Why Danielle Smith's government is not withstanding many court challenges

It’s been firmly to stay fresh caterpillar track of how many sound challenges and fighting(a) court proceedings the United Conservative government has tried to quash or pre-emptively block in the last six weeks, but let’s try to tally:

One could argue there’s an eighth case the UCP government’s legislation would nullify if passed — one filed by the United Conservative Party itself. That would be the governing party’s lawsuit against two of its former MLAs who had applied with Elections Alberta to rebrand the Alberta Party as the Progressive Conservative Party.

Rather than his party trying to persuade a judge or jury that taking the old PC name was illegal under current laws, Justice Minister Mickey Amery drafted a new law to make it illegal to adopt that party name, or for any other party to use the word “conservative” in its moniker.

For all the talk of managing hearing backlogs in various jurisdictions, wielding legislation like this is technically one way to reduce court caseloads — it’s just unlikely that anybody has ever proposed this unorthodox means to that end. 

But Premier Danielle Smith’s government has shown it’s willing to go farther and to use more tools to achieve its aims than others.

The notwithstanding clause, in its four decades of existence, has never been used as frequently by any government outside of Quebec.

There are some instances of government laws banning lawsuits — the Ontario government, for example, did so last year for cyclists injured on bike lanes the province removes. But that was to pre-empt wholly hypothetical cases; Alberta public sector pensions had already received a Court of King’s Bench ruling that the province and Alberta Investment Management Co. could be held liable for losses if ongoing arbitration failed.

Finance Minister Nate Horner justified that specific lawsuit ban in the name of protecting taxpayers from covering those losses. Safeguarding taxpayers from costs also emerged this week as a key rationale for imposing a four-year deal on Alberta teachers rather than risk higher pay increases through an arbitrated settlement.

The given reasons for the triple application of the notwithstanding clause in Alberta’s transgender laws was to protect children, athletes and parental rights — the Smith government’s same arguments for applying the laws in the first place, but with the added spectre of legal processes forestalling those protections.

In creating a list of words in party names that could not be copied by another party, Amery insisted “this is not a partisan issue.” Rather, it was because all parties “deserve to have their goodwill protected,” Amery said — even though this new ban is specifically backdated to early July, right before independent MLA Peter Guthrie spearheaded the Progressive Conservative rebrand application.

Guthrie didn’t see this as non-partisan, but a bid to “legislate away their competition,” he posted online.

“Alberta: Strong and Free — just not for anyone challenging the UCP,” he added, in a riff on the party’s slogan (and the new licence plate motto the Smith government adopted this fall).

Another denunciation of the Alberta government’s legal manoeuvres came this week from a higher office — Court of King’s Bench Justice Colin Feasby.

He did not take kindly to legislation to discontinue the hearing he was just wrapping up, into the constitutionality of the Alberta Prosperity Project’s petition to force a separatism referendum. 

Feasby denounced “changing legislation to circumvent a valid legal process” as antithetical to “the stable, predictable and ordered society that the rule of law contemplates, and democracy demands.” Not only that, but it also showed “Alberta’s cavalier disregard for court resources,” given how much of the hearing had already occurred.

Besides, he added: “the Court cannot be silenced because the case has been decided.”

Before the hearing could be discontinued by legislative decree, Feasby ended it by ruling — that it would indeed be unconstitutional for citizens to initiate a referendum that replaces the Canadian Constitution altogether with an Alberta constitution.

The separatist movement had hailed Bill 14’s attempt to discard the constitutionality hearing.

It had erased a potential hurdle to their dream to get Alberta independence on the ballot, and ultimately win — and got the separatists happy with Smith’s UCP, days after jeering the premier at her own party convention for striking a pipeline and climate deal with Ottawa.

Was it worth it, trying to quash a court hearing to clear hurdles for UCP’s separatist faction, if in doing so it raised a judge’s warnings about dangers to democracy?

Was it worth it to use the notwithstanding clause to override the Charter rights of labour unions and trans youth if it met other various societal and economic aims, as well as politically satisfying the party base?

There’s a principle in political science that political actors will often refrain from using their legal powers to the fullest and most controversial extent to punish opponents or fulfil their own ambitions, because they’re aware that doing so risks creating permission for the other side to go to the same extremes when they’re in power.

It’s known as institutional forbearance, popularized in the 2018 book How Democracies Die by Steven Levitsky and Daniel Ziblatt.

Jared Wesley, a University of Alberta political scientist, said this is the concept that has traditionally restrained one government from routinely using the notwithstanding clause — nicknamed the Constitution’s nuclear option — to advance its aims, lest a successor government or other jurisdiction use the same tool to thwart those aims.

For instance, the Alberta government champions gun rights, but what if the federal government or a future Alberta premier from a different party used the notwithstanding clause to blunt gun rights?

“Populist governments, the Smith government included, tend not to think as often about how different measures would be used against them,” Wesley said. “They’re just more focused on using them in the moment.”

While former premier Peter Lougheed was a co-architect of Canada’s notwithstanding clause, subsequent Progressive Conservative governments were reluctant to wield the tool. The “new generation” of conservatives, Wesley added, have vastly different perspectives.

“They care less about institutional forbearance and more about owning their opponents,” he said.

Not only are the United Conservatives different from the Progressive Conservatives of yore, they’ve also legislated against anyone ever picking up that mantle again. In name, at least.

Producer and writer

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