Premier Danielle Smith intends to strengthen the little-known Alberta Bill of Rights this fall to include protections for people who refuse to be vaccinated, but she’s facing heavy pressure from United Conservative activists to go much farther in her overhaul, CBC News has learned.
A group from the premier’s riding in Medicine Hat, which calls itself the Black Hat Gang, has met with senior government officials and proposed a massive new draft of Alberta’s rights document. The “gang” wants it to enshrine an array of new rights, including confidentiality of health information and “informed consent” to medical care, as well as rights to keep and bear firearms, to use “sufficient force” to defend one’s property, and “freedom from excessive taxation.”
It’s not clear how much influence Smith’s constituents will have on the legislation that her government plans to introduce this fall, right before the UCP’s annual convention. But the premier, facing a leadership review at that convention, has been heavily promoting her proposed Bill of Rights to her party’s grassroots at multiple members-only gatherings.
What’s more, party president Robert Smith told UCP members in a newsletter last month that the updated rights bill will have “95 per cent” of what party members supported at last year’s party convention — ideas that Smith’s constituency group had initially put forth at that gathering, and then proposed to the UCP government this year.
Some of the same proposals for new liberties and protections were also recommended last year by the public health emergencies review panel, helmed by former politician Preston Manning, a prominent critic of COVID restrictions and vaccine mandates.
Smith’s reforms stand to give more teeth to a rights document that’s been on the books since 1972, but has been vastly overshadowed in court decisions and the public conscience by the Canadian Charter of Rights and Freedoms.
While the Charter is a constitutional document and can be used to strike down laws and regulations, the Alberta Bill of Rights is only a statute (or law), and it’s not as clear that judges can use one statute to trump others, says Eric Adams, a University of Alberta law professor.
However, both the Black Hat Gang and Manning’s panel recommend the Smith government establish its Bill of Rights as part of the province’s constitution, and therefore a supreme law that courts could use to affect other laws.
Modelled after the British system, there is no written constitution of Alberta — or any other province, per se. It consists of a series of other federal and provincial laws that make up the province’s supreme governing law. A province has the legal right to pass legislation adding elements to its unwritten constitution, as Alberta did in 1990 to confirm the self-governance of Métis in Alberta.
Smith hasn’t yet tipped her hand too much about her Bill of Rights overhaul, except for one change she enticed UCP members with at a Calgary event last month.
“The amendments will make it illegal for the government to discriminate against any individual for refusing a medical treatment. And it needs to be said, including refusing to take a vaccine you don’t want to take,” she told the gathering, according to a recording reviewed by CBC News.
This echoes a campaign promise Smith made in 2022 to help secure the UCP leadership: that she’d add the right to be unvaccinated into the Alberta Human Rights Act, a separate document from the Bill of Rights. Smith ultimately abandoned that idea, and did not propose it or any vaccine-related reform in the provincial election last year.
But the proposal’s resurrection in the Bill of Rights could wind up having impacts beyond the COVID-19 vaccine mandate that so riled the United Conservative base.
A longstanding provincial regulation requires all workers in health care and at daycare facilities be immunized against rubella (also known as German measles). Such a provincial rule could be subject to challenge under a new Bill of Rights protection.
A spokesperson from Smith’s office told CBC News that the government is considering various other Bill of Rights amendments to “strengthen Albertans’ individual and property rights” — news that might please the Black Hat Gang.
It’s an informal group of UCP members, mostly from southeast Alberta, who have consolidated ideas from the Manning panel, resolutions from last year’s party convention and other concepts into a greatly expanded Bill of Rights that’s been circulated among government and party officials.
“These Black Hat gentlemen, these guys are not world-renowned legal scholars,” lawyer Leighton Grey, an ally of the group, said on a webinar in July. “They’re not billionaires … These are everyday Albertans like you. And they just decided that they were very concerned about the direction the province is going and they figured out a plan to do something about it.”
The self-described “gang” met in April with Red Deer-South MLA Jason Stephan, the chair of the government’s legislative review committee. The premier has tasked him to analyse the Manning panel’s recommendations and potential Bill of Rights reforms.
“Yesterday included a meeting on improving our laws to strengthen and protect our freedoms from harmful interference,” Stephan wrote on social media after the meeting, alongside a picture of him with several people, mostly wearing black cowboy hats.
Grey sported a belt buckle to accompany his cowboy hat and cargo pants in the picture. He declined an interview, but told the webinar he was involved with the Black Hat Gang to help them turn their ideas into more of a “legal document.”
Other key figures with the gang include Mitch Sylvestre, president of the Bonnyville-Cold Lake UCP riding association, who is also active with the grassroots organizers Take Back Alberta. There is also Scott Payne— son of former federal Conservative MP LaVar Payne — who sported an “Alberta rights now” shirt at last year’s UCP convention.
Payne, Sylvestre and Grey each declined interview requests from CBC News. At the UCP provincial board’s retreat next week, the directors will “meet with Scott Payne regarding the Alberta Bill of Rights,” according to a party newsletter.
In the webinar, co-hosted by pro-Alberta-independence group Alberta Prosperity Project, Grey divulged much of what’s in the gang’s proposed Bill of Rights. It adds 22 freedoms to what’s currently in the bill, more than doubling its current length.
Some overlap with what’s in the current bill and the Charter, like freedom of speech and religion.
But they also include some U.S.-inspired freedoms, such as “life, liberty, property and the pursuit of happiness,” as well as the right to remain silent and one protecting firearm ownership — a protection that has greatly expanded access to guns south of the border.
“We’re very hopeful that the right to keep and bear arms will be in the document,” Grey said. “It certainly is in the document that we submitted to them.”
Grey, who has represented Albertans in court to challenge COVID public health restrictions, acknowledged on the webinar that not everything the group drafted for the government will be introduced as amendments. Referring to the one that mimics the “stand your ground” law that lets some Americans shoot property intruders as self-defence, Grey said: “I don’t know if all of these are going to make it into the final product.”
He also said that he and members of the Black Hat Gang have discussed the Bill of Rights with officials in Alberta Justice. Asked about who had met the “gang” members, spokespeople for the premier and Justice Minister Mickey Amery sent identical statements which did not answer the question:
“Alberta’s government has consulted with various groups and hundreds of individuals on potential amendments to the Alberta Bill of Rights.”
On the webinar, Grey touted another proposed addition to the rights document: to “democratically elect and recall legislators by voting through secret paper ballots to be manually hand-counted.”
This dovetails with a resolution at last year’s UCP convention to prohibit vote-counting machines, and the Smith government’s recent law that bans them in municipal elections.
“Essentially what it means is the NDP wouldn’t be able to cheat using voting machines,” Grey told his hosts. There is no evidence of any improprieties with mechanically counted advance ballots in the 2023 provincial election, nor of any formal complaints anyone filed to Elections Alberta.
The Black Hat Gang’s lawyer ally also tried tying a beefed-up Bill of Rights to the province’s disputes with Ottawa.
“This new Bill of Rights is aimed at providing protections for Albertans against federal government overreach,” Grey said. “It really is part of the whole sovereignty project that Premier Smith is so committed to.”
However, the province’s Bill of Rights has no power over any federal laws — it only concerns provincial legislation and rights, said Adams, the law professor.
But he said there is the potential that the Smith government could fortify its 52-year-old Bill of Rights with constitution-like powers to make it a sort of Charter of Rights within provincial jurisdiction.
“There is the raw legal power to do so,” Adams said. But there is a complex political question embedded in that decision, he added.
“Any sitting government in the middle of its time in office suggests that it has the mandate to alter the fundamental law of Alberta without having campaigned on that question, I think, opens itself to the question that something as important as the Alberta constitution deserves more and better.”