

This act, again, gives broad powers to the government.

It levies steep penalties against any protesters that interfere with infrastructure the government deems to be critical — a term that is broadly defined by the act.

"We believe it's fundamentally violating the constitutional rights of workers, in particular, but citizens in general, in terms of their ability to peacefully protest where they deem appropriate to make that point and to oppose government actions that we find damaging," said Smith.

He said Bill 32, which, among other things, removes the ability of striking workers to prevent entry to a workplace with a picket line, adds to that crackdown and will also be challenged. 

The AFL has already launched a campaign against the bill and says all 25 of its affiliated public and private sector unions support a legal challenge against the legislation. 

Lengthy cases

Smith and Cameron both said legal challenges can take years to make their way through the court system, allowing the government to carry on without repercussion in the meantime.

"The reason they're doing it is because they want to take those rights and freedoms away and they know that they will be challenged in the courts and may very well not be successful, but by the time the court established that, the government has done what it's intended to do, which is intimidate and suppress any opposition or dissension," said Smith. 

"So they would deem that being successful."

About 20 demonstrators set up the blockade across CN's main rail line in west Edmonton in February, in support of the Wet'suwet'en hereditary chiefs in opposition to a natural gas pipeline project in British Columbia. (Craig Ryan/CBC)

Smith said the AUPE will be taking to the fight to the streets and directly challenging, or violating, the law as the case makes its way through the courts. 

When it comes to the public inquiry into the funding of environmental organizations that the UCP government launched last year, Ecojustice recently filed an injunction to halt the process until a court rules on the inquiry's legality. 

Government response

A spokesperson for Alberta Justice Minister Doug Schweitzer was asked if the government had records about how many legal challenges were ongoing and how many were faced by past governments. He didn't answer the question.

"Any legislation in any jurisdiction across Canada be challenged, as can most municipal by-laws or the decisions of many administrative bodies," Jonah Mozeson wrote in response. 

"It is not uncommon for special interests to pursue court challenges when they fail to directly persuade voters."

When asked again about records on the number of cases, he said the government "doesn't maintain such a list"

He then stopped responding to follow-up questions and interview requests. 

Former Alberta Minister of Justice and Solicitor General Kathleen Ganley, said the government should know how many legal challenges it's facing. (Peter Evans/CBC)

Kathleen Ganley, the former justice minister with the NDP, said although it might be accurate to say the government does not maintain a list, per se, it certainly has access to those records and should be able to say how many challenges are currently underway. 

The government has defended its legislation and legislative agenda in the past. 

It has argued that giving powers to cabinet ministers to create laws was needed in case the pandemic prevented the legislature from sitting, although even Premier Kenney said concerns were justified and he briefly considered amending the Bill 10, before neglecting to do so. 

The government has also said ending the paralyzing effect of some protests — including those that shut down rail lines across the country earlier this year — were needed to get Alberta's economy humming once again. And it defended its changes to the power of unions, describing them as reversing pro-union legislation passed by the previous NDP government.

The courts have also become an avenue for governments, including the current Alberta government, to challenge rules beyond its borders.

The UCP has gone to court to fight the federal Bill C-69, which amends environmental review regulations, as one example, and has created a litigation fund to help those who support oil and gas projects to go to court. 

What's happening?

Adams, with the U of A, speculates that there are two central reasons for the increase in legal challenges: a swift ideological shift in the government and an election pledge from the UCP to move fast and make significant changes.

He says the pace at which the government is operating helps them paint a picture of success for their supporters, while working to "overwhelm the opposition and those members of the public or media that would be critical of those initiatives."

On the legal front, Adams says the government is not afraid of confrontation with organized labour and that freedom of association under the Charter is one area of the law that has been developing "most rapidly" over the past five to 10 years. 

Going after labour relations, collective bargaining and the right to protest was inevitably going to be challenged, he says. 

"So you add that all up," he said, "and you have a government that's not afraid to face their opponents in court, you have a mobilized labour movement that's prepared to fight for their rights through litigation, and that's going to make for a fairly litigious first few years of this government's time in office."

Clarifications

  • A previous version of this story failed to mention a legal challenge against Bill 32 that will be launched by the Alberta Federation of Labour.
    Aug 07, 2020 11:23 AM MT

About the Author

Drew Anderson is a web journalist at CBC Calgary. Like almost every journalist working today, he's won a few awards. He's also a third-generation Calgarian. You can follow him on Twitter @drewpanderson. Contact him in confidence at drew.anderson@cbc.ca. Signal contact upon request. CBC Secure Drop: www.cbc.ca/securedrop/

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