The most libertarian-minded premier in modern Alberta history is now laying the groundwork to possibly become one of the most prolific users of the Charter of Rights and Freedom’s rights-overriding notwithstanding clause in Canadian history.
Danielle Smith maintains that she is determined to see her UCP government’s three laws governing transgender issues — in health, education and sport — survive court challenges.
But her interest in using the Constitution’s so-called nuclear option to do so comes after a political lifetime believing in the protection of people’s fundamental rights and freedoms.
How libertarian is she? She is, after all, the only premier in Alberta history known to have an arm tattoo with the cuneiform symbol for “liberty” or “freedom.”
Smith was also proud to expand her province’s own Charter-like document, the Alberta Bill of Rights, last year, adding to it more language about property rights, gun ownership and refusing medical treatments. When she debated those amendments in the legislature last year, she appealed to classical liberal values — small-L liberal, let’s be clear — evoking 17th-century philosopher John Locke.
“We have rights that are independent of particular laws. They exist regardless of what the laws are,” Smith said.
Later in the speech, she referred to fundamental freedoms being of “foundational importance to Albertan society,” and “inalienable,” “granted by virtue of being human.”
Near the address’s end, Smith noted that in areas where those government laws and rights might conflict, the provincial Bill of Rights has a notwithstanding clause to override those rights provisions (like the Charter does).
“I am quite certain that there will be very few areas, Mr. Speaker, where that will apply.”
Less than a year later, a leaked provincial memo reveals that Smith’s office has directed officials to prepare legislation that invokes the notwithstanding clause to override rights in the three transgender bills her government introduced in that same fall 2024 legislature sitting.
Radio-Canada has obtained a copy of that memo from deputy justice minister Malcolm Lavoie, first reported on by The Canadian Press.
The three laws serve to ban transgender women and girls from playing in amateur female sports, require parental consent or notification when changing names or pronouns in school, and restrict young Albertans from gender-affirming treatment and surgery.
2SLGTQ+ advocacy groups have launched legal challenges against the latter two laws, winning a temporary injunction to block enactment of transgender health care restrictions.
In both cases, Egale and Skipping Stone have argued that the UCP government’s bills violated Charter sections which safeguard “life, liberty and security of the person” and equality before the law.
While Smith said this weekend her “preference is to go to court” and defend the constitutionality of her laws against these challenges, she remains open to using the override clause, to prevent courts from knocking down her legislation because of Charter considerations.
Smith’s longstanding interest in protecting basic rights and freedoms has largely aligned with that of her United Conservative Party’s activist base.
It shared her anger over the way governments mandated vaccines and restricted gatherings and business during the pandemic; restrictions upheld by courts based on the Charter’s first clause, which guarantees the rights “subject only to such reasonable limits … as can be demonstrably justified in a free and democratic society.”
When the group of UCP activists known as the “Black Hats” promoted a much more expansively rewritten provincial bill of rights, its proposed revisions included the elimination of the Alberta bill’s own versions of the notwithstanding clause, as well as the “reasonable limits” clause. That would effectively have meant that neither governments nor courts could decide to condone the violation of Albertans’ rights.
At last fall’s UCP convention, the same week Smith evoked Locke in a legislature speech, her party’s grassroots overwhelmingly endorsed the Black Hats’ proposed bill of rights.
However, those same UCP convention-goers cheered enthusiastically when Smith touted her trio of transgender policy bills at the convention, in the name of parental rights, protection of youth and “fairness in sport.”
Some of her supporters may be wary of a government’s ability to override rights, but there are those who will also be deeply excited by their premiers’ determination to defend their wishes on transgender issues — the sort of balancing of competing interests any political actor engages in when the notwithstanding clause enters the discussion.
But she’s become a defender of governments’ right and ability to invoke the clause.
She declared it “integral” to the Charter and an “unassailable provincial constitutional right” in a social media post Thursday. She did so without reference to any provincial legislation, but in Alberta’s defence of Quebec’s decision to invoke the notwithstanding clause in its secularism law, and in criticism of Ottawa’s intervention against Quebec’s move.
Smith’s position is backed up by the legal argument Alberta filed in that forthcoming Supreme Court case. Co-written by Lavoie, it affirms the notwithstanding clause is vital for federalism.
“One of the key provincial concerns with the Charter was that it could have a centralizing, homogenizing tendency, replacing the diverse judgments of provincial legislatures with those of federally-appointed judges,” it states.
This argument, from a government that jealously guards its jurisdictional turf, would be of no surprise to law professors Stéphane Séraphin and Geoffrey Sigalet, who in a report last fall anticipated Alberta going this planned route for its transgender bills (like Saskatchewan has done with a similar pronouns policy).
“If the Alberta government decides to invoke the notwithstanding clause, it will not only be signalling the importance of these proposed measures, but also ensuring that its own distinctive understanding of the Charter is respected by the courts,” the pair wrote in a 2024 Macdonald-Laurier Institute paper.
In an interview with CBC’s Front Burner podcast that aired Monday, the premier underlined that politicians’ views on rights will matter at the end of the day.
“When you have a difference of opinion, then you litigate it out, but in the end, I believe in parliamentary supremacy and that means that politicians do get to have the final say,” she said.
Smith’s long-abiding belief in safeguarding rights, it appears, is complemented by a belief that politicians’ interpretation of rights should trump the courts’.
The Alberta government’s argument in the Quebec case also cites the western premiers who co-authored the Charter in 1982, and their insistence that the notwithstanding measure ensured “supremacy of elected people over appointed people.”
Those are former premier Peter Lougheed’s words in 1981. In years to come, he’d defend the notwithstanding clause, but also express wariness of potential overapplication.
In a major lecture he delivered at University of Calgary in 1991, he evoked then-prime minister Brian Mulroney’s caution that the Constitution was “not worth the paper it was printed on” after a Quebec government’s override of rights to protect French-only signs.
He criticized Saskatchewan’s 1986 use of the override to shield a labour relations act pre-emptively, before the courts had dealt with it.
“In my mind, such an action is undemocratic in that the purpose of Section 33 was ultimate supremacy of Parliament over the judiciary, not domination over or exclusion of the judiciary’s role in interpreting the relevant sections of the Charter of Rights,” Lougheed said.
He proposed the notwithstanding clause language be changed, so it could only be invoked after a government had exhausted all judicial hearings and appeals.
Lougheed didn’t live to see its more recent pre-emptive invocations by Quebec and Saskatchewan again, as well as by Ontario.
Or, potentially this fall, by Alberta and its avowedly libertarian premier, who shares his zeal for charters that enshrine rights and notwithstanding clauses that squelch them, but may have very different views on how the latter should be used.
