Defend the rule of law or be agents in its dismantling

Log in to listen to this article

The chief justice of the Supreme Court of Canada has said that the country is facing an attack on the rule of law and judicial independence. In this, Alberta is the canary in the coal mine. 

According to the top court in the Quebec Secession Reference, our democracy “in any real sense cannot exist without the rule of law.” It “vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs” and it guarantees “one law for all.”

The rule of law requires that all government action comply with the law and the Constitution. Indeed, the powers allocated to the provinces under the Constitution are the government’s “sole claim to authority.”

In Alberta, however, the United Conservative Party (UCP) government has been attacking the rule of law for some time. 

Last fall, the UCP pre-emptively invoked the notwithstanding clause for the first time in Alberta’s history, while also removing all access to justice for thousands of striking teachers by passing Bill 2. Days later, the government invoked the notwithstanding clause three more times for legislation aimed at trans kids and requiring girls to prove they were born female to play school sports. Then, certain books were banned by an order-in-council, while Bill 25 was passed to prohibit the display of cultural and pride flags in schools. Bill 28 required public libraries to gatekeep certain books.

Meanwhile, the UCP amended the Citizen Initiative Act three times to enable a separatist referendum petition (Bills 54, 14, and 23) while ignoring the outcry from First Nations.

At the end of last year, an Alberta court considered a secessionist referendum proposal enabled by Bill 54 in a case referred by the chief electoral officer under the Citizen Initiative Act. Perhaps seeing the writing on the wall, the government tabled legislation (Bill 14) on December 4, 2025, attempting to end the case.

But on December 5, 2025, Justice Feasby rendered a 66-page decision, declaring that the separatist proposal contravened the Constitution. The decision’s epilogue called out the Alberta government for trying to “silence” the court: 

“Changing legislation to circumvent a valid legal process commenced by the independent officer of the Legislative Assembly responsible for administering democratic processes is the antithesis of the stable, predictable, and ordered society that the rule of law contemplates, and democracy demands,” Justice Feasby wrote.

Judicial independence key to protecting rule of law

The day after the Feasby decision, Premier Danielle Smith attacked the courts on her radio show.

“The will of Albertans is not expressed by a single judge,” she said.

“Democracy is when individuals who have to face the electorate make decisions.” 

Defending Bill 14, the premier went further in the legislature a couple of days later.

“We don’t want to see a gatekeeper in the court,” she said. 

“We are the elected representatives. We make the decisions. … We do not have court supremacy; it’s parliamentary supremacy.”

This is incorrect. Canada has had constitutional supremacy since 1982, underpinned by the rule of law and protected by an independent judiciary well before then. 

The following month, Alberta’s chief justices issued an unprecedented statement defending the rule of law: 

“Each day in Alberta’s courthouses, judges apply the law—to protect individual rights, decide disputes fairly and hold parties, including governments, accountable,” they wrote. 

“The rule of law means no one is above the law, everyone is treated equally before the law, and power is not used arbitrarily.”

Lawyers needed

The reality is that no attack on the rule of law can happen without lawyers to implement it. 

Enter the UCP’s Regulated Professions Neutrality Act. Bill 13, under the guise of protecting free speech, gives carte blanche to lawyers to publicly undermine the legal profession or call for illegal secession, so long as this “expressive conduct” is outside their “practice” of law.  

This same freedom of expression was denied to Indigenous lawyers forced to take an oath of allegiance to the King. It is being denied in libraries and schools. And it was denied to 50,000 teachers when their lawful strike was ended. 

In other words, there is no “one law for all.” Neutrality is a myth. 

Worse, Bill 13 was a continuation of the failed attack on the profession’s mandatory course on Indigenous Peoples and Canada’s colonial history. Known as “The Path,” the course implemented a Call to Action of the Truth and Reconciliation Commission. The legislation prohibited professional regulators from requiring “cultural competency, unconscious bias, or diversity, equity and inclusion training.”

Quietly, last month, the Law Society of Alberta duly implemented Bill 13, disregarding this Call to Action, removing The Path, and erasing this history from our professional education. 

Indigenous People on the front line

All Albertans are starting to learn a reality long known to Indigenous Peoples. That, without willing lawyers and independent courts to uphold it, the law protects the powerful.  

On May 13, Smith’s government lost another separatist case against First Nations. Alberta had a duty to consult before setting a binding separatist process in motion. After the loss, Smith vowed to appeal, claimed the decision was “anti-democratic” and purported to open the door to amend section 35 of the Constitution Act, 1982. 

The Blackfoot Confederacy, one of the winners in that case, issued a warning to their people about public safety following racist backlash to their victory. The premier did not condemn this backlash. If anything, she fed it. 

In contrast, when the grand chief of Treaty 8 suggested that First Nations may have to resort to civil disobedience, Smith swiftly threatened to bring charges under the Critical Infrastructure Defence Act. That law was originally aimed at Indigenous land defenders and was hardly used against non-Indigenous blockaders at Coutts. In fact, Smith famously tried to interfere in relation to the very same charges she is threatening against First Nations leaders, to allegedly have them dropped against one of the only individuals charged under this act.

“The attack on those rights, and now everyone’s rights, continues on the ground. First Nation people know this story all too well. We have lived it for generations. We are done pretending this is normal,” Chief Sheldon Sunshine of Sturgeon Lake Cree Nation said in an address in late May.

“…This is about whether governments will respect the agreements they made with our Nations. This is about whether the Crown will act like a treaty partner or continue to act like our rights are disposable.”

Lawyers must defend treaties and the rule of law

Treaties require the maintenance of a stable, ordered, democratic society, governed by the rule of law with access to independent courts, often the only place First Nations can go to vindicate their rights. 

Attacks on the rule of law undermine treaties. They’re also difficult without willing participants in the legal profession. As Timothy Snyder noted in On Tyranny: “It is hard to subvert a rule-of-law state without lawyers.”

“Professional ethics must guide us precisely when we are told that the situation is exceptional,” he said. 

“Then there is no such thing as ‘just following orders.’”

Bill 13 was our first test as a profession. As lawyers, we failed. Going forward, our profession has a choice to defend the rule of law or be agents in its dismantling.