Category Archives: Rule of Law

Premier Danielle Smith and the (Non) Observance of Constitutional Conventions

By: Nigel Bankes and Jennifer Koshan

Matter Commented On: Premier Smith’s interactions with the Department of Justice in the matter of Artur Pawlowski

PDF Version: Premier Danielle Smith and the (Non) Observance of Constitutional Conventions

For the past several weeks, news outlets have been reporting on Premier Danielle Smith’s involvement in prosecutions for COVID-19 and Coutts border blockade related offences. Most recently, a video was leaked of Premier Smith’s conversation with Artur Pawlowski, who is facing criminal charges for the Coutts blockade that Smith said she would discuss with Justice officials. One issue that has not squarely been addressed is the significance of whether Premier Smith actually spoke to prosecutors in Pawlowski’s case, or whether she just spoke to officials within the Department of Justice, including the Deputy Attorney General, about the case. The Premier’s back and forth on who she contacted suggests she believes this distinction matters, such that if she “only” did the latter she did not breach any constitutional convention relating to prosecutorial independence. In our view this is incorrect. Any contact by the Premier with the Department of Justice in relation to any particular case or class of cases is inconsistent with the constitutional conventions associated with the prosecution of criminal charges. These constitutional conventions are essential elements of the rule of law, the separation of powers, and ideas of equality before the law. Continue reading →

The Alberta Sovereignty Act and the Rule of Law

By: Martin Olszynski, Jonnette Watson Hamilton, and Shaun Fluker

Matter Commented On: The Alberta Sovereignty Act and the Free Alberta Strategy

PDF Version: The Alberta Sovereignty Act and the Rule of Law

Last week, United Conservative Party (UCP) leadership hopeful Danielle Smith announced that, upon her election as Premier, she would introduce the Alberta Sovereignty Act, legislation described as the “cornerstone” of the Free Alberta Strategy (Strategy), published back in the fall of 2021 (see story here). Briefly, this law would purport to grant the Alberta Legislature the power “to refuse enforcement of any specific Act of Parliament or federal court ruling that Alberta’s elected body deemed to be a federal intrusion into an area of provincial jurisdiction” (Strategy at 22). Legal academics have dismissed the idea as one that would clearly offend Canada’s constitutional order, but to date mainstream media commentary has failed to acknowledge the fundamentally unlawful and undemocratic nature of this proposal. Continue reading →

Red Flags with Bill 15 – Education (Reforming Teacher Profession Discipline) Amendment Act

By: Shaun Fluker

Legislation Commented On: Bill 15 – Education (Reforming Teacher Profession Discipline) Amendment Act (30^th Legislature, 3^rd Session, Minister of Education)

PDF Version: Red Flags with Bill 15 – Education (Reforming Teacher Profession Discipline) Amendment Act

One day the Supreme Court of Canada will revisit its 2001 decision in Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 (CanLII), [2001] 2 SCR 78, because the Court will eventually have to address its failure in Ocean Port to give adequate consideration to the importance of real independence in the administrative process established by the executive branch, both in matters generally and more particularly in disciplinary proceedings. The disciplinary process for Alberta teachers, recently added to the Education Act, SA 2012, c E-0.3 by Bill 15, is a case in point. The Minister of Education stated at the beginning of second reading for the bill that the Commissioner in charge of the disciplinary process “would operate at arm’s length from the ministry.” (Alberta Hansard, April 21 2022 at 767) This post examines Bill 15 to assess the accuracy of the Minister’s claim, and concludes that not only is the Commissioner not sufficiently independent of the Minister, the disciplinary process as a whole exhibits very little indicia of being independent. Continue reading →

Former Minister of Justice Attempted to Interfere with the Administration of Justice: Kent Report

By: Shaun Fluker, Nigel Bankes & Martin Olszynski

PDF Version: Former Minister of Justice Attempted to Interfere with the Administration of Justice: Kent Report

Matter Commented On: The Kent Report (February 15, 2022)

On February 25, the Premier issued a brief statement announcing that former Minister of Justice, Kaycee Madu, was being shifted to Minister of Labour and Immigration, and that the former Minister of Labour and Immigration, Tyler Shandro, is now the Minister of Justice. This Friday afternoon swap was in response to the findings of retired Justice Adèle Kent in her investigation into a phone call made by Minister Madu to the Edmonton Chief of Police on the morning of March 10, 2021, concerning a traffic ticket issued to him that very same morning. As we discuss at the end of this post, this investigation seemingly only occurred because CBC news reporter Elise Von Sheel revealed the making of the call in a news story published on January 17, 2022. Several hours after the CBC broke the news, Premier Kenney announced on Twitter that Minister Madu was temporarily stepping aside from his ministerial duties while an independent investigation reviewed whether the call amounted to an interference with the administration of justice. The Kent Report concludes that the call (1) was an attempt to interfere with the administration of justice and (2) created a reasonable perception of an interference with the administration of justice. In this post, we summarize and comment on the findings of the Kent Report. Continue reading →

Alberta Adds Health Care Facilities to the Scope of Anti-Protest Legislation

By: Shaun Fluker

PDF Version: Alberta Adds Health Care Facilities to the Scope of Anti-Protest Legislation

Legislation Commented On: Critical Infrastructure Defence Regulation, AR 169/2021

On September 29, 2021, and on the basis of authority granted under section 5 of the Critical Infrastructure Defence Act, SA 2020, c C-32.7, the Lieutenant Governor in Council issued Order in Council 265/2021 to enact the Critical Infrastructure Defence Regulation. This Regulation adds prescribed health care facilities – including hospitals – to the list of essential infrastructure covered by the Critical Infrastructure Defence Act, which thereby applies the prohibitions in the Act to those facilities. The Premier announced this new regulatory measure on September 28 as a response to anti-vaccine protests held recently at health care facilities. The timing of this announcement and the subsequent enactment of the Regulation was ideal for using it as a discussion item with 1Ls in Law 403 – Legislation – to illustrate how regulations are enacted and come into force. This short comment is intended to share that analysis with ABlawg readers. Continue reading →