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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

BYFIELD: An open letter to Jason Kenney

Vince Byfield writes that the UCP risks losing power if it does not let Albertans vote directly on its future.

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Editors Note: The following guest column is an open letter from Vince Byfield

Dear Premier Kenney,

A recent Alberta poll showed the NDP tied for support with your UCP at 38 per cent, and the remaining 24 per cent broken into a variety of smaller parties, several of them sovereigntist. It appears from this poll that your unification of the right is unravelling, with some Albertans now turning to independence, and some to socialism. 

The fault of this splintering of the right falls squarely on your shoulders, and your refusal to explore and explain to Albertans all of the political options available to them. 

Instead, your decision to schedule a non-binding referendum on equalization two-and-a-half years after your election just isn’t good enough. You’re moving too slowly, sir. You have to do more, and you have to do it now. That’s what you were elected to do, and with each passing week you are wasting your mandate. Your base is now abandoning you, and you risk re-electing the NDP. Your foot-dragging carries the very real risk of Alberta falling into a socialist oblivion from which it may never recover. 

All because you are not doing the right thing for Albertans. Clinging to a confederation that is so unbalanced, so unstable that it has to rob Albertans en masse to bribe Quebecers to stay in Canada is madness. And yet this, Premier Kenney, is precisely what you are perpetuating with your procrastination. Wasting precious time like this effectively buries our children and grandchildren with $200 million more crippling debt every single week. 
Enough is enough. This must to stop. By continuing to do nothing constructive to correct Alberta’s biggest grievance, conservative Albertans are left with no choice but to chart a future with someone who will.

As I see it, Albertans have three options: one, remain in confederation; two, become an independent nation; or three, become Americans. Yet of those three options you support the first, dismiss the second, and ignore the third. Why is that? Why do you appear to be going to great lengths to hide the third option from Albertans?

We have tried and failed with option one. We have been a part of confederation for 115 years. There are clear inequalities which we have endeavored earnestly for decades to repair. Time and time again, the rest of Canada has rejected us. Now they don’t even bother to respond. It’s clear to any Albertan with any semblance of common sense that further attempts to work within option one is futile and hopeless. Ottawa politicians are tired of listening to useless whining, and quite frankly, so are Albertans.

Option two is by no means the cure all. Becoming an independent nation of four million souls surrounds us with one nation ten-times our size (the rest of Canada, now angry at our departure) and the other a hundred-times our size (the United States, now self-sufficient in oil and protectionist). History shows us how large nations typically treat much smaller ones, and it is not pretty. Yet, in spite of this dismal future, many Albertans are now so mad about Canada that they see independence as their only recourse. They believe this because their leaders – like you – are not informing them of the third option. 

You promised transparency in your government, but then you choose to black out 134 pages – or 90 per cent – of the Fair Deal Panel’s documentation. The idea of conducting a public inquiry and then refusing to let the public see what it found is confusing a great many of your supporters. It is clear you are hiding something. What are you so desperately trying to keep away from Albertans? Why was the third option not even discussed? 

When Albertans carefully consider all three options – when the fog of anti-American rhetoric is given time to clear – becoming part of the United States stands out as the only really sensible solution.

Here is the roadmap to Alberta statehood as I understand it. First, we must hold a referendum on independence. The United States cannot recognize or negotiate with Alberta until we sever ties with Canada by having the majority of Albertans vote in favour of independence from Canada. This referendum essentially serves as a declaration of independence. 

The biggest benefit of a successful independence referendum is that it effectively serves notice to Ottawa that the equalization and other transfers are over. The Canadian government and its revenue agency would no longer have any standing on Alberta soil. Albertans will file their income taxes – all of their income taxes – with the new national Alberta government. Along with the end of equalization payments the begging to Ottawa will no longer be necessary.

Once we declare ourselves independent, Albertans are well advised to schedule a second referendum swiftly to determine how many Albertans would then want to become a part of the United States of America. If passed, Alberta would then formally apply to be admitted as a territory or protectorate of the United States.

This is not a new path. It has essentially been followed in the vast majority of cases since the first 13 colonies declared independence and formed the United States of America. Other than the original 13 Colonies, most states that joined the union were first unincorporated US territories. We would be following in the footsteps of what would later grow, prosper, and become powerful states in their own right, like California. 

Alternatively, Alberta could follow the path of Texas, which was admitted directly to full statehood quickly after declaring its independence from Mexico. 

Being a territory or protectorate of the United States is not the same as being a state. Statehood would be an option at a later time and would require a third referendum by Albertans. However, US territorial status gives Albertans at least three very important benefits right away.

First, instant US citizenship to every Albertan and the freedom to travel, work and trade anywhere in that great nation. Furthermore, Americans are free to travel and, more importantly, invest in Alberta. This means badly needed jobs will return. Business will be able to thrive. Albertans will be able to enjoy real freedom and real prosperity once more.

Second, immediate US military protection. When the most powerful nation on the planet vows to defend Alberta, Prime Minister Justin Trudeau knows that sending Canadian soldiers onto Alberta soil would be impossible. Therefore, US territorial status assures a peaceful resolution for Albertans whatever they decide to do next.

Third, freedom to leave the United States at a later date. Being a US territory – and not a state — means Albertans are not obligated to remain a part of the United States. Albertans would be given the freedom and time to heal and consider the future that is best for ourselves.   

As a US territory, we even have the freedom to return to Canadian confederation, should Albertans decide to forgive Ottawa and Quebec for their swindles of the past 115 years. 

Critically, Alberta would have the right to negotiate the terms of entering the American union. This contrasts with Alberta’s entry into confederation in 1905, which was unilaterally dictated by Ottawa without any negotiation or consultation.  

We may also decide to remain as a US territory. This gives us all the freedoms and benefits described above, but US territorial status does have one important price: no political representation in Congress. As a territory, we may not be able to elect Alberta senators or Albertans to the House of Representatives, but we will be able to vote for the next president. This means that Alberta’s liberals and socialists will be free to vote for the Democrats, and conservatives for the Republicans.

Most importantly, as a US territory – and no longer crippled by Quebec’s multi-billion-dollar ransom payments –  Albertans would be able to focus on what we do best: working hard and prospering. 

Premier Kenney, you still have time, but not much. I propose you schedule a referendum on our independence to be held no later than Alberta Day, August 3, 2021. If you do this, I predict that your base will return – their confidence in you restored – and the nightmarish possibility of another NDP Alberta reign of error banished to the realm of socialist dreams.

Failure to follow through on this proposal puts your supporters in a difficult situation. Failure to show real leadership for Albertans means we have little choice but to find a real leader with the guts to do the job. Are you that leader? I hope and pray your answer is yes, but am prepared to act if you are not.  

Please accord Albertans the courtesy of a response and your reasons. If those reasons are examined and found wanting, be assured that conservative Albertans will not sit idly by while you continue to wreck our province. We will act.

Jason, no one would regard your position as enviable. Your love of Canada is without question. We all love Canada. But when put to the test, when forced to choose between Canada and the calculated destruction of Alberta, the needs of Albertans must be your highest priority.

Sincerely,
Vince Byfield

Vincent Byfield is manager of SEARCH, publisher of the 12-volume history series “The Christians: Their First Two Thousand Years” and other history books. Since 1973 Vince has worked with his father, Ted Byfield, to publish Alberta Report Newsmagazine and his brother, Link Byfield, who was elected in 2004 as an independent senator-in-waiting for Alberta.

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Opinion

TERRAZZANO: Alberta needs recall legislation now

“Recall rules would be a big step towards reaffirming the role of citizens as boss. It’s time for Kenney to make good on his promise and pass recall legislation during the upcoming fall legislative session.”

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When most of us stink at our jobs, we get sent packing. That standard doesn’t apply to politicians, who don’t need to worry about impressing their boss, taxpayers, outside of an election every four years. 

Fortunately, Premier Jason Kenney promised to change that by introducing recall legislation. 

“Albertans want their MLAs to be accountable to them. That’s why a United Conservative government would introduce a Recall Act allowing voters to fire their MLA in between elections if they have lost the public’s trust,” Kenney said while on the campaign trail ahead of the 2019 provincial election.

“Empowering citizens to hold their MLAs to account will strengthen Alberta democracy.”

The most obvious benefit of recall legislation is allowing voters to hold misbehaving politicians accountable more than once every four years. Recall legislation in British Columbia helped citizens give former MLA Paul Reitsma the bootwhen he got caught sending fake letters to the editor. 

There are several examples where recall could have been used by Alberta voters. 

Take the case of former premier Allison Redford. It took months of mounting political pressure over expense scandals, including the infamous $45,000 South Africa trip, for internal political machinery to finally force her to step down. Or consider former Lethbridge coun. Darlene Heatherington, who refused to step down after being charged with fabricating a story about a stalker. In both cases, recall could have been a handy accountability tool for voters, who should be the ones making these decisions.  

The on-going scandal over Calgary’s Coun. Joe Magliocca’s expenses is another example where citizens should have the ability to hand out a pink slip through the recall process. 

Ensuring citizens can hold their elected officials accountable is crucial, but just as important is the role that recall rules could play in discouraging politicians from messing up in the first place. It doesn’t take a PhD in psychology to understand that a politician will think twice before blowing tax dollars on steaks and martinis if there’s a chance they could have to face the voters immediately rather than in four years.

Alberta’s recall rules must be extended to the local level, so voters have the same ability to hold local councillors and mayors accountable as they will with MLAs. Fortunately, the government’s last throne speech promised exactly that. 

“To further make life better for Albertans, my government will undertake significant reforms to strengthen democracy in Alberta, including the tabling of … a recall act, allowing constituents to remove their MLAs, municipal councillors, mayors,  and school board trustees from office between elections,” reads the speech.  

When designing recall legislation, Kenney must make sure the requirements to force a by-election aren’t too onerous. Beyond the Reitsma example, there hasn’t been any successful recall campaigns in B.C. This is partly because of B.C.’s onerous requirement to collect signatures for more than 40 per cent of eligible voters in that district in 60 days. 

This threshold puts B.C. at the upper limit when compared to American states, where the most common requirement is to have 25 per cent of votes cast in the last election to sign the petition to trigger a byelection. A 25 per cent threshold would be a good starting point for Alberta’s recall rules to balance political stability with accountability, and is what the Canadian Taxpayers Federation recommended in our presentation to the Alberta government’s Democratic Accountability Committee. The most important thing to remember when thinking about signature thresholds, however, is that it doesn’t have to be perfect. Albertans need recall now, and politicians can always tinker with the requirements down the road to make improvements. 

Recall rules would be a big step towards reaffirming the role of citizens as boss. It’s time for Kenney to make good on his promise and pass recall legislation during the upcoming fall legislative session. 

Franco Terrazzano is the Alberta Director for the Canadian Taxpayers Federation. This column is an abbreviated version of the presentation he made for the Alberta government’s Democratic Accountability Committee.

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Opinion

CAMERON: Canada has embraced medical authoritarianism

“We are a long way from a free and democratic society right now. There is nothing “democratic” about public health officials’ orders. Canadians are living in a state of medical authoritarianism where the rule of law is in tatters, and constitutionalism and democracy with it.”

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As Canada faces winter 2020 and the citizens of this country are threatened by politicians with a new wave of lockdowns, it is time to take stock and consider. 

There has never been a similar six-month period in the history of Canada like the period from April to September 2020.  The massive collateral damage from the lockdowns is akin to the national self-amputation of a limb.  The self-inflicted damage has been followed by an infuriating political nonchalance at all the blood.

With each passing day, it feels more and more like a stern reminder is needed for the ruling elite: that this figurative blood flows from real people. And it is still flowing.   

Over a million jobs have been destroyed, and with them the independence and hopes and plans of millions. The despair of families thus affected is stark and palpable.  I’ve met with scores of them recently, and they stare bleakly at their prospects for the future.  

The response from the political elite? More pontification about the benefits of the lockdowns. While Doug Ford bloviates and threatens, and Justin Trudeau administers the next dose of the globalist agenda, ratings agencies like Fitch and Moody’s quietly consider the ominous implications of Canada’s ongoing hari-kari.  

Against this grim backdrop stands another ugly truth: without a shot being fired, Canada, once renowned for its liberty and constitutionalism, has submitted to medical authoritarianism. 

In Canada, the Constitution Act, 1867 apportions law-making power to either Parliament or the provincial legislatures. The Constitution requires that people have representatives who consider, debate and make laws on their behalf.

There is nothing democratic about the oppressive rule of public health officials. 

The doctors have been in charge for over six months.  In that time, it has become obvious that they are unfit to make decisions on civil governance. They know nothing about tourism. They know nothing about commerce. They know nothing about transportation or agriculture or industry. They know nothing about the Constitution or its importance to Canada’s liberal democracy. They appear to also know nothing, or at least be willfully ignorant about the social consequences of their policy decisions, like domestic violence, suicide, a failing economy and growing civil unrest. 

It turns out that public health officials do know something about authoritarianism, however. 

Public health officials made the orders that forbade walking or exercising alone in the park, or sitting alone on park benches.  A public health order prohibited the gathering of citizens in Alberta to protest the economy-destroying lockdowns, where peaceful protesters were arrested and issued $1200 tickets. It was a public health order that authorized the $900 ticket to a lone teenager in Ottawa with ADHD playing basketball by himself.   

From east to west, contradictory and confusing orders have been issued by health officials regarding everything from churches to golf courses. And, of course on masks. 

On masks, we’ve heard it all. You don’t have to wear them, they don’t do any good. No, they are like a super power – you are safe if you wear them. You must wear them if you can’t socially distance. No, you have to wear them and socially distance. You have to wear them in church, but not in the restaurants. You can go to the gym and not wear them.  You must wear them during sex.  

The inanity of it requires that doctors be deposed and the legislatures resume governance.  

A frightening progression in this medical authoritarianism was seen two weeks ago., when Dr. Jacques Girard, leader of the Quebec City public health authority, held a press conference to brag that he had ordered the arrest of two citizens and had them incarcerated at a secret location. Dr. Girard announced that the police participation was “exceptional”.  

Citizens ought to take notice of the total lack of due process in Dr. Girard’s actions. No lawyers made submissions on behalf of the “accused” persons, no impartial judge considered the constitutional issues. There was no bail hearing. The Crown was not required to “show cause” as to why the liberty interests of two Canadians should be overridden. Dr. Girard alone decided two people were “guilty”, and he decided what their “sentence” would be. 

How long can people be confined in these new secret isolation centers? No one but the health officials know.   

That’s scary. It ought to be much scarier than COVID-19, which from recent statistics from the Canadian government has a death rate thus far of .009 percent of Canadians below the age of 60.  

In Canada, the Charter of Rights and Freedoms says that laws which infringe constitutional rights can only be justified in accordance with the law (meaning laws which are duly enacted by democratically-elected members of Parliament or the legislatures) and within the parameters of a free and democratic society. 

We are a long way from a free and democratic society right now. There is nothing “democratic” about public health officials’ orders. Canadians are living in a state of medical authoritarianism where the rule of law is in tatters, and constitutionalism and democracy with it. 

Jay Cameron is a guest columnist and the Litigation Manager at the Justice Centre for Constitutional Freedoms. 

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