The Alberta Bill of Rights was introduced in 1972 to enshrine a number of fundamental rights, such as freedom of speech and religion. But the document has not seen any major updates since then, and now the United Conservative Party (UCP) government of Premier Danielle Smith has introduced legislation that would update it to include a suite of new rights such as the right not to receive medical treatment or a vaccine without consent, as well as strengthened property and firearm rights.
Smith said Alberta 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,” she said.
The bill of rights is also being expanded to ensure it applies to all provincial government actions, including policies and programs. The act currently only applies to laws in Alberta, such as statutes or regulations or actions taken under those laws.
“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,” said Mickey Amery, the province’s justice minister. “I am proud to see this bill introduced.”
Under the government’s plans, the Alberta Bill of Rights would be amended to say “the right for an individual with capacity not to be subjected 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 to others,” and would also protect the right for an individual with capacity not to be compelled or coerced into receiving a vaccine.
Eric Adams, a professor of constitutional law at the University of Alberta, said “in one sense,” people might say that the proposed amendment to the bill on medical treatment of vaccines is redundant and unnecessary because the Charter already protects people against coerced medical treatment — but Adams noted that people could also say it has broadened rights slightly to prohibit a government from coercing vaccinations.
“And that’s an unclear legal standard, and I’m not sure what that might mean — there are lots of jurisdictions that have used, for example, a requirement for childhood vaccinations in order to continue to attend public school,” he said. “And presumably those are illegal in Alberta under the bill of rights, but I think the government also has in mind the incentive programs during the pandemic. I’m not sure we can describe that as coercive or not, but the fact that people couldn’t visit some private establishments without demonstrating vaccination might fall within a new prohibition on coercive measures, or at least ones that would then be subject to us to a [Charter] s. 1 justification.”
Lorian Hardcastle, assistant professor in the faculty of law at the University of Calgary, said those provisions are “probably more for political reasons than it is to make actual substantive legal changes.”
“The bill of rights is meant to bind the government, but this government isn’t going to bring in vaccination passports or school vaccination legislation anyway,” said Hardcastle, who also holds a joint appointment in the University of Calgary’s Cumming School of Medicine. “This government has really gone to great lengths to try to appease the members of their base who were dissatisfied by what happened during the COVID-19 pandemic and some of the public health measures that were in place. And so, I think this really is a nod to those people, more than it is a significant change in the kinds of medical rights that people have.”
The government has really tied its hands with respect to how it might respond to a future pandemic like COVID-19, said Hardcastle.
“And maybe that doesn’t bother the current government, but in a future public health emergency, that means that potential future governments’ hands will be bound too,” she said. “Of course, they could amend the bill of rights, but, you know, you wouldn’t just want to do that on a cursory basis without debate in a public health emergency — you’d want a fulsome discussion of the bill.”
David Schneiderman, University of Toronto
“The rights here are not absolute and subject to reasonable limits — so even the vaccine requirement right is not absolute. And so, a government in the midst of a pandemic could feasibly impose a vaccine requirement through law, and this might not be in violation of the Alberta Bill of Rights because it’s a reasonable limit in the face of a pandemic,” he said. “So, this ‘escape clause,’ which is also available to both governments under the Charter, is a way of infringing rights.”
Everything depends on what kind of standard of scrutiny a court will impose, said Schneiderman.
“Is the judge going to impose a strict standard and really going to hold the government’s feet to the fire to demonstrate why it’s a reasonable limit and impose a strict standard?” he said. “And the courts are all over the place about whether they're going to apply a more deferential standard or a stricter one — but the important point is that even this vaccine right is subject to reasonable limits and that it’s open to interpretation.”
The government is also including language in the Alberta Bill of Rights that would protect the right to acquire, keep and use firearms “in accordance with the law.” The province said this would reinforce the right to lawful ownership and affirm the government’s intent that provincial laws should not interfere with the right to own legally acquired firearms.
Schneiderman said “in the abstract” this could lead to a conflict with Ottawa but noted the federal government’s power to regulate firearms possession has been upheld by the Supreme Court of Canada — and federal law would take precedence over provincial legislation.
“So, the province of Alberta can say whatever it likes about possession of firearms, and it could do so and regulate possession of firearms in so far as it’s characterized as property,” he said. “But to the extent that Alberta law says you can do this, and federal law says you can’t, the federal law prevails.”
And Adams said the firearms provisions may lead to a bit of confusion around “what the rules of the game are.”
“If you’re not legally trained, and you are told that the bill of rights has guaranteed your right to the ownership of firearms, it’s going to maybe come as a surprise to you that Parliament has passed a law restricting or prohibiting that firearm or requires licensing to use it,” he said. “And the bill of rights has no impact whatsoever on Parliament’s ability to regulate, including to prohibit the ownership or use of firearms. So, the right suggests that there’s going to be an Alberta approach that is largely permissive of gun ownership, but in terms of the day-to-day reality of the regulation of firearms in this country, it seems to be of modest, if any, actual utility.”
And under the province’s plans, the bill of rights would also be expanded to ensure that if an individual or entity is deprived of the enjoyment of their property, this would need to be authorized by law; and if a government takes property, it will need to be authorized by law and government would need to provide just compensation.
Schneiderman said Alberta is incorporating the United States Bill of Rights language on the taking of property — a right that is fraught south of the border.
“It’s a bit naïve to think you can incorporate into the Alberta Bill of Rights and resolve the kinds of questions that continually appear in American constitutional disputes over property — what is the deprivation of property?” he said. “This is highly contentious, and the parameters of that right will remain kind of opaque until there are determinations by the courts about how that specifically works in specific contexts. So, it certainly amounts to, I would say, the Americanization of Alberta’s human rights regime.”
But Adams said things like the right to compensation from expropriation of land are already established features of the law in Alberta under both statute and the common law, and the bill of rights amendments will not likely change the experience of property rights in the province.
“So, the fact that we’re consolidating and articulating these things in the Alberta Bill of Rights may have a kind of symbolic value,” he said. “It may place those ideas on a slightly higher plane, but in terms of actual legal consequences, all of these aspects were already covered under the existing law.”
Bill 24, the Alberta Bill of Rights Amendment Act, 2024, is currently at second reading in the Alberta legislature.
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