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CAMERON: Ministers as Kings – Alberta’s Bill 10 a dangerous overreach

In our Debate Feature on Bill 10, Jay Cameron argues that it is an anti-democratic executive overreach, while the UCP declined to defend their bill.

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EDITORS NOTE: The Western Standard asked Jay Cameron of the Justice Centre for Constitutional Freedoms (JCCF) and representatives United Conservative Party of Alberta (UCP) Caucus to participate in the “Duelling Columnist” debate feature on the province’s Bill 10.

The UCP Caucus declined to provide any column in defence of its Bill 10 legislation. As such, Jay Cameron of the JCCF has been given the space of both sides to make his argument.

On March 31, under cover of the sudden fog of coronavirus panic, and to a Legislature working with a skeleton crew of law makers that barely constituted a quorum, the United Conservative Party (UCP) government introduced the Public Health (Emergency Powers) Amendment Act, also known as Bill 10. Before bewildered lawmakers could read and understand the Bill, and before the locked-down public could raise an objection, Bill 10 had become law.  It took approximately 48 hours from the introduction of the Bill to its coming into force.  The vote in the Legislature Assembly of Alberta was 14-7 along party lines, and quorum for the Legislature is 20. 

Bill 10’s emergency powers included two key amendments to the Public Health Act, sections 52.1(2)(b) and 52.21(2)(b), and both are provisions which authorize government cabinet ministers to unilaterally create new laws and sidestep the Legislature when doing so. Today, Alberta’s cabinet ministers can individually write laws on the fly, as though the Legislature’s majority was personally invested in each minister. Interestingly enough, it was the UCP’s Health Minister, Tyler Shandro, who introduced Bill 10, and it is Minister Shandro who — more than anyone else— obtained profound and sweeping individual powers from its passage.

No one in the Alberta public voted to give Mr. Shandro, or other ministers, the awesome power of the people’s elected legislature. The Tories usurped that power in an act of calculated opportunism. 

The constitutional foundations of western democracies developed out of the hard and bloody lessons of history, and centuries of unilateral rule by both monarchial and religious despots. Democracy, coupled with the codification of rights and checks and balances in a constitution, exists as a safeguard against authoritarianism. But Canadians have become alarmingly complacent about the security which the rule of law and constitutionalism have provided for them. The case was similarly dangerous when Prime Minister Trudeau attempted a parallel power grab in Ottawa. Our democratic safeguards are being eroded across the country, yet little outcry is heard. 

Esteemed French philosopher Baron de Montesquieu, in his seminal work, The Spirit of the Laws, noted that “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.”  Montesquieu’s observations on civil governance influenced great thinkers such as Alexis de Toqueville and the drafters of the U.S. Constitution.  Montesquieu’s views helped shape the existing system of checks and balances in Canada. 

In Canada, elected representatives introduce laws which are studied, debated, amended, and often submitted for public consultation and feedback. Those laws, if passed, are implemented by a separate branch of government, called the executive (or cabinet). This separation of powers exists to provide a check on the executive unilaterally making self-serving laws for its own ends.  Bill 10 abolishes this barrier when a declared public health emergency is in effect, and unifies the legislative power during a pandemic in the executives’ cabinet ministers.  

Bill 10 is unconstitutional for a number of reasons, but one primary reason is that the Constitution Act, 1867 bestows power on the provincial legislature (not on individual politicians or on cabinet) to make laws. The delegation of this power away from the legislature as a whole is an infringement of the written and unwritten principles which safeguard citizens from abuse. 

When Albertans began to ask questions about Bill 10, the UCP’s first response was to deny the obvious fact that Bill 10 gave cabinet ministers a new power to write laws and create new offences and penalties unilaterally, without any oversight from the Legislative Assembly of Alberta. The UCP told Albertans that Bill 10 was merely “clarifying” powers which already existed.

A short time later, however, Minister Shandro utilized Bill 10 to— unilaterally— create a new law exactly as warned.  Minister Shandro amended the Public Health Act to authorize the release of “information obtained by the Chief Medical Officer” to “any police service.” Ministerial Order 632/2020 states, “I, Tyler Shandro, the Minister of Health … do hereby order”. Shandro then proceeds to add sections 53(4.2) and (4.3) to the Public Health Act.  The Legislature was not consulted prior to this legislative amendment. No studies were conducted. No debate allowed. The public was not informed or consulted, or even warned in advance. For the first time in Canadian history, a law which was passed by a duly elected democratic legislature was unilaterally altered by a single politician, effectively overriding democracy in an act of executive authoritarianism. Shandro’s new law came into effect immediately upon signing on May 4, 2020. 

It turns out the new provisions of the Public Health Act added by Minister Shandro are broad and poorly worded, which underscores just one reason why legislatures should pass laws, not individual politicians. The new sections are broad enough to allow for the blanket release to police of the records of all Albertans who have tested positive for COVID-19, and probably even the medical records of those who have not. The new law contains no safeguards outlining the use, storage and retention of the personal data by police. 

It is unclear why the names of people who once tested positive for the virus and have recovered should be conveyed to police, or how long this information will remain in the police’s possession. There are no limitations on how the police may use this private and personal information. There is no clause that mandates that the information will be destroyed at a later date. Providing the personal information of patients to police, so that private and confidential medical records can be accessed at police discretion, is in effect a warrantless search without judicial checks and balances, and an alarming breach of privacy rights. Albertans typically have strong rights regarding their personal health data which are codified in the Health Information Act. But Minister Shandro’s new law simply bypasses the Health Information Act.  

In a democracy, the legislature would consider the impacts on privacy and constitutional rights implicated by a blanket release of health records to the police. In a dictatorship, no checks and balances exist on the use of executive power. Minister Shandro’s Order says he is “satisfied” that our medical records ought to be sent to the police, and so that is presumably where they are now.  

Some citizens are probably fine with Minister Shandro’s new powers. Maybe you yourself don’t have a problem with the police having your private medical records, without apparent restrictions on what they can do with them or how long they can keep them. Maybe it was your intention all along to just give your medical records to the police and you just hadn’t got around to it. Maybe you trust the government out of partisan loyalty. 

Perhaps you think Tyler Shandro is much wiser than all of the Legislative Assembly sitting together studying and debating new laws. You do not know him personally, of course, but you’ve seen him on TV, and he seems well spoken, so why should he be compelled to run each new law by the Legislature?  Yes, there are 86 other MLAs the Legislature, but you have the utmost faith that Mr. Shandro is smarter and more capable than all of them put together.  

But maybe, just maybe, you are one of these people who wants checks and balances on government power. You believe in democracy and the Constitution, and you think that should be the law in Canada (because it is), not whatever new rule Minister Shandro makes up.  And you’re upset.  

Who do you complain to? Your MLA? Bill 10 says Minister Shandro doesn’t have to check with MLAs before he changes the law during a pandemic. The Premier? He’s a very busy man who gets thousands of emails every day.The police? They enforce the law, and now Bill 10 says the Mr. Shandro can say what the law is. 

Perhaps you decide to protest the breach of you and your family’s privacy rights by demonstrating at the legislature because you are not sure what else to do. For your trouble, you receive one of those $1,200 tickets that have become so popular with law enforcement. The Sheriff informs you that Minister Shandro says you should be at home, quietly socially distancing. 

There is one last check on this extraordinary consolidation of power – short of the ballot box – and it lies in the third branch of government—the judiciary. The court challenge to Bill 10 is ongoing. 

Jay Cameron is a lawyer with the Justice Centre for Constitutional Freedoms

Opinion

JAY HILL: Lend Wexit your vote

Guest columnist Jay Hill writers about the need for independence, and taking a chance on Wexit.

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Ask any Westerner and they can likely recite from memory a long list of grievances of how Central Canada has misunderstood and mistreated the West. And continues to do so. Some are historical dating back decades, some much more recent.

Many folks – like myself – have reached the breaking point.  The realization that no matter who we elect to govern us, nothing much will change in this regard.

‘The system’ is rigged against us and we must break the cycle that sees all federal governments -regardless of party – focus on appeasing voters in Central Canada to the detriment of the West.

So, we all know why we’re frustrated and even angry, but what is it that convinces some of us there can be a brighter future that Central Canada continues to deny us?

I believe it is because it is not only logical, but it’s the belief we can do, and be, so much better.  And it is deep within each of us. New immigrants have come here to the West for decades, from lands around the globe, regardless of their race, creed or gender identity.  They’ve been made welcome and with those who preceded them, have worked hard to build a future for themselves and their families. Not because there was a guarantee life would be better here, but because they dreamed of a better life and never gave up on working hard to ensure it.

I believe that dream is still very much alive and well in the hearts of each of us here in the West. It is part of what makes us distinct, even unique, from the majority in Central and Eastern Canada. We are different. It is time to reject the status quo, unconditional federalism that has shackled our economy and forced unfair laws upon us. 

Even with all the logical, common sense arguments for breaking free of this abusive relationship with the East, are you still reluctant to “hitch your wagon (reputation) to our team?” “What if it’s taken over by a bunch of ya-hoos and self destructs like so many independence movements before,” you may well ask. Believe me, the eight of us on the current Wexit Board share your concern, but that will not deter us from working as hard as we can to ensure that fate does not befall Wexit.

If seeking independence from the ROC (Rest of Canada) is still a bridge too far for you, then I respectfully ask that you consider lending us your vote… just once. Take a chance for just one election.  Let’s see what can happen if we send some MPs to Ottawa that will only vote for legislation if it’s good for the West.

Not MPs who must constantly weigh their support, or opposition, based upon whether it may enhance or harm their party’s chances in Toronto, Montreal or Ottawa.

We cannot, must not, keep repeating what we’ve done in the past expecting a different result… that’s the definition of insanity. Just imagine if the early Reform MPs of 1993 – myself included – had been demanding “The West Wants Out” rather than “In”, how much further we would have progressed towards independence over the past twenty-seven years.  

I believe in the succeed against all odds, hard working, entrepreneurial pioneer culture that built the West. Pioneers carved out their futures, and ours, with their bare hands. Like others, I worked alongside my father and brothers clearing and breaking raw land to become a field of golden wheat. That’s right, my generation… not people 400 years ago. Westerners know first hand how to overcome adversity, we’re just tired of trying to overcome it from our own federal governments and so many folks east of Manitoba.

If this describes some of your own thoughts and feelings please consider joining us in working for the brighter future we all know is possible.  

Jay Hill is the Interim Leader of the Wexit Canada Party

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Opinion

STRANKMAN: Do our politicians represent their constituents, or their parties?

Rick Strankman writes from his experience being whipped to vote as party bosses told him to.

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Last winter, at an agricultural estate planning course, a speaker commented, “Many large problems occur after the death of a significant farm family leader. This results from ‘unspoken expectations’ from other family members”. 

Similarly, many elected officials have little to no understanding that their constituents have similar, ‘unspoken expectations’ that might not be voiced out loud. 

In 2012, as the Wildrose Party charged towards the spring election, one of the key platform promises was electoral recall. For some reason, many of the same people that professed at that time to believe in this form of accountability from elected representatives, have been distracted by the lure of political power. A score of once loud democratic crusaders now “look the other way” as they see unaccountability, patronage, and nepotism in their own ranks. Power – and the lure of power – can do this. 

After more than a year in power, this has set in with many in the UCP government, as they develop a blind-spot to the issues that got them there in the first place. It’s unclear if it’s the obstructed view one gets from sitting on the government side of the house in the legislature, or whether it comes from a lack of proper perspective. MLAs serving in opposition will understand the frustration to getting non-answers to often very real questions. This, more than most things, can quickly cure those self-serving blind-spots.

The legislature is an eye-opening experience, particularly for anyone that has never watched question period. The open disdain for democracy that many former and current MLAs have witnessed in the house, is appalling. In my own time, I personally witnessed government ministers loudly heckling when an opposition member requested that they answer a question. 

“That’s why they call it ‘question’ period and not ‘answer’ period!’

Many of those same self-congratulating ministers now sit in the NDP opposition benches, wondering why the UCP ministers across from them do much the same.

On more than one occasion, I was warned by acquaintances that “the closer people get to the power, the more they lose their minds.” This is a phenomenon not exclusive to the UCP, NDP, or even Alberta, or Canada. It is a natural process that plagues governments everywhere.

The lack of any meaningful representation and direct accountability is the single largest contributing factor in what seems to be an aura of discontent brewing in the minds of many Albertans right now. 

The fear to step out and speak up in opposition to one’s own party is something that I experienced and witnessed over my elected years in the legislature. As an elected representative, it is your moral – and I would argue fiduciary – responsibility to advocate on behalf of the taxpayers that entrust you with their democratic rights, regardless of a political party’s position. 

The examples are few and far between, but former federal Liberal MPs, Jody Wilson-Rabould and Jane Philpott, along with Alberta’s own MLA Drew Barnes, showed the gut-wrenching courage it takes to actually represent their constituents first, in the face of party discipline. 

A common statement I’ve heard more and more every day is, “it doesn’t matter who you elect, they’re all the same,” which is becoming harder to argue against. Their actions often reflect the conformity that, at times, is in direct conflict with the best interests of the constituents they represent.

One of the leading contributing factors to this is the Sword of Damocles that party leaders hold over their MLAs and MPs local nominations. In the American primary system, rogues like libertarian Ron Paul and socialist Bernie Sanders can still win their local nominations without the blessing of their party’s leaders. In Canada’s party systems, the leaders have the ability to rig nominations – or disqualify candidates outright – that they consider uncompliant. 

After the Wildrose was merged into the UCP before the last election, we were routinely whipped by the new party’s leadership in voting against our own consciences, and our constituents’ interests. When the NDP proposed legislation to attack the right of pro-lifers to protest, we were told we were not allowed to speak to, or even vote on the bill. When the NDP introduced regulations to impose effective supply-management over oil production, we were told that we had to support it. 

So, what have I learned in the last two decades from my time as an activist, politician and now recovering politician? That peoples’ expectations are simple; they want you to show up with your work boots on, and ready to do battle directly on their behalf.

Now I understand why I was warned about what happens when people get closer to that power.

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Opinion

WAGNER: Alberta isn’t a part of Trudeau’s “post-national state”

Michael Wagner writes that while the Liberal conception of a non-national state might apply in the East, Alberta has a very different idea of what it is.

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Shortly after his election as prime minister in 2015, Justin Trudeau told the New York Times, “There is no core identity, no mainstream in Canada,” and that Canada is “the first post-national state.” The Times rightly explained that Justin’s view makes him “an avatar of his father’s vision.” The social engineering of Justin’s father – Prime Minister Pierre Trudeau – has been so successful that the historical notion of what it means to be Canadian has been increasingly eviscerated since the 1970s. Together, the Trudeaus have brought the idea of Canadian identity to its knees.

Large numbers of Eastern Canadians vote for that “no core identity” and “post-national state” nonsense. That’s why Trudeau II is prime minister. However, Albertans have a very different perspective than their Eastern countrymen, and this is reflected in a different political identity.

As mentioned in a previous column, Professor Barry Cooper has argued that a community’s stories form an important part of its identity, and history constitutes a key element of those stories. He wrote, “History, too, is a source of identity; historical literature also shows who we are and where is here because it recounts what was done and said.” The West has its own stories and history, distinct from those of Eastern Canada, and this contributes to the West’s unique regional identity.

Besides Cooper, Alberta has another prominent conservative thinker who reflected on Western identity – Ted Byfield. Byfield, best known as the founder of Alberta Report and its sister publications, also initiated the creation of a 12-volume history set called “Alberta in the 20th Century.” This project was surprisingly successful and the proceeds helped to keep the Report magazines afloat for a time.

However, the success of this popular history series was counterintuitive. Alberta is a small market, and the volumes were rather expensive. Why did they sell so well?

Byfield attributed the success, in part, to the emergence of an Alberta identity. In a January 11, 1999, Alberta Reportcolumn he wrote, “There is gradually developing in Alberta a very powerful provincial identity. Perhaps it’s because we have so often been called ‘redneck’ by the rest of Canada, perhaps because we have so often resisted trends in the rest of Canada, perhaps because we live closer to our frontier origins, perhaps because from our very beginning almost everything we produce must be sold on a world market, not a protected local one. And, finally, perhaps because our national identity has become so confused of late that it’s hard to define what being a Canadian is supposed to mean. There’s little doubt what being an Albertan means, and this has a deepening significance. That, we believe, is one of the chief reasons for the success of the history series.” 

Here, years before Justin Trudeau declared that the country had “no core identity,” Byfield had already recognized that “it’s hard to define what being a Canadian is supposed to mean.” At the same time, however, there’s “little doubt what being an Albertan means” – and his Alberta history series was deliberately intended to strengthen that identity as well.

In his foreword to the first volume of the series, The Great West Before 1900, Byfield explained his purpose for producing these books. He began by recounting a discussion he had with a young man from Texas. Byfield asked him why Texas was known as the Lone Star State. The fellow replied that Texas had been an independent republic for about ten years and then had a war with Mexico, which is when the famous Battle of the Alamo occurred. Most interestingly, the Texan had said that’s when “we” had a war with Mexico and then “we” joined the United States. As Byfield explained, “Utterly unconscious of what he was doing, this young man identified himself with events that occurred nearly a century and a half before he was born. It wasn’t what ‘they’ did, it was what ‘we’ did. Whatever happened to Texas then, he was somehow involved in it.”

Albertans and other Canadians don’t often talk that way and Byfield believes that’s because we “do not identify with our own past.” For us, what happened in the past is what “they” did, not what “we” did. Some people see this as a positive because, in their view, we should have a cool and dispassionate approach to the past rather than an enthusiastic commitment to our province (or country) and its accomplishments. Those people are concerned about “the dangers of jingoism and blind tribal loyalty.” As Byfield explained, however, that perspective has led to a form of rootlessness and lack of belonging which is opposite of the mentality of the young Texan noted above.

Byfield wanted his history books to correct the erroneous perspective that effectively divorces us from our own history. As he wrote, “Candidly, we want the Albertans who read them to come away from them saying ‘we’ not ‘they.’”

Byfield believes Alberta’s history is worth learning. And as we study it, “we may find we come away with a certain assurance, a strange sense of common purpose, a feeling of continuity with our past. No longer are we homeless. We know now where we live. We belong.” This is precisely what Cooper meant when he wrote of the importance of history to a community’s identity – it shows us who “we” are. 

Justin Trudeau says that Canada no longer has a “core identity.” Well, as Ted Byfield so clearly pointed out, Alberta still has an identity – one that needn’t be lost to progressive dreamers in Ottawa. For those who would like to learn more about it, there’s no better place to start than his “Alberta in the 20th Century” history books.

Michael Wagner is columnist for the Western Standard. He has a PhD in political science from the University of Alberta. His books include ‘Alberta: Separatism Then and Now’ and ‘True Right: Genuine Conservative Leaders of Western Canada.’

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