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Evan Menzies: Alberta’s grassroots policy success stories

Commentary

As United Conservative members fill out their ballots and deliver their verdict on Jason Kenney next month, it’s worth recognizing that notwithstanding the party’s current intra-tensions, the Kenney government has enacted a number of bold and innovative policies over its first three years in office. Many of them can find their origins in ideas that conservative voices in the province have advanced for a long time.

Through much of the 2010s, Alberta’s Wildrose party was the beating heart (and fertile mind) of conservative ideas in the province. Bold policy ideas were synonymous with the party brand, so much so that the 2012 election slogan “New Ideas that Put Albertans First” was splashed across every press release and party advertisement.

Wildrose’s major policy pillars included a fiscal overhaul of government to restore balanced budgets and low taxes, an emphasis on using market-based mechanisms to lower wait times within a universal health care system, greater choice in Alberta’s education system, returning to core disciplines like math and literacy in the classroom, and bringing about transformational democratic reform.

These policy priorities were reflected in 2012 under Danielle Smith’s leadership, and the policy formula remained largely the same under Brian Jean in 2015. Yet it’s actually been the current Alberta government that has brought policy expression to these ideas.

On the budget, the United Conservative government faced significant criticism over reductions in overall spending across departments and holding the line on education spending entirely. There were tough battles fought with public sector unions to bring Alberta’s bloated spending closer to the average among major Canadian provinces. MLAs and the Cabinet also rolled back their own salaries as part of these efforts.

Today, Alberta faces the welcome policy challenge of how to best deploy fiscal surpluses and create a new savings strategy.A debt-free Alberta by 2030? It’s possible Natural resource revenues helped, but this didn’t happen by accident. If Alberta stayed under the previous NDP government’s projected spending growth, this year’s deficit would have soared beyond $6 billion, an eye-watering number for borrowing in any normal year before COVID laid havoc on the province’s finances.

In the 2015 campaign, then Wildrose leader Brian Jean was relentlessly focused on a promise to not raise taxes and said he would reverse the increase of the provincial gas tax from 10 cents to 13 cents a litre. Just this month, Kenney scrapped the gas tax altogether.

Every iteration of Wildrose leadership pushed for the restoration of the Alberta Advantage in the province’s overall macroeconomic environment. Today, Alberta has the lowest taxes to run a business in Canada, and, after slashing more than 20 percent of red tape across government, now has the lowest red tape burden too.

On health care, both the 2012 and 2015 Wildrose campaigns pledged a patient wait time guarantee. That core idea evolved into the Alberta Surgical Wait Time Initiative, a program that has already helped ease surgical wait times even after two years of a pandemic that tested and stretched our health-care system capacity.

In education, Wildrose leaders and MLAs were major defenders of parental choice. The Kenney government has enshrined those rights into law. While the NDP government blocked the expansion of charter schools, the current Education Minister Adriana LaGrange has seen them expand.

Wildrose fought new fads in education like discovery math that saw declining outcomes for students. The Kenney government has similarly been laser-focused on restoring core competencies for students in math and literacy.“But McMann found that after one year with the new curriculum, Fort Vermilion students had on average two full years of growth in math and three full years in literacy.” https://edmontonjournal.com/opinion/columnists/david-staples-hey-alberta-politicians-leave-those-kids-alone

In the battle for democratic reform, Wildrose time and time again fought to implement a recall law in private member legislation, an initiative that was shut down by previous legislatures. Today, Alberta now has a recall statute on the books.

In 2012, Wildrose introduced citizen-initiated referenda as a core part of its policy platform. In 2021, the UCP government passed it into law.

And there have been other Wildrose ideas that are now Alberta government policy too. Bill 6 was repealed. The Alberta Provincial Police force is back on the policy map after even previous Wildrose leaders abandoned it. Alberta has shown the strongest provincial opposition to the carbon tax, has sued the federal government on several rounds of legislation to defend provincial rights, and held a referendum to battle equalization—an initiative more than 60 percent of Albertans supported at the ballot box.“When it comes to if the Alberta government should ask the federal government to remove Section 36(2) of the Constitution Act, 1982 — it was a resounding ‘yes.’ More than 640,000 Albertans — 61.7 per cent — voted in favour of the question. Just under 400,000 Albertans voted ‘no.'” https://globalnews.ca/news/8326174/kenney-equalization-daylight-saving-time-referendum-results/

The key point here is that for those conservative activists and intellectuals who advanced these issues under the Wildrose party’s banner, the Kenney government has actually seen many, if not most, of these policies through.

While he may be governing under a United Conservative banner, when it comes to public policy, Jason Kenney’s record shows he has been Alberta’s first Wildrose premier. He received a massive mandate to see these policies through with more than a million votes and brought these ideas into the mainstream—no easy task. Has Jason Kenney been perfect? No. He’s admitted as much himself.

Members of Alberta’s United Conservatives will ultimately have their final verdict on his leadership,“A decision will be announced on May 18. Should Kenney not receive a majority, the party would need to host a contest to select a new leader.” https://edmonton.ctvnews.ca/ucp-leadership-review-of-alberta-premier-jason-kenney-officially-begins-1.5855573 but those who fought for these policy ideas can celebrate all that has been accomplished since 2019.

Joanna Baron: Enforcement of the Charter should not be left to the courts alone

Commentary

In April 2021, Doug Ford acted out of desperation to tamp down on a surging third wave of Covid-19 in Ontario. He announced the pandemic’s most draconian measures so far: a stay-at-home order enforced by eye-popping new police powers that would enable cops to stop any person in the province and demand them to provide proof of their reason for not being home.

Most of you will remember what happened next: nearly every local police force in the province announced that they would, ahem, not be implementing this new policy as it was overbroad and presented the risk of disproportionately targeting communities and demographics that were already subject to over-policing.

The policy was also a blatant violation of Charter rights against arbitrary arrest and detention, as well as search and seizure, as it would seem to give the police license to detain individuals for the mere reason of being outside of their homes and without even the facial appearance of reasonable suspicion.

At the time that cabinet was debating the merits of this policy, its likely unconstitutionality was raised by AG Doug Downey. Ford’s cabinet must have known that the order would be subject to Charter challenges brought by civil liberties groups, but probably figured that by the time any challenge made its way before the courts, the enhanced police powers would be revoked. They went ahead with the policy.

Ford’s apparent view that Charter rights are for politicians to freely side-step and leave to be adjudicated by the courts later is a misunderstanding of the intention of a constitutional framework and shouldn’t be tolerated forty years on from its adoption.

Perhaps we ought to expect behaviour like this from an administration like Ford’s, given his apparent antipathy towards Charter rights. It was Ford, after all, who invoked the notwithstanding clause for the first time in Ontario’s history vis-a-vis his notorious decision to unilaterally reduce the number of electoral wards in advance of Toronto city elections in 2018. (It turned out that invoking the clause was unnecessary, in any event, since municipal elections are not constitutionally protected).

It turns out, though, that Justin Trudeau and his so-called “Charter Party” LiberalsThe Charter Party and the work of Parliament aren’t more assiduous in their regard for themselves as being bound by the limits of constitutional rights, despite lip service practices like instructing the Department of Justice to conduct a review and affix a “Charter Statement” to new legislation.

The Trudeau government invoked the Emergencies Act despite both border crossings and the Ottawa “occupation” being effectively cleared under normal police powers. In invoking the Act, Trudeau also brought in economic measures which, it is not hyperbolic to say, took a wrecking-ball to well-established rights against unlawful search and seizure and privacy. Per Minister Freeland’s announcement on February 14th, banks would henceforth be empowered to freeze accounts of those “directly or indirectly” supporting the protests, without any court order or warrant and insulated from civil liability.

You would expect such a gob-smacking announcement from the “Charter Party” to contain at least passing reference to consideration of how the attendant violation of Charter rights could be justified (clearly the Liberals were well past the point of bothering to rubber-stamp the policy with a “Charter statement”).

It’s trite law that a warrant is needed prior to the search and seizure of private property. However, Freeland referred only to “consulting with banks”. In a press conference a few days later, PM Trudeau admitted to some ambiguity about whether his invocation of the Act was justified, but welcomed “court challenges that have already been filed.”

Constitutional democracy requires that all actors assume that they are bound by the foundational rules of the game. Professor Gregoire Webber has written in support of the responsibility of Parliament in promoting and constructing the meaning of rights in dialogue with the courts: “the first and most important responsibility for protecting, respecting, and promoting the rights of Canadians rests with government and Parliament.”The Charter Party and the work of Parliament

It stands to reason that a robust constitutional culture requires all three branches of government—executive, legislative, and judicial—to see themselves as active in preserving a culture of constitutionalism.

Legal commentators, myself included, have been critical of the role of the Supreme Court as a “roving law commission” and superlegislator in the Charter era. This was certainly true during the days of the McLachlin court from 2000 to 2017. The Court-as-a-sueprlegislator perhaps reached its zenith with Rosalie Abella’s notorious determination in a 2015 decision overturning thirty years of judicial precedent on public sector unions’ right to strike. She mused that said right was due for its “constitutional benediction”.Saskatchewan Federation of Labour v. Saskatchewan

There are some indicationsCanada’s Supreme Court is off-balance as ‘large and liberal’ consensus on the Charter falls apart that the current Court has retrenched from a posture of outright judicial activism and embraced a textually-rooted approach—essentially, that judges are bound to apply the law as it was written and intended, and cannot make law. However, when the executive and legislative branches fashion themselves as being able to act free from the strictures of Charter rights, instead awaiting a final determination as to whether it acted out of bounds from the courts, it leaves a disproportionate burden of enforcing the Charter to the courts. This, in turn, encourages strident judicial activism in the name of a sort of rebalancing.

But it is legislatures and the executive, not courts, who are actually positioned to specify exactly what the contents of rights are. They are in the business of directing bureaucrats and police forces, consulting with constituents, and titrating proportional responses. Judges, after all, are cloistered and removed from the real-world impacts of their decisions. They cannot carry the full burden of Charter ownership.

As the Charter arrives at middle age with its 40th birthday, it’s time that Canada becomes a mature constitutional democracy, where all public actors see their power as being circumscribed by rights.