Why upcoming Alberta Bill of Rights changes are more than symbolic

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Forthcoming and future amendments to the Alberta Bill of Rights will have more than a symbolic impact on certain rights and freedoms, says a constitutional scholar from the University of Alberta (U of A).

Premier Danielle Smith indicated several times over the summer that her government will be introducing at least three additions to the Alberta Bill of Rights soon after MLAs return to the legislature for a new sitting on Oct. 28.

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Those changes have been dismissed by some analysts as symbolic and by Alberta NDP leader Naheed Nenshi as “desperate virtue signaling.”

While the Alberta Bill of Rights has in most respects been eclipsed by the Canadian Charter of Rights and Freedoms, U of A law professor Eric Adams says it can still play a legal role relative to rights and freedoms not specifically articulated in the charter, including property rights.

“The Alberta Bill of Rights is real and it can have legal impact,” Adams said, adding the number of rights affected may grow with any subsequent changes to the bill of rights.

“The extent to which a bill of rights is amended, or altered or expanded in a way to cover ever more rights that are not covered in the charter, you will then expand the range of issues that that bill of rights will now cover.”

Bill of Rights remains a legal factor

A 2009 ruling showed how the Alberta Bill of Rights can have an impact on rights or freedoms that are not explicitly set out in the charter.

In the Lavallee case, Justice Neil Wittmann ruled that a part of the Alberta Securities Act violated the Alberta Bill of Rights by “depriv(ing) individuals of the right to enjoyment of property without due process of law.”

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Wittmann ruled those sections of the act would be rendered legally inoperative, meaning they effectively do not apply.

More recently, in the 2023 Ingram ruling, the applicants alleged the public health measures instituted in the early stages of the COVID-19 pandemic breached the Alberta Bill of Rights. Similar challenges via the charter must reckon with its “reasonable limits” clause which allows rights to be limited under certain conditions.

The Alberta Bill of Rights has no such clause, but Justice Barbara Romaine wrote that the rights and freedoms it describes are real but not absolute.

“A limit to the rights provided by the Alberta Bill of Rights (ABR) must be implied, and that, as with the charter, the breach of any ABR right is subject to a limitation based on a valid legislative objective.”

At least three changes to Alberta Bill of Rights this fall: Smith

As currently written, the Alberta Bill of Rights is a relatively brief document that has been amended several times since being introduced by Premier Peter Lougheed in March of 1972.

Unlike the charter brought in a decade later, the Alberta Bill of Rights is not a constitutional document, applies only to provincially-enacted legislation, and be overridden or amended by the legislature.

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The three amendments Smith announced over the summer are:

• The right to decide over vaccination and all medical decisions;
• The right not to be deprived of property without legal due process and just compensation;
• The right of individuals to legally acquire, keep, and safely use firearms.

The premier’s office has declined to say what other, if any, amendments are coming.

Members of the governing United Conservative Party (UCP) are also set to vote on an amended version of the bill of rights at the party’s annual general meeting on Nov. 2.

The so-called Medicine Hat proposal outlines 22 rights and freedoms including the three Smith outlined in her September video and others including freedom from private or public censorship; freedom to use sufficient force to defend person, family, home, and property; and freedom from excessive taxation.

It also incorporates language from the U.S. Declaration of Independence in positing the right to life, liberty, property and the pursuit of happiness.

Any resolution passed by UCP members is non-binding on the government, though some such resolutions have been made into official provincial policy in recent years.

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