The Potential Consequences and Implications of Bill 81
The final sitting of Alberta’s legislative session was wrapped up after hours of heated debate and the passing of a controversial new bill. Bill 81, the Election Statutes Amendment Act, received Royal Assent on December 8, 2021. Its amendments, intended to make the voting process easier and to improve election finance rules, will have repercussions on politics in our province. Three United Conservative Party MLAs voted against the Bill in its third and final reading, unusually departing from caucus solidarity: Dave Hanson, Leela Aheer, and Richard Gotfried. Critics of the Bill have labeled it undemocratic and contrary to the Canadian Charter of Rights and Freedoms.
Bill 81 amends Alberta’s election finance laws to address what the UCP called the “AFL loophole”. As a third-party advertiser, the Alberta Federation of Labour (“AFL”) has actively criticized UCP policy and even launched a “Stand Up to Kenney” campaign. At the same time, the AFL controls two seats on the NDP provincial council. The UCP argues that this makes the AFL a branch of the NDP, able to skirt the financing and spending laws applicable to political parties. The new Bill prohibits any individuals or groups “affiliated” with a registered party from third-party political advertising. It directly targets the purported loophole and makes Kenney good on the promise he campaigned on to close it.
In closing the AFL loophole, the new Bill shuts out the AFL as a vocal UCP critic. However, the wide net cast by Bill 81’s vague definition of affiliation could catch many other groups. The Bill grants the Chief Electoral Officer broad discretion, and a group may be deemed “affiliated” if any member makes a public statement in support of or in opposition to a registered party. The constitutional concerns start here—namely, that the Bill stifles freedom of expression, protected under section 2(b) of the Charter. These concerns are exacerbated by Bill 81’s changes to election advertising. The Bill allows only “a person ordinarily registered in Alberta” to contribute to third-party election advertising. Because only individuals are permitted to pay for election advertising, unions and civil society are, in effect, silenced during the election period. Altogether, these provisions will impede a number of groups from speaking out on government policy that affects them.
Our country values free expression as being crucial to democratic governance. The Supreme Court of Canada maintains that the connection between freedom of expression and political process is “perhaps the linchpin” of section 2(b) protection[1]. The courts often have no trouble finding that a freedom of expression infringement has occurred. However, many infringing laws and government actions are nevertheless upheld. Charter rights are not absolute, and section 1 of the Charter allows governments to demonstrate that infringements are reasonably justified. Simply put: Bill 81 may infringe freedom of expression, but that’s only the first hurdle
In February 2021, a similarly controversial bill was passed in Ontario by Ford’s government. Bill 254, Protecting Ontario Elections Act, increased restrictions and regulations of third parties wishing to speak out on elections or issues of public policy. It immediately stirred controversy because of its perceived impact on freedom of expression, and a Charter challenge was led by the Working Families Coalition (“WFC”). By June 2021, Ontario’s Superior Court of Justice struck down several of Bill 254’s crucial provisions for infringing s 2(b) rights. The infringements were not saved by s 1.
The WFC’s successful Charter challenge may be encouraging to groups in Alberta wishing to bring an analogous case against Bill 81. However, the “success” was short lived. The Ontario government almost immediately pushed a new bill through the legislature that reversed the decision of the Court, invoking yet another section of the Charter – section 33. Section 33, also known as the “notwithstanding clause” allows Parliament or provincial legislatures to temporarily override certain portions of the Charter when creating laws. A notwithstanding clause declaration expires after 5 years but can be reenacted indefinitely. While use of the provision across Canada is rare, section 33 adds another layer of complexity to Charter challenges generally and more to consider in the question of Bill 81. Ford’s government maintained that in invoking the clause, it protected elections from outside influence by whatever means necessary. A further challenge of the section 33 override in December 2021 failed.
[1] R. v. Keegstra, [1990] 3 SCR 697