In Defence of Limiting Personal Freedoms
Rights must be limited, so it is best for the legislature to impose limits rather than leave it to the courts.
The Alberta government seeks to strengthen the Alberta Bill of Rights, which is a sort of mini constitution in Alberta. This is a reaction, in part, to the courts’ abject failure to protect our bodily autonomy and freedoms of speech and conscience under the Canadian Charter of Rights and Freedoms during lockdowns.
Some friends of the free society have cast shade on the proposed amendments, however, because Bill 24 would also add to the Alberta Bill of Rights a “limitations clause.” This would allow the government to infringe rights in some circumstances. The argument goes: a right the government can deny is no right at all. Our experience during lockdowns seems to well prove this point.
I would argue the opposite. Like or not, rights are limited. My right to swing my arm ends where your nose begins. Unless my rights are limited, you have no rights.
If I have an absolute right to free speech, then I can defraud you, spread vicious rumors about you, and even plot your murder. Neither you nor the state would be able to do anything about it. After all, to “do something” about my fraud, defamation or conspiracy would be to infringe my absolute freedom of speech.
This is obviously untenable in a free and democratic country. The question, therefore, is not whether to limit rights, but exactly how they should be limited and who should set the limits. I argue that it is better for our elected representatives to draw boundaries than to leave the task to judges.
The Charter, as drafted, wisely addresses this reality in its first section. In section 1 the Charter says that rights can be reasonably limited, by law, if well justified, and if consistent with freedom and democracy.
Is it reasonable in a liberal democracy to limit my freedom of speech by criminalizing conspiracy to commit murder? Of course it is.
Where the Charter has failed Canadians is not so much in the words it contains, but in how judges have interpretated and applied them. Courts have made it easier and easier for governments to deny Charter rights – especially where denied by some bureaucrat in the belly of the administrative state.
The Alberta Bill of Rights is no exception. In fact, it is currently far easier for a government to deny your rights under the Alberta Bill of Rights than under the Charter. This is, paradoxically, because the Alberta Bill of Rights does not contain something like the Charter’s section 1.
Alberta courts have concluded that the Bill of Rights can not grant absolute rights, because that would be absurd. The Alberta Court of King’s Bench, in Ingram v. Alberta, therefore “interpreted” the Alberta Bill of Rights to include an implied, internal limit that permits violations as long as government can show a “valid legislative objective!” This is a far lower hurdle than, even, the Charter’s section 1.
It is really no hurdle at all. You truly have practically no rights under the Alberta Bill of Rights as it stands.
To cure this fatal flaw, the government should insert an express limit in the Alberta Bill of Rights which signals to the courts that it is a higher burden than under the Charter. This is exactly what the Provincial government now proposes to do.
Time will tell whether the government’s proposed language sends a strong enough signal to the courts that, unlike the Charter, limits must be narrow and amply justified.
How might this signal be made louder? While the language of the Charter’s section 1 is nicely worded, it is very general. This assigns to the courts the task of providing the detail, the task of “filling the gap.” We now know with what stuff the courts have filled the gap. So, the legislature must, itself, fill the gap, and fill it with as sturdy a material as possible.
The government’s proposed wording is an improvement over the Charter’s section 1, but is still quite general.
I would suggest the government simply tell the courts, far more precisely, when rights may be properly denied – something like I suggest below. While my suggestion is wordy, it is a far shorter read than the multitude of weak court decisions which will otherwise fill the gap.
I completely agree that “even a perfect Alberta Bill of Rights would only be as good as the judges who interpret it.” While a well-worded limitations clause should limit the courts’ freedom of movement and should compel courts to consider facts they may otherwise ignore, unless we start appointing judges who are fierce defenders of liberal democracy, words won’t matter.
My proposed clause (please forgive the formatting):
The rights and freedoms recognized and declared by this Act are subject only to such reasonable limits prescribed by law as can be demonstrably and proportionately justified, based on evidence, in a free and democratic Alberta where:
“prescribed by law” means the right is expressly or by necessary implication prescribed by legislation, including regulation and other subordinate legislation, in accordance with the rule of law;
“demonstrably and proportionately justified, based on evidence” means the government has provided, following appropriate investigation and consideration, including of all reasonably available contrary evidence and argument, by such empirical proof as should reasonably be available, a rigorous and good faith justification for the infringement which is rational and considered and which is clearly justified given:
the nature, degree and importance of:
the infringement;
the benefit likely to be derived from the infringement; and
all reasonably foreseeable costs of the infringement,
including as to the claimant and society;
the necessity of the infringed right to a free and democratic Alberta;
the necessity of the benefit likely to be derived from the infringement to a free and democratic Alberta;
the certainty or lack thereof, including the possibility of confounding variables, of all relevant benefits and costs; and
the degree to which the legislative objective may be reasonably achieved by less intrusive means,
and where:
the existence of an alternative to reasonably achieve the same legislative objective renders the infringement unjustified;
justification may never be established by mere apprehension of benefits;
discretionary administrative decisions are reviewed on a standard of correctness; and
Canada’s international treaty obligations are not relevant; and
“a free and democratic Alberta” means one governed by the values of the Enlightenment including:
parliamentary sovereignty;
constitutionalism and the rule of law;
democracy including freedom of conscience and expression;
recognition of the inherent and equal dignity of each individual and of each individual’s personal agency and merit;
uncoerced control of one’s body, mind, spirit, voice, family, and labour;
respect for minorities including religious minorities;
reason, including objectivity and science;
the right to participate in democratic decision-making and to search for truth and good;
pragmatic and incremental policy making rather than utopian central planning; and
a constrained and pragmatic rather than unconstrained and utopian view of human potential,
which, therefore, may provide social services but is, in no part, socialist.
This is a full version of a column published in the Western Standard on November 26, 2024