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Jay Cameron, Justice Centre for Constitutional Freedoms (JCCF)

Government can’t avoid constitutional challenge by saying law will be repealed: Alberta rights group

Thursday, September 16, 2021 @ 8:57 AM | By Ian Burns

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Alberta’s highest court will soon be grappling with the issue of public interest standing in constitutional cases, a decision which could pave the way to a major challenge of steps the provincial government took to fight the COVID-19 pandemic.

The Calgary-based civil liberties group Justice Centre for Constitutional Freedoms (JCCF) launched a constitutional challenge last year of the Public Health (Emergency Powers) Amendment Act, also known as Bill 10. The centre claims the bill violated the Constitution as it gave ministers the power to unilaterally amend legislation without having to consult the provincial legislature.

The centre sought public interest standing to argue its case, the test for which was outlined in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society 2012 SCC 45. In that decision, the Supreme Court said there were three steps a judge should follow when determining standing: whether there is a serious justiciable issue raised; whether the plaintiff has a real stake or genuine interest in it; and whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts.

 JCCF litigation director Jay Cameron

JCCF litigation director Jay Cameron

Earlier this year Court of Queen’s Bench Justice Anne Kircher ruled JCCF met the first two steps of the test but not the third, noting the provincial government had promised to repeal the legislation in the future, which it eventually did. But JCCF litigation director Jay Cameron said the court’s decision was an error.

“The question in this appeal is whether the government can pass an unconstitutional law and then insulate itself from a challenge by saying that some point down the road it will be repealed,” he said. “The answer to that question has to be no.”

And a fellow advocacy organization will be joining the JCCF at the table when the case is argued, with Alberta Appeal Court Justice Kevin Feehan having granted the B.C. Civil Liberties Association (BCCLA) intervener status (Justice Centre for Constitutional Freedoms v. Alberta 2021 ABCA 295). Grace Pastine, the association’s litigation director, said public interest litigation is important for upholding rights and freedoms because it is usually very difficult for an individual to launch a constitutional challenge.

“We are intervening in this case to ensure that organizations such as ours and JCCF are able to challenge unconstitutional laws, so that those laws aren’t immunized from scrutiny because there isn’t another effective means to challenge them,” she said. “It is common that government actors will seek to challenge the ability of organizations such as ours to bring forward systemic constitutional challenges and in many instances this is an attempt by an opponent to run out the clock and exhaust someone’s resources.”

A positive decision on public interest standing would open the door to the JCCF’s overall constitutional challenge to the legislation. Cameron said there has never before been a law in Canada which allows one minister to unilaterally amend or suspend any law on the books, and the constitutionality of that needs to be answered even though the law has been repealed.

“Alberta tried to say this is just like any other delegation of regulatory authority, but of course it is not,” he said. “We are living in an extraordinary time where government is increasingly making extreme delegations of authority without appropriate democratic checks and balances.”

Pastine said JCCF’s arguments need to have their day in court, adding the Jason Kenney government’s amendments were a “dangerous and unconstitutional new law which set a troubling precedent.” The BCCLA had been granted intervener status in the original case before Justice Kircher.

“Our concern was that the law gave sweeping powers to Alberta’s premier and cabinet ministers essentially allowing them to make new laws on the fly without the approval of the legislative assembly, and that set a dangerous precedent for the rest of the country,” she said. “The Alberta government claims those powers were necessary for them to respond quickly to the COVID-19 pandemic, but provincial legislation already gave broad legal powers to the government to force quarantines and order physical distancing. So, on its face this law struck many as a broad power grab — and indeed the government rushed to proclaim a bunch of new laws without transparency, debate and oversight and we saw that as threatening fundamental democratic rights.”

The Alberta government did not respond to a request for comment by press time. The appeal in the matter is set to be heard Nov. 10.

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