OPINION | The hypocrisy of Jason Kenney's charter rhetoric

This column is an opinion from Calgary-based writer Claire Porter Robbins.

An unprecedented number of Albertans tuned in on Nov. 24 to listen to what, in "ordinary times," would not have caught the attention of even the most wonky among us: a press conference by the premier of Alberta on the subject of public health.

But this is no ordinary year, and it was no ordinary week — with case numbers skyrocketing, and whispers of Alberta's intensive care units approaching capacity, Albertans were anticipating sharper restrictions.

What Albertans got, instead, was poetic waxing by Premier Kenney on his self-professed reverence for the Charter of Rights and Freedoms, complete with embellished examples of Albertans for whom he claimed he was defending these rights.

At one point, the premier opined, "In so much of the debate, have [we] forgotten about the Charter of Rights and Freedoms?"

It's an interesting question, particularly when coming from a leader who has, in the short span of 18 months, introduced two new bills already subject to expensive charter challenges in our courts. 

When you peer behind the press conference rhetoric, into the day-to-day job of drafting and implementing legislation, the premier's invocation of the charter seems particularly expedient, and incredibly partisan. 

Charter contradictions

Take for example how, later in the week, when asked about ticketing or arresting the hundreds of anti-mask protestors who gathered in Calgary and Edmonton for violating public health restrictions, the premier defended their right to gather, repeatedly citing the charter.

In essence, if you want to gather on municipal property and decry the apparently massive inconvenience of wearing a face mask, that is, according to the premier, your charter right. Fine. That makes sense.

But let's say you want to protest somewhere outside your workplace with your union for better wages, safer conditions or whatever happens to be the case. According to the UCP's Bill 32, which received royal assent this July, you'll have to receive approval from the provincial Labour Relations Board to conduct this type of secondary demonstration. 

That's right — you'll need government approval to protest. Queue the jokes about 2020 morphing into 1984.

It's not difficult to spot the contradiction in Bill 32: What about the charter right to freedom of expression?

That's the first charter challenge.

The second is much farther reaching.

Bill 1, which received royal assent in June, limits protest across a broad swath of locations. Pretty much every possible location, actually.

During debate in the legislature, former justice minister Doug Schweitzer and Premier Kenney stated that the intention of the bill is to protect against demonstrations like the anti-pipeline railway blockades by Indigenous and environmental groups that tied up supply chains in early 2020. Minister Schweitzer even expressed his hope that other provinces would pass similar legislation.

But here's the issue, as legal experts like professors Jennifer Koshan, Lisa Silver and Jonnette Watson Hamilton at the University of Calgary have pointed out: Railway blockades encompass a tiny slice of the types of acts for which Albertans could receive massive penalties, including prison time, under this bill.

By incorporating the Traffic Safety Act, Bill 1 restricts protests at pipeline and infrastructure sites, but also incorporates the following locales: thoroughfares, streets, roads, trails, avenues, parkways, driveways, viaducts, lanes, alleys, squares, bridges, causeways, trestleways and "any other place or any part of any of them, whether publicly or privately owned, that the public is ordinarily entitled or permitted to use for the passage or parking of vehicles." Sidewalks are included as well.

You read that correctly: In 2020, in Alberta, it is illegal to protest on a public or private sidewalk or street. No, this is not Soviet Russia.

Again, it doesn't take a legal scholar to untangle the obvious contradictions between Bill 1 and our charter-protected rights to freedom of expression, freedom of association and freedom of assembly. That's why Bill 1, like Bill 32, is now subject to a charter challenge, tying up justice department resources and leaving Alberta taxpayers to foot the legal bills.

One might also wonder why, if Albertans are not allowed to gather on public or private grounds as per Bill 1, hundreds of protestors were allowed to gather on streets and sidewalks in downtowns across the province to protest mandatory mask rules.

The answer is simple. The premier is picking and choosing who gets to exercise their constitutionally protected freedoms.

The weaponization of the charter

Labour activists, no. Environmental activists, no. Anti-authority, right-leaning anti-maskers who may or may not compose the UCP's base? Go right ahead. It's "a free society," he said in a Facebook Live event, and we have a Charter of Rights and Freedoms to ensure that.

Yes, some organizers of the protests were ticketed $1,200 under the Public Health Act. But those fines are slaps on the wrist compared with the $10,000 to $20,000 fines legislated under Bill 1, a piece of legislation ostensibly enacted to protect Albertans' safety, or so the premier and Schweitzer claimed during its debate in the legislature.

The strategy here is fairly apparent: When the ideologically opposed voice their dissent, limit that expression on the grounds of safety. When the ideologically aligned break rules imposed to limit the spread of a deadly pandemic, hide behind their charter rights.

Premier Kenney knows what he is doing. Just like the United States' Constitution, the Charter of Rights and Freedoms is a powerful, prescient document. But unlike our southern neighbours, Canadians aren't accustomed to our foundational documents being thrown back and forth for virtue signalling (at best) or as a shield to protect against democratic backlash (at worst).

We don't have to get used to that type of political rhetoric.

It's up to the courts now to determine whether Bills 1 and 32 violate the charter. But the pattern has crystallized, and we'd be wise to call it out for what it is: the manipulation and weaponization of the charter.

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