WAGNER: Smith right, a Bill of Rights is an instrument of freedom

With Danielle Smith’s announcement of impending amendments to the Alberta Bill of Rights, a closer look at that document’s historical impact might be helpful. Notably, in one instance, the Alberta Bill of Rights played a significant role in the expansion of parental rights and private education in the province.In 1971, Peter Lougheed’s Progressive Conservative Party defeated the Social Credit Party which had been in power continuously since 1935. The first legislative session of the new government began in the spring of 1972. Bill 1 — the very first piece of legislation — was the Alberta Bill of Rights. It was a major priority for the new premier.Of course, this Bill of Rights was simply legislation, not a constitutional document. However, in Section 2 it was given pre-eminence over most other legislation: “Every law of Alberta shall, unless it is expressly declared by an Act of the Legislature that it operates notwithstanding The Alberta Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared.”Remarkably, the notwithstanding clause in that section became the model for the notwithstanding clause in the Canadian Charter of Rights and Freedoms about ten years later.A 1978 court case over a private Christian school showed that the Bill of Rights had teeth.Until 1977 the Holdeman Mennonite Community of Linden, Alberta had sent their children to the local public school. As long as they formed a majority of the population of Linden, the public school accommodated their values and lifestyle.However, by the mid-1970s they were no longer a majority and so the school was less accommodating to them. The public school then became seen as having a bad influence on the Holdeman children, and the parents resolved to create a private school instead.That new school, the Kneehill Christian School, began operating in 1977. Despite attempts to obtain the necessary approval for a private school from the Minister of Education, such approval was not forthcoming.Instead, legal action was initiated against the school for two main reasons. First, the withdrawal of the Holdeman children from the local public school created a substantial financial hardship for that school. Secondly, most of the teachers employed by the Holdeman school were not certified.As a result, all of the parents whose children attended the Holdeman school were charged with violating the attendance provisions of the School Act. However, the Attorney General intervened and ordered a test case of only one parent, Elmer Wiebe.In court, the Holdemans argued that compelling their children to attend a public school violated their freedom of religion as guaranteed by the Alberta Bill of Rights. Their claim was that religious freedom included the freedom to educate their children in the context of their religious beliefs.On the basis of this argument, they won their case.The judge ruled as follows: “The accused in this case has committed no real crime. He has not refused to send his child to school, only to a particular school where, among other factors that are abhorrent to his religious beliefs, he says, the teachers are indoctrinated in a liberal value system unacceptable to him or his Church.”More importantly, “where it can be shown in a particular case that religious beliefs are irrefutably and irrevocably linked to education, a foundation has been laid for the application of the Alberta Bill of Rights where freedom to educate children in conformity with those beliefs is infringed upon.”As a result, it was held that the school attendance provisions of the School Act, which required attendance at a government-approved school, infringed Elmer Wiebe’s freedom of religion and were therefore “rendered inoperative.”Subsequently, the provincial government did not appeal the decision even though it was urged to do so by opposition politicians as well as by the ATA and the school trustees association. It did not want to be seen to be opposing a decision based on its own flagship Bill of Rights.Instead, the government revised private school regulations to allow a new type of private school that did not employ certified teachers or use government curriculum. Thus, the government changed its policy in order to accommodate the Holdeman school.All freedom-loving Albertans benefited from this decision because it expanded the scope of parental rights and educational choice in the province.Will the new amendments to the Bill of Rights make any difference? It’s impossible to say at this point. But we do know that in at least one past case, the Bill of Rights expanded individual freedom and reduced government control.Only the future will tell whether that was an historical anomaly or a hopeful indicator of further positive developments.

WAGNER: Smith right, a Bill of Rights is an instrument of freedom

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