Alison Redford has been “frightened” and “fearful” for the last 2 weeks. The cause? The Wildrose proposal to allow a citizen initiated referendum. Her fear is overblown.
Before I tell you why let me be clear about one thing. I do not support the Wildrose position on conscience rights or using a referendum to slip conscience rights into legislation, however I do not agree with Redford that all referenda are bad.
Redford’s argument is based on her belief that the Wildrose process to protect human rights—vetting the question with a federal judge to ensure it doesn’t violate the Charter of Rights and Freedoms—is a sham.
After the Leaders Debate Redford said: “It’s important, I believe, to understand that there is no way that an issue will not be dealt by a judge favourably as long as we use the notwithstanding clause”.* In other words, a federal judge must always allow a referendum to go ahead if the Wildrose shields the legislation by relying on the “notwithstanding clause”.
This is simply not true.
Here’s a quick constitutional law lesson: The Charter prohibits the federal and provincial governments from passing laws that violate our rights and freedoms (which are nicely set out in the Charter). But Section 33 of the Charter allows the feds or the provinces to pass laws which operate “notwithstanding” the protection of our rights and freedoms under the Charter. So if a provincial statute says that it’s operational “notwithstanding” the Charter that statute can violate our rights and freedoms. But there’s a caveat.
What Redford failed to mention is that such lawswill not stand if a court rules that the violation of our rights and freedoms is unjustified. As a result, the “notwithstanding clause” is rarely used for two reasons (1) the burden of proof is on the province to demonstrate why the violation of these rights benefits the rest of society and (2) it’s political suicide to create legislation that violates basic human rights.
Whether a law stands or falls is determined by a court after it’s been passed. The Wildrose safeguard goes one step further. It requires a federal judge to determine the legal validity of the proposed law before the referendum is allowed to go ahead, not after the statute has been passed.
Only a handful of provinces have inserted the “notwithstanding clause” into a piece of legislation. Quebec tossed it into all of its laws in a fit of spite when the Charter was enacted (it was removed when the Liberals ousted the PQ). Saskatchewan used it once to legislate workers back to work (it turned out they didn’t need it, the legislation was not offside), the Yukon used it in a land use statute that was never proclaimed and Ralph Klein’s PC government used it in 2000 to prohibit same sex marriages. (Another curious fact that Redford failed to mention).
Klein’s PC government enacted Bill 202 which amended the Marriage Act by defining “marriage” as a union between one man and one woman “notwithstanding” section 15 of the Charter which guarantees equal rights to all individuals. Bill 202 passed with 32 votes in favour and 15 against. The PCs who voted in favour of the Act to ban same sex marriages included Wayne Cao, Heather Forsyth, Ty Lund, Ed Stelmach and Gene Zwozdesky. The PCs who voted against the Act to ban same sex marriages included Dave Hancock and Guy Boutilier. Boutilier and Forsyth are now Wildrose MLA candidates. See the full list of who voted for and against below.**
In 2005 the federal government passed Bill C-38 which defined marriage as a union of 2 persons. Klein investigated creating new administrative hurdles to prevent same sex marriages but was told by legal experts that with the new federal law in place he’d lose a Charter challenge. The Marriage Amendment Act expired and is now (thankfully) no longer law in Alberta.
Bottom line: Notwithstanding the “notwithstanding clause” Redford has nothing to fear from a citizen initiated referendum—except the prospect of going down with the PC party at the end of its 41 year reign.
*Global TV Post Debate Scrum: http://www.globaltvcalgary.com/video/redford+in+postdebate+scrum/video.html?v=2222375828&p=1&s=dd#decision+alberta
**Votes In favour of the Marriage Amendment Act which prohibited same sex marriage: Burgener, Cao, Coutts, Doerksen, Ducharme, Forsyth, Friedel, Haley, Havelock, Hlady, Johnson, Jonson, Klapstein, Kryczka, Langevin, Lougheed, Lund, Marz, McClellan, McFarland, Melchin, Paszkowski, Pham, Shariff, Stelmach, Strang, Tannas, Tarchuk, West, Woloshyn, Yankowsky, and Zwozdesky
Votes against the Marriage Amendment Act: Bonner, Boutilier, Dickson, Graham, Hancock, Jacques, MacDonald, Magnus, O’Neill, Pannu, Renner, Spaers, Severtson, White, Wickman