I recently appeared on The Lavigne Show with Jason Lavigne and Leighton Grey to discuss the amendment to Alberta’s Bill of Rights: Bill 24. Although this is happening in Alberta, it has repercussions in the Canadian legal landscape. The principles we discuss can be applied in much of the rest of the common law world.
As I mentioned in my previous article, the Bill contains some flaws and is missing some opportunities. I’ve drafted my own proposal to address those issues, which you can read here:
The following excerpt is from my discussion with Jason and Leighton which goes deeply into the matter at hand. You can watch it above, or view the full episode here.
Jason Lavigne: “What is fundamentally the purpose of a Bill of Rights or a document like this? Is it to grant rights to citizens or recognize their rights? And what's the difference between the two of those?”
Bruce Pardy: “Yeah, it's a very good question. There's an irony or a paradox here.
Leighton referred to legislative supremacy. That's an idea that he and I have a great deal of agreement about. But here's the irony or the paradox of a Bill of Rights.
What a Bill of Rights does is take power away from the legislature and gives it to the courts.
In other words, the legislature is telling the courts to supervise the legislature. If you had no Bill of Rights, then the legislature could do whatever it wanted, all the time. Under the Charter, courts review statutes and sometimes say “Well, the statute violates this right given in the Charter. And it's not a reasonable limit, and therefore we're going to strike down the statute.”
The statute is something that the legislature produced. So it's sort of a weird sleight of hand here. If you really believed 100% in legislative supremacy, then you wouldn't have a Charter and you wouldn't have a Bill of Rights. You wouldn't have any entrenched rights of any kind. Because those rights enable citizens to go to a court, and challenge something that the legislature has done that they don't want it to do.
So what we're really trying to do with either a Bill of Rights like the Alberta Bill 24, which is a statute, or the Charter, which is a part of the Constitution (and I'll get to that distinction in a minute) is instruct the courts to supervise the legislature.
That may sound weird, but that's what it is.
Bill 24 and the Charter are two very different instruments even though they kind of look the same. Bill 24 is going to be a statute. The Charter is part of the Constitution.
As part of the Constitution, legislatures cannot, number one, change the Charter on their own.
Number two, they can't violate the Charter, with a couple of exceptions.
The couple of exceptions are, number one, the Charter, as Leighton alluded to, has section one, which allows reasonable limits on the rights. In other words, it gives a tool to the courts to decide that, on particular occasions, that a statute or a government action is okay even though it has violated a Charter right. That's the first one.
The second one is that, as people may know, the Charter has a notwithstanding clause which allows a legislature or parliament to pass a statute notwithstanding the Charter.
Other than those two exceptions, the Charter cannot be breached by a legislature in Canada. A statute, on the other hand, like Bill 24 can be changed or repealed at any time by the legislature that produced it.
So if, for example, next year the Alberta legislature passes Bill 24, four years from now, if you happen to have a different government, that Alberta legislature can come in and repeal Bill 24 or amend Bill 24 just like the present government is attempting to do right now.
So using a statute, there is no way to create ironclad rights or rules that prevent a future legislature from doing whatever it wants.
What you're trying to do, instead of creating ironclad guardrails in a statute, is create a political disincentive. If you create a Bill of Rights or amend a Bill of Rights that declares certain rights, freedoms, values, or as the case maybe, then have made something that hopefully the public will agree with and sign on to and value. And then it becomes more politically dangerous for a future government to go back on that and say, well, you know, we're going to get rid of it or we're going to violate it or we’re going to change it. They can do as they wish, but if it's working, that will happen at a political price.
The other thing that the statutory version of this can do is create a more meaningful guardrail against executive action. And by executive action I mean cabinet, I mean ministries, I mean departments, and agencies, and commissions. In other words, not the legislature.
The legislature always has its power to change, to repeal, to legislate around it. But less so with the executive branch. The executive branch takes its instructions from the legislature but often they are a world unto themselves and they go off and do whatever they want. And so if you had the Bill of Rights, then you would have at least the possibility that a court applying that document would apply it reasonably strictly to executive action when it was challenged.
So you have those two purposes. Number one, to create a political guardrail against future legislative action. And number two, to create something of a legally enforceable guardrail against executive action that is not explicitly authorized in a statute.
If you can achieve those two things then you've done something.
It is false to believe you can do more than that because of the nature of the instrument.
And that raises this question: If those are the limitations of a statutory bill of rights, then why not make this constitutional?
And that's possible to do.”
“Under the Constitution Act 1982, the legislature of each province can legislate changes to the provincial constitution. So if the Alberta legislature wished to do so, it could make the Bill of Rights part of the Alberta constitution.
That has advantages and disadvantages. The advantage first is that it's symbolic, it's a constitution now, it's not just a statute. That places it above the other statutes that might come by in the future or for that matter, the ones that are existing. You've got a clear hierarchy now. The bill of rights is above the rest of the statutes. That is not clearly the case if it's just a statute.
So that's good.
On the other hand, because the legislature under the Constitution Act 1982 can change the constitution of the province, that means that a future legislature can do the same thing. So if one legislature enacts a bill of rights as part of the provincial constitution, then the next legislature can say, "No, we don't agree" and take it away again. So you've got the same problem there as you do with a statute.
A third difference, and this may not matter to anybody but me, but one of the things that I would like the statutory version to say, is that it is going to invoke the notwithstanding clause from the Charter. I know this sounds bizarre, but let me explain it.
Our Charter outlines, as people will know, basic rights that every individual is supposed to have. Over time, the meaning of those rights, in my opinion, have been twisted. And now, rather than being a roster of rights and freedoms that protect you against government intervention, it now stands almost, I don't want to overstate this, but in some respects, it stands for the reverse. I can cite you sections and so on in which the meaning that I would have expected the sections to carry is now not the meaning at all. So if one part of the project here in Alberta is to establish a Bill of Rights that establishes rights that mean what you want them to mean, as opposed to what the Charter rights now mean, then you have to let it work without interference from the Charter.
And that means you need the notwithstanding clause.
The notwithstanding clause can be invoked in a statute. But I'm not sure that it can be invoked in a constitution, a provincial constitution. So if you went that route, you might not be able to invoke the notwithstanding clause. So you've got pluses and minuses of both approaches. Neither one is airtight, neither one will create ironclad rights that cannot be breached. The bottom line is either statutory Bill of Rights or a Constitutional Bill of Rights will give power to the courts.
If you want that power to be abridged, then it has to be worded very specifically and very precisely, very carefully. And even so, the courts may ignore what you've said as they did largely under the Canadian Bill of Rights, and have done so under the Charter.
So we’ve got a lot of traps here and it's very important to think them through.”
Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.
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