March 18, 1998

Letters Editor

Nothing reveals people’s true motives like selective moral outrage.

The journalists and academics and politicians who have been castigating the Alberta government over its attempt to invoke the notwithstanding clause of the Charter of Rights have been, almost to a man and woman, very selective in their concern for fundamental rights. Those who have demanded Jon Havelock’s resignation on grounds that a Justice Minister should be a better guardian of Charter rights have been mostly silent about his other current assault on basic rights.

We refer to the "Protection Against Family Violence Act" (Bill 19), with its wholesale dismissal of due-process rights. A fundamental principle of common law for centuries, also entrenched in the rights-charters of constitutional governments, is the right of accused individuals to hear the charges against them, and be allowed to respond to same, before a judgment is made against them.

Now, that same tradition recognizes the existence of extenuating circumstances. But it insists that suspension of basic rights be allowed only in situations which [a] are highly serious and [b] cannot wait for regular court processes; i.e., that such suspension be allowed only in emergencies. Also required is that any resulting ex parte order (made without notification to the accused) be very temporary--legally binding only until the regular processes can provide the accused a hearing. Bill 19 throws all of this out the window.

To be fair, it must be noted that many individuals are not aware of this aspect of Bill 19, not having been informed by the media as they were in the case of the notwithstanding-clause legislation; and the bill itself is written in a sophistical fashion making part of the rights-violation harder to discern.

Notably, it does refer to "emergency" orders. But the words used in parliamentary bills are given special legal re-definitions which can be far different from their meanings in ordinary language. And in this case, an "emergency protection order" is simply defined as any order issued by a judge or justice of the peace--standardly in response to charges telephoned in by an accuser--who decides on the basis of such accusations to issue an order. There is no requirement whatever that a genuine emergency exist or even be alleged.

Not only does the bill grant such extraordinary powers in the first instance; though requiring that the order be promptly reviewed by a Queen’s Bench justice, it gives that judge the option of never granting the accused a hearing in court at all--during the entire year of the order’s duration or beyond that if it is renewed.

The right to sue without legislated limitations is arguably less important than the right to answer one’s accuser. And the notwithstanding clause, at least, is itself a part of the Constitution. But Bill 19’s highhanded violation of rights is in flat conflict with the Constitution and the common law.

Professor Ferrel Christensen 488-4593 David Willson, LL.B. 482-6670

10011-116th St. #501 10316-121st St.

Edmonton T5K 1V4 Edmonton T5N 1K8