Bill 26 reflections (attempt to limit claims of compensation for sterilization).

• Author: Dickson, Gary

The 1998 spring session of the Alberta Legislative Assembly provided an unusual focus on human rights. The controversial session witnessed the first attempt by the government of Alberta to use the notwithstanding clause in the Canadian Charter of Rights and Freedoms (the Charter). That surprising move triggered a vigorous debate both in the Assembly and in the coffee shops and phone-in radio programs throughout Alberta.

By way of background, the Charter spells out a number of rights which every Canadian citizen enjoys. These include freedom of religion, freedom of expression, freedom of assembly, and the right to vote for federal and provincial representatives. The Charter imposes limits on what a government can do in terms of interfering with these individual rights. Section 33 of the Charter is often described as "the notwithstanding clause." Section 33 permits a provincial legislature to override the Charter. To do so, the Legislative Assembly must pass a law which declares that it shall operate notwithstanding any part of the Charter.

The very existence of the notwithstanding clause has been controversial. Many human rights advocates argue that it undermines the basic protection to which every citizen should be entitled. On the other hand, the politicians who originally agreed to such a provision have insisted that it would be very rarely used and that the notwithstanding clause was a necessary compromise without which the provinces would never have agreed to the Charter.

The notwithstanding clause has never been used in Alberta before this year. That is true of every other province but two. It was used once in the province of Saskatchewan when the Devine government passed a contentious labour law. It has been used a number of times in Quebec to protect language laws.

On March 10, 1998 the Minister of Justice introduced Bill 26 - the Institutional Confinement and Sexual Sterilization Compensation Act, 1998. In his brief comments, the Minister said that the bill would remove obstacles to compensation and establish compensation principles which "will assist in resolving claims in a fair and consistent manner." Minutes later as copies of the new bill were distributed to MLAs and read for the first time, the Assembly erupted. Opposition MLAs pummeled both the Premier and Justice Minister over a section of Bill 26 which triggered the notwithstanding clause in the Charter. The opposition reaction was fierce and appeared to catch the...