By Shawn Buckley

Albertans have just been subjected to a shocking bait-and-switch on their Bill of Rights. Albertans were told by their government that the Alberta Bill of Rights was being strengthened to protect the citizen from the government. The truth was the opposite. The Bill of Rights was being amended to protect the government from the citizen.

This political bait-and-switch provides us with the useful lesson that in Canada, we do not have “rights.” Rather, we have “privileges.”

A right is something that belongs to the citizen. Because a right belongs to the citizen, it cannot be taken away by the government. A privilege is something granted to the citizen by the government. A privilege belongs to the government. Because a privilege belongs to the government, the government can take a privilege away. The Alberta Bill of Rights is a perfect example. It is a statute of the Legislature. If we had rights, we would not need the government to pass a statute saying we have rights. Indeed, because we need governments to grant us “rights” by passing a Bill of Rights or having the United Kingdom (UK) Parliament pass our Canadian Charter of Rights and Freedoms, we know that we have no rights. Rather, we have privileges.

I refer to the UK Parliament because the Canadian Constitution is a collection of statutes passed by the UK Parliament, including our Canadian Charter of Rights and Freedoms. Canadians have no representation in the UK Parliament. In other words, we have no representation in front of the body that has determined our government structure and has determined which privileges we are to be afforded in our Constitution.

Because we have privileges granted to us by the government, the privileges can be taken away. This is what just happened with the Alberta Bill of Rights. Our privileges were taken away.

The Alberta government was telling us we were being protected. We were told that the government was giving us the right to refuse medical treatment. We were told the Bill of Rights was being strengthened to protect Albertans from the government. This was political messaging that was untrue.

In reality, Albertans have lost privileges. The biggest loss is to our former privilege to be able to refuse medical treatment. Under the common law, all Canadians have the privilege to refuse medical treatment, even if refusal would result in their death. Courts have also read this privilege into the Canadian Charter of Rights and Freedoms. The privilege to refuse medical treatment in our common law and in our Charter has no restrictions.

One of my grandmothers, who was a nurse, came down with cancer. She reasoned she was not going to survive. She reasoned that she would suffer the least if she refused treatment. And she was allowed to refuse treatment because of her privilege to be able to refuse medical treatment.

If the Alberta government meant to protect us by adding the privilege to be able to refuse medical treatment into the Bill of Rights, the government would just add the existing privilege. But that is not what happened. Rather, the Alberta government created a new restriction to our existing privilege to refuse medical treatment. Now, in Alberta, medical treatments can be forced on us without our consent if refusing the treatment is “likely to cause substantial harm” to us or to others. The only treatment that now cannot be forced on us in Alberta is vaccination. If my grandmother was alive today in Alberta, she could be forced under the Bill of Rights to suffer through cancer treatments she did not want.

Now, whenever anyone is arguing anywhere in Canada that they have the privilege to refuse a medical treatment, the government lawyers will bring up this new Alberta restriction. They will introduce into the minds of the Courts that our previously unlimited privilege to refuse medical treatment is actually limited. The government lawyers will now argue that we can be forced to take medical treatments to protect ourselves and others. I am sick to my stomach that this restriction was introduced into the Bill of Rights. This is straight out of George Orwell’s book, 1984. Bills of rights are meant to protect us from the government. Now, the Alberta Bill of Rights takes away a fundamental protection. Now, the government has power over our bodies it did not have before.

The most effective way to make privileges in a bill of rights meaningless is to add a justification clause. The best example of a justification clause that takes rights away is section 1 of the Canadian Charter of Rights and Freedoms. If a person manages to convince a Court that one of their Charter “rights” has been violated, then section 1 enables the government to argue that the violation was justified in the circumstances. Lawyer James Kitchen testified at the National Citizens Inquiry that section 1 has rendered our Charter “rights” meaningless. I agree with Mr. Kitchen. Section 1 has made the privileges in the Charter largely meaningless.

If the Alberta government wanted to make the “rights” in the Bill of Rights meaningless, the best way to do so would be to introduce a justification clause similar to section 1 of the Charter. This is exactly what the Alberta government has done. They have introduced a justification clause almost identical to section 1 of the Charter. But the Alberta government did not stop there; they went further. Under the Charter, if the government justifies violating your right, at least there is a Court precedent that your right was violated. You have only lost the ability to get a remedy when a government argues the violation was justified under section 1 of the Charter.

Under the amended Alberta Bill of Rights, if the government succeeds in justifying the violation of your right, at law, your right is deemed not to have been violated in the first place. This means that there is not even a Court precedent to say your right was violated. These justification clauses render the Bill of Rights worse than the Charter.

Prior to these amendments, the Bill of Rights had no justification clauses. This made the Bill of Rights stronger than the Charter. Now, the Bill of Rights is weaker than the Charter. The new amendments make the rights that were already in the Bill of Rights meaningless. We have lost rights.

To make matters worse, the amendments add clauses that block the Courts from awarding damages for violations of our rights. If the government takes your property or severely interferes with all use of your property, you can get damages. But this is already the law in Alberta. What is new is that for all other violations of our “rights,” now there is no remedy in Alberta. Courts can no longer order the government to pay compensation for violating our “rights.”

A right without a remedy is not a right. This also creates a huge double standard. Alberta citizens have to comply with the Alberta Human Rights Act, which applies to citizens. Alberta citizens are personally liable for any damages they cause for violating the Alberta Human Rights Act. It is strange indeed that if citizens violate the rights of others, the citizens are personally liable.  However, if the government violates the rights of citizens in the Bill of Rights, the government is not liable to the citizen.

The government of Danielle Smith will likely go down in Canadian History as the government that has undermined the privileges of its citizens more than any other government. Almost no one in Alberta understands that they have been subject to a bait-and-switch. The amendments to the Bill of Rights are being celebrated.

I am always amazed when a government gains political popularity for hurting its citizens.

This is a sad day for all Canadians.

Shawn Buckley is a constitutional lawyer and President of the Natural Health Products Protection Association.