Eric M. Adams teaches constitutional law at the University of Alberta, Faculty of Law
A remarkable moment in popular constitutionalism took place in Alberta this week. A private member's bill which, following similar initiatives in Ontario and Manitoba, would have compelled schools and school boards to allow "gay-straight alliance" groups, turned into a political firestorm for Jim Prentice and his Progressive Conservative government.
Introducing its own more muted legislation in response produced several tense legislative debates, dissension in party ranks, accusations of discrimination, and thousands of outraged blogs, editorials, Facebook posts, and tweets from across the province. After suddenly pulling the bill from the legislature, the new premier claimed that a "pause" was necessary in order to allow the government to "listen to Albertans" and "get it right".
Alberta's government entered the week well aware of the ability of courts to constrain government policy under the Charter of Rights and Freedoms. It ended the week all too aware of the power of rights in the hands of everyday people.
A large part of the controversy stemmed from the government's suggestion that the rights at stake were complicated and conflicting rather than clear and one-sided. The government's proposed legislation would have symbolically added sexual orientation to the prohibited grounds of discrimination in the Alberta Bill of Rights, but also added "the right of parents to make informed decisions respecting the education of their children" to the list of entrenched "human rights and fundamental freedoms" within Alberta. As for the gay-straight alliances that sparked the debate in the first place, the legislation gave the ultimate decision of whether to allow such groups to the supervising school board, whose elected trustees, the government emphasized, have rights to autonomy. Finally, Mr. Prentice reminded that Alberta's Catholic schools enjoy special constitutional protection of their "rights and privileges … of religious instruction" under the Alberta Act. LGBT youth certainly had rights, the government acknowledged, but so did parents, school boards, and the faith-based public school system. "Rights are difficult," Mr. Prentice noted in his press conference, "and the conflict between competing rights is difficult for all of us."
Throughout, critics remained unconvinced, pronouncing human rights compromises, especially in the context of a vulnerable minority, regressive and cowardly. Days after hoisting the Grey Cup, CFL star Jon Cornish characterized the government's legislation as "unacceptable". A normally chipper morning television host in Edmonton could barely contain his agitated criticism of the bill. Others raised the spectre of the Jim Crow American south and the noxious racism of the separate but equal doctrine. "We didn't give women half a vote," Conservative backbencher and former cabinet minister Thomas Lukaszuk pointed out. In response to Mr. Prentice's comment that "rights are never absolute," Rick Mercer tweeted, "maybe that should be on the licence plate." All of which was re-tweeted, re-posted, and quoted online. The power and force of the objections framed in the language of human rights captured the public's attention and, ultimately, the government's.
What is the way forward in a dilemma in which the government sees rights colliding at every turn? The key will be to acknowledge the multiplicity of rights at issue, while at the same time recognizing that parallel rights need not conflict. The principle of reconciling rather than placing rights in compromise is one the under-appreciated foundations of the Supreme Court of Canada's Charter jurisprudence. Most seemingly intractable rights disputes are better resolved by carefully defining the core and limiting features of the rights themselves, of imagining a co-existence rather than battle of competing rights. Mr. Prentice is certainly right that rights are not absolute. The opening section of the Charter guarantees rights and freedoms and subjects them to reasonable limitations. The concept of limits may not make for a good licence plate slogan, but society would be ungovernable without it. And Mr. Prentice is right too that freedom of religion means the freedom to believe in that which others may find objectionable.
In its legislative pause, and away from the character constraints of a twitter debate, the government should not abandon its attentiveness to the breadth of rights at issue, but to see the many ways in which those rights can co-exist without real conflict. School boards can function, Catholic schools can religiously educate, parents can make informed decisions and students can voluntary form inclusive equality-seeking groups. That is not a world in which rights are absolute, it is a world in which rights can be mutually respected.
It has sometimes been said that constitutional law is made, not just in the courts, but also in the streets. In Alberta, this week, in a debate about rights, it appears constitutional law can also be made in tweets.