Province details planned changes to Bill of Rights

Posted on November 21, 2024 by Ryan Dahlman

By Al Beeber
Southern Alberta Newspapers

Legislation introduced by the Alberta government will update and expand the provincial bill of rights.

Among changes Albertans will see if the legislation is passed include the right for a person with capacity to not be compelled or coerced into receiving a vaccine without their consent.

However, a spokesman who talked to media during a briefing Oct. 28 said “this expanded protection does not apply to private entities. These amendments would not prevent private businesses or private employers from implementing immunization requirements or imposing limits on people who have not received the vaccine.”

The amended Bill will also protect the right of an individual with capacity to not be subject to or coerced into receiving medical care, medical treatment or a medical procedure without consent unless that individual is likely to cause substantial harm to themselves or other.

Another amendment in the Bill includes the right to obtain, have and use firearms in accordance with the law. This right is limited by other laws, including federal laws, the spokesman said.

It does not provide a right to obtain a firearm in a way that would violate federal firearms regulations.

The province says the Bill of Rights hasn’t been substantially updated since first being introduced in 1972 and that amendments to it “would broaden and strengthen Albertans’ rights, with increased protections for personal autonomy” including strengthened property rights and more effective enforcement of rights.”

The Bill does not apply to federal laws or actions by the federal government, private sector or individuals. Rather it protects Albertans from the laws and actions of the provincial government.

The legislation also broadens Albertans’ right to freedom expression beyond the written word and spoken language, to include as an example used in a media briefing, an image on a sign.

“Freedom of expression is generally regarded as having a broader scope than freedom of speech,’ said the spokesman.

The Bill applies to all action by the provincial government including policies and programs.

And a new statement in the Bill, if passed by the legislature, would clarify that the provincial government may place reasonable limits on rights “if it can demonstrate it has a good reason for doing so. The statement will refer to a ‘free and democratic Alberta’ to recognize Alberta’s distinct culture, the value Albertans place on individual rights and Alberta’s government’s commitment to respect individual rights,” says an overview of changes.

The Bill makes four types of changes, said the spokesman.

First, it makes changes to the preamble, secondly it adds new expanded rights. Third, it makes changes to make the rights guaranteed under the Act more robust and finally, it adds transitional provisions.

In terms of the preamble, the Bill adds references to the rule of law and to the “position of the family in our society.”

It also addresses “the foundational importance of the rights and freedoms guaranteed in the act including during times of emergency,” said the spokesman.

New and expanded rights include broadening property rights currently protected under the Act.

The Act currently protects the right of an “individual to the enjoyment of property and the right not to be deprived thereof except by due process of law. The Bill requires that a deprivation of enjoyment of property must be authorized by law. The Bill also creates a new right – not to be subject to a taking of property unless that taking is authorized by law and just compensation is provided,” said the spokesman.

In that context, a taking means either a transfer of ownership of property or a situation where the owner of a property is deprived of all reasonable uses of that property. In the latter scenario, it’s only when a property owner is deprived of all reasonable uses of their property – such as through regulations, bylaws or discretionary decisions of government – that the right to compensation is triggered.

There are also changes to make the Bill “a more robust civil rights document.”

The first relates to the scope of application of the Act which presently applies to laws of Alberta, by extension the actions taken under those laws.

This scope will be expanded to include all actions of government, including those not taken under a particular law.

The Bill will apply to all actions and activities of entities that are part of government, either by their nature or due to government control. And will include all organizations that operate under extensive government control, including municipalities and police services.

It will also apply to specific activities by organizations where there is a high degree of government control over those activities, including hospitals that deliver public medical services.

The Act also addresses remedies when rights are violated, the only one that currently exists being is that the laws must be interpreted to avoid violating the rights and freedoms it sets out. Amendments to the Act provide that any law inconsistent with the rights and freedoms in the Act “is in no force or effect.”

Amendments will also allow courts to grant any remedy for a violation of rights that it considers to be just and inappropriate. These could include damages or injunctions. One exemption to remedies is that damages can’t be awarded for the passing of legislation by the legislative assembly.

Another change is the adding of a provision that addresses government’s ability to impose reasonable limitations on rights set out in the Act through laws that government can prove are justify.

The spokesman said it might seem counter-intuitive at first to say that adding a provision to the Act permitting reasonable limitation of rights makes the Act more robust but based on court decisions, the Act is subject to an implied limitation of rights “such that a law will not infringe a right or freedom as long as it has a valid objective,” said the spokesman.

This implied standard is being replaced by an expressed provision which “sets a higher standard for government to meet when justifying a limitation of rights,” said the spokesman.

The final change is related to the robustness of the Act which includes updated provisions requiring notice to the Minister of Justice when any law is challenged under the Bill of Rights.

The provisions update the existing notice provisions in the Act based on Section 24 of the Judicature Act which sets out notice requirements and related rules for constitutional challenges to legislation.

The notwithstanding provision is being redrafted to ensure greater clarity in its scope of application, he said.

The updated Act will only apply to violations of rights that may happen after it comes into force. That would include infringements that began before the amendments take effect but continue afterwards.

An exception would be for property rights – that “the amendments would not apply to a deprivation of property rights that began before the amendments take effect even if that deprivation continues after the amendments take effect, if litigation has already been started against the Crown in respect of the matter.”

In a statement on Oct. 28, Premier Danielle Smith said “our province was built on the principles of individual freedom and responsibility. By making important changes to the Alberta Bill of Rights, we’re ensuring we continue building on that foundation so Albertans for generations to come can rest assured their rights and freedoms are respected.”

According to Minister of Justice and Attorney General Mickey Amery, “the proposed amendments to the Alberta Bill of Rights address issues important to Albertans and reinforce that Alberta’s government is committed to protecting their rights. I am proud to see this bill introduced.”