3Life on the Back Bench (2005–2006)

First Caucus Meeting

First impressions, as they say, tend to be lasting. This was certainly the case for me when I arrived in Edmonton on December 15 to attend my first caucus meeting following the November 22 election. Two days earlier I had been sworn in as the new MLA for Foothills-Rocky View and the 738th member of the Legislative Assembly of Alberta. Now I was making my first visit to Government House. Constructed in 1912 for the Crown’s representative in Alberta, the Lieutenant Governor, it is an imperial, three-storey, sandstone mansion built in the Edwardian Tudor revival style. Perched high on the north bank of the North Saskatchewan River in its own private park, it is an imposing building with an imposing view—literally fit for a King. I was duly humbled to be walking through its ornate front doors to my first caucus meeting. Little did I know what was waiting for me.

The first caucus after the election should have been an occasion for celebration. Ralph Klein had just led the PC Party to its fourth consecutive majority government. But the week before, the Supreme Court had released its decision in the Liberal government’s Same-Sex Marriage Reference,¹ affirming Parliament’s authority and jurisdiction to redefine marriage to include consenting same-sex partners. For Klein and our caucus, this posed a problem.

The Klein government had struggled with the sexual orientation and same-sex marriage issues for over a decade. They had refused requests to add sexual orientation as a prohibited discrimination to the Alberta Human Rights Act. Then, in the 1998 Vriend case,² the Supreme Court ruled that Alberta’s decision NOT to include sexual orientation violated the equality rights section of the Charter of Rights. The judges conveniently overlooked the fact that attempts to add sexual orientation to the Charter had been rejected by those who wrote the Charter in 1981–82. But rather than striking down the entire Act as unconstitutional, the judges “read in”—that is, added—sexual orientation to the Alberta Human Rights Act. This provoked considerable criticism in Alberta. Klein also voiced his unhappiness with the decision, but he declined calls both from caucus and conservative Albertans (including me) to invoke the section 33 notwithstanding power. Instead, he promised to put “legislative fences” around institutions like marriage³ and also never bothered to formally amend the Alberta Human Rights Act to include sexual orientation.

Two years later, in response to the Supreme Court’s ruling in M. v. H.,⁴ the Klein government enacted Bill 202, the Marriage Amendment Act. The Act expanded the common law marriage obligations (or “civil unions”) to cohabitating same-sex couples (thus complying with M. v. H.), but also amended the provincial Marriage Act to apply only to the consenting union of a man and a woman. To prevent any Charter challenges to this defence of traditional marriage, Alberta added the section 33 “notwithstanding clause.”

Retroactively, section 33 allows governments to reinstate a law that a court has struck down, when the government thinks the court’s ruling is based on a misinterpretation of the Charter or deems the policy consequences of the ruling contrary to the public interest. Prospectively, as in this case, a government can use section 33 to shield new legislation from a future Charter challenge. Just as the Charter creates a judicial check on bad legislation, section 33 places a political check on judicial mistakes. It is a classic—and uniquely Canadian—example of constitutional “checks and balances.” In both cases, the immunity from judicial review conferred by invoking the notwithstanding power is valid for only five years. At the end of five years, the government must choose between allowing it to expire or to renewing it for another five-year period.⁵ Neither courts nor legislatures have the final word.

Fast-forward to December 2004. This five-year time limit was scheduled to expire in only three months, in March 2005. Klein and his justice minister, Ron Stevens, knew that the media would be waiting for them: What is Alberta going to do now? Will you renew the notwithstanding clause for another five years? Stevens had deflected this question a few days earlier with the comment, “It’s now time to meet as a caucus and determine our next course of action.”

Caucus opened with a few polite formalities: a congratulations to the premier for leading us to a fourth consecutive majority government; a welcome to all the newly elected MLAs (of which I was one). The agenda then quickly turned to how we might respond to the Supreme Court’s ruling. Minister Stevens began by reading from a policy memo prepared by his justice department lawyers.

I couldn’t believe what I was hearing. I knew this file inside out. I had been writing about it for over a decade, and I knew we had more options than what we were being told. I raised my hand to speak and was quickly recognized. I rose, but instead of a restrained, calm deliberative exposition of alternative choices, the first words that came out of my mouth were that the options the minister had given us were “three different ways to surrender.” All hell broke loose. Only later did I learn that backbenchers were supposed to be deferential and polite to ministers, and that newbies (like me) were supposed to keep their mouths shut for at least the first few months.

The caucus meeting quickly descended into organized chaos. There were heated comments from all sides. For the first time, I observed a regional pattern that was to repeat itself many times. Most Edmonton-area MLAs cautioned passive acceptance of whatever the federal government chose to do. Most rural MLAs argued for renewing the Marriage Amendment Act and its notwithstanding clause. Calgary MLAs were evenly divided. But there was a clear bottom-line majority: that we should do everything we could legally do to defend the traditional definition of marriage.

Caucus ended. Buoyed by these results, I was happily descending the winding staircase until I was suddenly confronted by a media mob waiting for me in the ornate foyer of Government House. They knew what I had said and written on this issue before. Now they pressed me for answers on what I thought the government should do.

With lights flashing and cameras rolling, I tried to repeat what I had said in caucus.

That these various judicial decisions were wrongly decided; sexual orientation was purposively not included in the list of section 15 grounds of prohibited discrimination.

That constitutional supremacy does not mean judicial supremacy: judges are not infallible, and that’s why we have the section 33 notwithstanding clause.

That while the definition of marriage clearly falls under federal jurisdiction, the solemnization of marriage just as clearly is a provincial power.

That since the federal government had not yet made a decision, and two out of three Albertans were opposed to redefining marriage to include homosexual couples, the Alberta government was legally and morally justified in re-enacting the Marriage Amendment Act and renewing the notwithstanding clause for another five years.

In retrospect, I can say definitively that this is NOT how a new MLA makes a favourable first impression with the powers that be in cabinet and in the premier’s office.

Premier Klein subsequently had to answer the same kinds of questions. To his credit, his answers reflected that he had heard from caucus.

I’m willing to abide by the resolution of our caucus to use all political and legal means available to us to fight this. We’ll do everything we can politically. We will use every legal mechanism, absolutely.⁶

When asked if his government would “cave in” if the Liberal government in Ottawa approved same-sex marriage, Klein responded: “What do you mean, cave? You can’t cave on this.”

This is how my first week in Edmonton began. In many respects, it didn’t stop for the next eighteen months. Much of my time up to the 2006 leadership race was consumed by addressing the potential negative consequences of the federal Liberal government’s subsequent decision to extend the status of marriage to same-sex couples—specifically, how to protect the freedoms of speech, press, and religion of those who, like me, thought that same-sex marriage was a dangerous new social experiment. Much of my time but not all.

First Day in the Legislature

After the pre-Christmas caucus meeting, we did not return to Edmonton until March 1, 2005, for the opening of the Legislative Assembly. Like my first caucus meeting, my first day in the assembly also left a lasting impression. The first order of business was the election of a new speaker and new deputy speaker. It was a foregone conclusion that Ken Kowalski would be re-elected speaker of the house. He had served as speaker in the prior two sessions. There being no other nominations, he was acclaimed.

On to the election of a deputy speaker. There were two nominations—Richard Marz, a rural MLA from Olds-Didsbury-Three Hills; and Shiraz Shariff, MLA from Calgary-McCall. Richard had contacted me shortly after the November elections asking for my support. While I hardly knew Richard, I told him I would support him. His district was adjacent to mine, and it included several smaller towns where we knew I had strong supporters for the future leadership election. I hoped that by supporting Richard now, I would be able to get his support later. Shiraz also phoned me, but several weeks later. I explained to him that because I had already pledged my support to Richard, I could not support him, but wished him well.

Onto March 1st and the election. Votes were cast. Votes were counted. And the clerk announced that Richard had won. Shiraz was seated in the row of seats directly below me. I could see the tears begin to roll down his cheek, and then he began to sob. We recessed shortly thereafter, and I approached Shiraz in the government lobby. Putting my arm on his shoulder, I tried to console him, urging him not to take it personally. His response was brief and to the point: “Ted, I spoke to every member of caucus, and you were the only one who told me that he would not support me.” Lesson learned, not to be forgotten. For the next eight years, I never took private offers of support from any of my fellow PC MLAs as something I could rely on.

Foothills-Rocky View Constituency

As a new MLA, I was also busy getting to know the communities I now represented in Foothills-Rocky View. Both the towns and municipal districts were experiencing the same mega-growth as Calgary, and the accompanying problems of housing, traffic, schools, water, and sewer—all of which required assistance, funding, or both from the provincial government. And they all looked to their new MLA to help them get it.

When the legislature was in session, I would be in Edmonton Monday through Thursday; meet with constituents Friday in my new constituency office at the Springbank Airport; and often spent Saturdays visiting constituents to see first-hand what their issues looked like. I was especially busy in the spring of 2005, when flooding on the Elbow, Highwood, and Fish Creek rivers damaged many homes and communities. I was learning first-hand how much more work and time is required of rural MLAs compared to those from the larger cities. I’m not sure how I would have handled all of this without the organizational genius and calm demeanour of my constituency office manager, Margaret Lepp.

De-Klein: Overspending

When it came to government spending and budgets, I was of two minds. On the one hand, I respected the vision and commitment that had allowed Klein and his ministers to slay Alberta’s deficit dragon and then (by 2005) retire the $22 billion of net debt inherited from the preceding PC government of Don Getty. Yes, the return of higher energy revenues helped, but it took some heavy lifting—and very thick political skin—to even be in position to benefit from the energy price rebound of the early 2000s.

On the other hand, I became increasingly concerned about how much we were spending. The more revenue we took in, the more we spent. The senior MLAs and ministers seemed to think that after years of restraint and sacrifice, now they were entitled to spend a little. The problem was, we were spending a lot more than a little.

By 2005 and 2006, the prices of both natural gas and oil were hitting historic highs, and so were the Government of Alberta’s non-renewable resource revenues (NRRR). The government’s NRRR jumped from the $7 billion/year range to $14.3 billion in 2005 and $12.3 billion in 2006. For Budgets 2005, 2006, and 2007, government spending was increasing faster than Alberta’s GDP growth, something that clearly was not sustainable. The Fraser Institute described it as the “Beginning of the end of the Alberta Advantage.”⁷ Shirley McClellan was treasurer and deputy premier, and she kept warning caucus that we could not continue at his rate. But continue we did.

The most blatant example of our overspending was the famous prosperity bonus cheques announced in September 2005. Rising NRRR pushed our projected budget surplus for 2005–6 from $2.8 billion to $6.8 billion. Premier Klein announced that 20 percent of this increase—$1.4 billion—would be doled out in $400, one-time cheques to each and every Albertan. While these “Ralph Bucks” were popular at the time, in retrospect they were a huge mistake. They were also another symptom of the PC Party’s loss of focus and Klein’s own shrinking, short-term horizons.

What the public did not know was how this decision was made. Earlier that month we had a caucus retreat at Cold Lake / Bonnyville. At the top of the agenda was what to do with the anticipated budget surplus. At the outset, the premier told us that this was “one of the most important caucus decisions we’ve ever made.” For the rest of the morning, we had a vigorous discussion of our options. First and foremost, and my favourite, was to save it in the Heritage Fund. But there were others: reduction of personal income tax rates; elimination of health care premiums; new infrastructure investment; upgrading Kananaskis and other provincial parks; a “windfall tax rebate” to Albertans. Klein indicated that he liked this last option but did not push it. The scheduled lunch break arrived, and we were told we would finish this discussion when we returned. MLAs quickly were off to the dining area, but I lagged behind as I was still finishing my notes. Then, as I passed through the central foyer on my way to the dining hall, I saw that the premier was holding a press conference. I stopped to listen. I could not believe what I was hearing. With great enthusiasm, Premier Klein was announcing the prosperity bonus cheques! The press releases had already been printed.

When I got to lunch, I told whoever was at the table what I had just heard. There were raised eyebrows and shaking of heads in disbelief. But when the caucus meeting resumed, there was no outcry of protest. I was in disbelief. I didn’t say anything then, but later that week I criticized the “Ralph Bucks” plan in an interview with one of my local weekly newspapers. A week later I was summoned to the premier’s office, and his chief of staff gave me a stern lecture about “teamwork” and “loyalty.” Outwardly, I acquiesced. But my inner voice was saying: The real problem is in this office.

While my concerns about growing dysfunction in the Klein inner circle were justified, from another perspective, this was just an example of what Canadians political scientists were already describing as “policy-making by announcement.”⁸ It reflects the growing concentration of power in the offices of prime ministers and premiers, both Liberal and Conservative. “The reality of Cabinet government is that the truly crucial decisions are made by a small handful of ministers, advised by an equally small handful of senior public servants.”⁹ This was my first unpleasant encounter with this reality but not my last.

Other than my public criticism of “Ralph Bucks,” I more or less went along with this spending spree. As a new backbench MLA, there was nothing I could do to stop it. Plus, I was trying to make some friends—and future allies—in caucus for the anticipated leadership race that would occur when Klein retired. I enjoyed a few small victories. In the caucus debates over Budget 2006, I teamed up with Minister of Finance Greg Melchin to persuade caucus to lower the corporate tax rate from 11.5 percent to 10 percent in exchange for not opposing the finance minister’s proposal to raise the cap on energy revenues that could be diverted to general revenue spending.

In terms of Alberta’s larger macro-economic health, our continued overspending was putting us at risk. As long as oil and gas prices kept rising, we could get away with it. But I knew this could not last. It never does. In my subsequent 2006 leadership campaign, I promised to cap the growth of public spending at less than private sector growth and to direct 30 percent of our energy revenues to the Heritage Savings Fund. But I did not win, and that did not happen. Two years later, the inevitable did happen.

The US housing mortgage bubble burst, sending energy prices into the tank. In 2008–9, the Alberta government recorded its first deficit budget since 1994. This was followed by thirteen more deficit budgets, as Alberta went from debt free to $100 billion of debt. This is the subject of chapters 6, 7, and 8.

Maiden Speech and the Leadership Race

At the outset of the 2004 election, Klein announced that this would be the last time he would lead the PC Party into an election. But he did not specify whether he would stay for four more years, or only one or two. Whatever Klein might have intended, this ambiguity meant that the “unofficial” leadership race began the day after the votes were counted. Klein’s former minister of finance, Jim Dinning, had been organizing support for his leadership bid since at least 2002. Mark Norris, an Edmonton PC MLA, was also raising money and even running newspaper ads. And, as noted earlier, my ambitions were no longer secret after August 2004, when the Western Standard published their cover story about me as the “Premier-in-Waiting.”

The public visibility of the leadership issue notched up again on March 9, 2005, the day I gave my “maiden speech” in the Legislative Assembly. Every newly elected MLA is offered the opportunity in his or her first term to make such a speech. The newly elected legislature had convened on March 1, and my opportunity came only four days later.

Most maiden speeches are filled with platitudes about the members’ appreciation of those who helped them get elected and flowery statements about the towns and communities that they represent. Mine certainly began that way. But I quickly segued into a review of Alberta leaders and premiers who from our very beginning had fought to protect Alberta from predatory and harmful policies of the federal government: Haultain, Brownlee, Aberhart, Manning, Lougheed, and now Klein. My conclusion:

“Our Alberta strong and free did not happen by accident; it happened on purpose. It happened because of the wise and deliberate choices made by the statesmen who have served as premier of this province.”

No one in the building could miss the implicit connection between the Alberta Agenda and my praise of these past Alberta premiers. Certainly not the thirty or so guests sitting in the members’ gallery. Inviting guests for a member’s maiden speech is normal. What was not normal was the reception at the Mayfair Golf and Country Club immediately following. The Mayfair is the oldest and most prestigious club in Edmonton. Our reception there had been arranged by Keith Alexander, a former MLA and one of my earliest and strongest supporters. Prior to delivery, we had also leaked copies of my speech to several Alberta journalists we knew to be sympathetic to my leadership plans. Some even attended the reception.

The speech received favourable coverage across the province. Paul Stanway previewed it before I had even delivered it: “The undeclared race to succeed Ralph Klein is about to get a little more crowded today,” he wrote in that morning’s Edmonton Sun. Morton’s message: “Everything we have in Alberta right now, all the prosperity and wealth we enjoy, is the result of some very hard-fought battles.” And the reception? “You can consider this his coming out party.”¹⁰

Nigel Hannaford was equally blunt: “Morton sets out his leadership case,” read the headline in his column in the Calgary Herald. “What Morton did was talk of famous Albertans. The message: These guys had the right idea. If you want more of the same, I’m your guy.”¹¹ This was echoed a week later by Calgary Sun columnist Paul Stanway. Morton, he wrote, is “the best intellect in PC caucus … a force for change… [who] leads the fight for democratic renewal.”¹²

Less than a month later, Klein removed the ambiguity around when he intended to step aside. In April, at the annual PC Convention, Klein casually announced, “If I’m alive, I’ll be around for another three and a half years.” We were surprised, but happy. As Ted Byfield correctly pointed out in his weekly Calgary Sun column, for Morton to win, he needs time. Klein’s announcement was “appalling news for both Dinning and Norris. … That’s because the man whom both of them fear could be 10 times more dangerous to them in three years than he is now. That man is Ted Morton.” Byfield had read my maiden speech and liked it. This was hardly a surprise. Much of my understanding of Alberta’s history and relationship with Ottawa had been shaped by reading Byfield’s Alberta Report magazine and his eleven-volume history of Alberta. Morton, he wrote, is “a man with a message and a program for Alberta … More Alberta, Less Ottawa.”¹³

Klein’s decision to stay was good news for me. But it meant that in addition to my new responsibilities as the MLA for Foothills-Rocky View, I was now going to be campaigning full time for the next year and a half. And so we did.

Under the banner “Friends of Ted Morton,” we opened a small campaign headquarters next to the Safeway in Bowness. We quietly raised money. We developed a TedMorton.ca website, with copies of my articles, speeches, and favourable newspaper columns (those referenced above). The same materials were collected in a ten-page brochure under the heading “Our Future. Our Choices.” Both had contact information along with requests for donations. And I travelled the province almost non-stop after the spring session of the legislature ended in May 2005.

Bill 208: Protecting Freedom of Speech and Religion

I was heavily involved in the same-sex marriage issue during my first two years in Edmonton. As noted above, it started at my first caucus meeting in December 2004. When we returned to Edmonton in March for the opening of the legislature, the same-sex marriage issue was still front and centre. In February, the federal Liberal government had introduced Bill C-38, legislation to redefine marriage to include same-sex couples. At our March 17 caucus meeting, Minister Ron Stevens again presented the justice department’s legal advice that re-enacting the Marriage Amendment Act—even with a renewal of the notwithstanding clause—could not and would not win if challenged in court. The Supreme Court had stated correctly that the definition of marriage falls under federal jurisdiction. If there were a conflict between the province’s definition of marriage and federal definition of marriage, the latter would prevail in a court of law. And the notwithstanding power would be of no use, as it applies only to Charter of Rights issues, not to issues of federal-provincial jurisdiction.

Legally speaking, this was all correct. But my point, which I argued again, was that this was much more than a legal issue. The Supreme Court had ruled that Ottawa could redefine marriage, but not that it was legally compelled to. The court had also confirmed that the “solemnization of marriage”—the issuing of marriage licences—is an exclusive provincial jurisdiction. We could still use the notwithstanding clause to defend the latter, even if Ottawa chose to legislate same-sex marriage. The Liberals had introduced Bill C-38 a month earlier, but it was not yet enacted. Until it was, the centuries-old common law definition of marriage continued to be the law of the land. I argued that this was not only Alberta’s opportunity to defend it, but also our duty, as recent polls indicated two-thirds of Albertans still opposed same-sex marriage. There was vigorous argument, pro and con, but again my arguments carried the day in caucus. And as he had before, even the premier grudgingly went along.

My opponents in caucus immediately leaked the outcome of this meeting to the press. And their friends—my critics—in the local media seized upon the story to criticize the premier for lack of political will and to tarnish me and my supporters as religious fundamentalists pursuing a fight the province could not win.

I contacted the Edmonton Journal to tell them that their “columnists have done a disservice to your readers through inaccurate and misleading reporting” and requested an opportunity to respond. They printed my response in their April 4 edition. I repeated the arguments that I’d made in caucus, but I specifically challenged their claim that renewing the notwithstanding clause was a “mean, empty gesture.” To the contrary, I argued:

It is a bold, positive affirmation of Canada’s federal democracy. The notwithstanding clause exists because of former Alberta Premier Peter Lougheed. In 1981 Lougheed had the foresight to insist on the notwithstanding clause as a democratic check on potential judicial misinterpretations of the Charter of Rights. It is precisely such judicial misinterpretations of the Charter that have driven the homosexual marriage issue. Sexual orientation, much less a right for homosexuals to marry, cannot be found in the text of the Charter. Both are judge-made law—precisely what the notwithstanding clause protects us against.¹⁴

After reading this over my morning coffee, I happily went off to our morning caucus meeting, even expecting some high-fives from some of my fellow MLAs. That changed quickly. Caucus began with a clear message that we would not be renewing the notwithstanding clause. This time the message was delivered by Government Services Minister Ty Lund, and it clearly had the backing of the premier. The “don’t fight a losing battle” message from ministers like Stevens and Hancock had now carried the day. The return of Rod Love, Klein’s chief of staff, who had missed the March caucus meeting, was also a factor. Rod was famous for running a tight ship and was not a fan of bottom-up caucus policy making. And not surprisingly, he was no fan of mine. After caucus, the media were given the same blunt message. “I had to put my foot down today,” Klein told reporters. “You cannot incorporate into a law something that is unlawful, something that simply cannot be enforced. … As far as I’m concerned, it’s dead.”¹⁵ Liberal political columnist Graham Thomson celebrated Klein’s reversal as a political loss for me.

Klein was forced to flip-flop. Consequently, he looked like he was losing control of caucus to the more right-wing elements who were emerging as the voice of Alberta conservatism—MLA Ted Morton inside government and Alberta Alliance MLA Paul Hinman outside. … The tail seemed to be wagging the dog. On Monday, Klein brought the dog to heel. The Morton-led flip-flop has flopped. … If Morton thought he was leading the charge on this issue he’ll have to take shorter steps. Klein just cut him off at the knees.¹⁶

It was true. I’d certainly lost the battle. But not necessarily the war. I knew that a majority of caucus still agreed with me that judicially imposed same-sex marriage was both bad law and bad policy. Was there an alternative path forward that would allow Alberta to comply with the Liberals’ Bill C-38 but still protect those of us who disagreed with the new policy it had created?

***

It turned out that there was. The rules of the Alberta Legislative Assembly allow for what are called private member’s bills. In parliamentary democracies such as Canada, all bills are normally introduced by government ministers. This is the privilege given to the party that “forms government” with a majority of the members of the legislature. To offset this “monopoly” of the legislative agenda, Alberta allows twenty private member’s bills each session for those MLAs who are not in cabinet or who are in opposition parties. Private member’s bills also affirm the principle that the function of an elected member of a legislature is to represent constituency interests, not just follow party discipline.

Eric Taylor and David Williams—two young staffers assigned to support backbench MLAs—first brought this option to my attention and then helped me to develop what eventually became Bill 208. First, I had to apply for the private member’s bill draw held in July 2005. This is a random draw, so I was lucky to even be drawn. I then had to navigate my proposal through two separate approval streams. One—through Parliamentary Council and the speaker’s office—was basically procedural: ensuring that the right forms were completed and filed by the right dates. The second was internal to caucus: Agenda and Priorities Committee in the fall; Standing Policy Committee in fall/winter; Private Members’ House Strategy Committee in the winter; and finally, caucus approval. Suffice it to say that if it had been a priority in the premier’s office to stop Bill 208, there were numerous opportunities to do so. Tellingly, that never happened.

There had been important political and policy changes since the demise of the Marriage Amendment Act. The Liberals had enacted Bill C-38, and same-sex marriage was now the law of the land. The Stephen Harper–led Conservatives had defeated the Liberals in January 2006, but with only enough seats to form a minority government. Harper had decided that any attempt to revise Bill C-38 would only be done by a free vote, which meant that it would fail. This meant that same-sex marriage was now a done deal, and that there was no going back.

But as I had warned a year earlier, achieving same-sex marriage was not the endgame for its proponents. Instead, it became a launching pad for a new round of attacks on those who still disagreed with the new law and were not afraid to say so publicly. In British Columbia a teacher, Dr. Chris Kempling, had been suspended without pay because he publicly disagreed with the Liberal government’s same-sex marriage law. Also in British Columbia, the Knights of Columbus had been sued and fined because they refused to rent their hall to a same-sex wedding party. In Ontario a leading gay rights activist had called on the government to cut off funding to the Catholic separate schools and all other private schools that did not include same-sex marriage in their curriculum. Even in Alberta, the respected Bishop Fred Henry of Calgary had been charged not once but twice with so-called hate speech crimes for publicly advocating the defeat of the federal Liberals’ same-sex marriage bill.

It was clear that the new “progressive” definition of diversity demanded not silence but public affirmation—government enforced if necessary. The traditional liberal definition of toleration—agreeing to disagree and leaving each other alone—was no longer sufficient. It was these kinds of threats to core liberal democratic freedoms that my private member’s bill, Bill 208, was designed to thwart.

***

Bill 208 consisted of a preamble and amendments to three different Alberta statutes: the Alberta Human Rights Act, the Marriage Act, and the School Act. The preamble to Bill 208 affirmed the fundamental rights of freedom of conscience and religion. It declared that these freedoms protect any church official from being forced to perform a same-sex marriage contrary to his or her religious beliefs or conscience. It also declared in straightforward, clear language that “it is not against the public interest to hold and publicly express diverse views on marriage.” The wording of this preamble was virtually identical to the preamble of federal Bill C-38.

The first section of Bill 208 amended the Alberta Human Rights Act. It stated that no person or organization shall be deprived of any benefit or be subject to any other obligation or sanction under this or any other law of Alberta solely because of their publicly stated views on same-sex marriage, whether they oppose or support same-sex marriage. It protected both sides of this debate. This protection would be added to section 11 of the existing Alberta Human Rights Act, which is the section that provides a number of legal defences against complaints of discrimination. In layman’s terms this meant, at least in Alberta, that there would be no more hate speech prosecutions like the Bishop Fred Henry case; no Knights of Columbus or Chris Kempling job loss incidents such as had occurred in British Columbia; and no cutting off funding to separate or private schools that exclude same-sex marriage from their curriculum.

The second section of Bill 208 proposed an amendment to Alberta’s Marriage Act. Again, it had the same intent as the corresponding federal provision in Bill C-38. It protected church officials from being forced to perform same-sex marriage against their religious conscience. It also protected marriage commissioners from losing their jobs for refusing to perform same-sex marriages. The Supreme Court had clearly stated that since solemnization of marriage is an exclusive provincial power, only provinces can protect this right. Bill 208 provided such protection.

The third and final section of Bill 208 proposed an amendment to Alberta’s School Act. As education is an exclusive provincial jurisdiction, there was no parallel provision in C-38. While the amendments to the Alberta Human Rights Act also extended to the School Act, for further clarity this amendment ensured that the freedoms of conscience, expression, and religion were explicitly protected in the context of Alberta’s public, separate, and private education.

***

On April 6, 2006, I introduced Bill 208, “Protection of Fundamental Freedoms (Marriage) Statutes Amendment Act, 2006.” This was exactly one year after my loss in caucus in April 2005. Just a week earlier, Premier Klein had received only 55 percent support at our PC annual general meeting. He subsequently announced that he would step aside after what would now be a fall leadership contest. I had voted for him to stay on. But his announced departure was not bad news for me. As a lame-duck premier, Klein no longer had either the influence or the incentive to dictate the fate of Bill 208. It would not be a repeat of May 2005.

First reading is simply a procedure to introduce a bill, with no debate. The action starts with second reading, which for Bill 208 was—how appropriate—May 1. I began by repeating what I had said three weeks earlier:

Thank you, Mr. Speaker. I’m honoured to open debate today on Bill 208. … The most important right in a free society is the right to disagree and criticize govern policy. For this reason it has been protected in every major rights document in Canada’s illustrious political lineage: the Magna Carta, the English Bill of Rights, the American Bill of Rights, the preamble to the British North America Act, the Diefenbaker Bill of Rights, and most recently the Canadian Charter of Rights and Freedoms.¹⁷

I continued:

Despite this noble pedigree of freedom, this most fundamental right, the right to disagree with and criticize government policy, is under attack across our country. … These incidents are all clear violations of Canadians’ rights of freedom of speech, press, religion, and conscience.

Mr. Speaker, Bill 208 would prevent these types of rights abuses. Bill 208 would ensure that when it comes to public discussion of the same-sex marriage issue, no individual will be punished, no community group will be sued, no school will lose their funding, and no student or teacher will be coerced or punished for publicly disagreeing with same-sex marriage. What Bill 208 does not do is interfere with the legal right of gay people to get married. This is the law of Canada, a federal law, and there is little that this Assembly can do about it.

There is something that we can do about the use or, rather, the abuse of courts and human rights commissions to silence and punish public disagreement with same-sex marriage as a matter of public policy. This is precisely what Bill 208 does. … In the drafting of Bill 208 I followed as closely as possible the wording of similar rights protection provisions in federal legislation as evidenced by the documents that I tabled earlier this afternoon.

When the Liberal government of the day embarked upon the mission to redefine marriage, they were warned that there was a risk that the new same-sex marriage law could come into conflict with the traditional rights of freedom of speech, religion, and conscience. To remedy this, the Liberals initially sought to add specific protections in their own bill to address this conflict. However, in 2004 the Supreme Court of Canada ruled that protecting these rights against provincial infringement could only be done through provincial legislation. If you imagine the protection of fundamental freedoms in this context as a circle, what the Supreme Court did was draw a line through the middle of the circle and say that half is federal and half is provincial. The feds have filled in their half. Bill 208 would fill in Alberta’s half, using the identical wording to the extent possible. Mr. Speaker, Bill 208 merely completes what Parliament wanted to do but was prevented from doing by its jurisdictional limitations. It ensures that extending the rights to one group does not restrict the rights of other groups. …

Mr. Speaker, good public policy is often a question of striking the right balance between competing claims and interests. Bill 208 strikes such a balance. It would ensure that creating the new right to same-sex marriage does not lead to restrictions on the rights and freedoms of those who disagree with same-sex marriage. …

Mr. Speaker, if this Assembly fails to enact Bill 208, we will have provided less protection for the fundamental freedoms of Albertans than the Liberal government of Paul Martin provided for the rights of Canadians. Surely Albertans expect and deserve better than this. Accordingly, I would ask all members of this Assembly to support Bill 208.

Thank you, Mr. Speaker.¹⁸

Debate ensued for the next hour and a half. Five speakers from the Liberal and NDP parties spoke against the bill. Five Conservative members—Tony Abbott, Dave Rodney, Ray Prins, George Groeneveld, Len Mitzel, plus Paul Hinman, the lone Alberta Alliance MLA—spoke in support of Bill 208. The opponents were clearly willing to accept new restrictions on our fundamental freedoms of speech, association, and religion to promote the progressives’ new “social justice” agenda. The supporters were not. Supporters did suggest that Bill 208 might be too broad, and suggested possible amendments that would limit Bill 208 to simply the Alberta Human Rights Act, since this would still extend the protection to both the School and Marriage Acts. In closing I indicated that I was open to accepting such amendments when we next met in Committee of the Whole.

I was pleased with the support Bill 208 was getting both in caucus and now in second reading. But I was concerned that with the PC leadership now scheduled for the fall months, there would be no normal fall session of the legislature, and thus not enough time to get Bill 208 through to third and final reading and a vote.

On May 3, only two days after second reading, I sent a letter to the speaker requesting “early consideration” of Bill 208 in Committee of the Whole, which was scheduled for May 8. The following day this request was discussed in caucus. It carried, but not without vigorous opposition from the usual suspects—including several cabinet ministers. At one point, Premier Klein intervened in favour of my request, and I thought that this helped me win. He normally did not intervene in caucus debates, so afterward I sent him a note thanking him and stating: “I think that Bill 208 as amended establishes the principle that Albertans cannot be punished or harassed.”

Later that day I received an envelope from the premier’s office. When I opened it, it was my earlier note, with a comment from Ralph scribbled across the top: “I agree. Advise Ted.” I smiled. From the start, I knew he agreed with me on the broader policy issues, but that he was reluctant to ignore the legal advice he was getting from Justice. Now that he knew he would be leaving Edmonton before the end of the year, I think he decided to go with his heart rather than his head. Actually, this wasn’t the first time. It was part of Ralph’s character that had made him such a popular premier.

My request that Bill 208 be given “early consideration” still had to be accepted by the Legislative Assembly. Predictably, both the Liberals and the NDP opposed it. Neither wanted to see Bill 208 come to a vote, because they knew it would pass, even with ten or so PC members voting against it. So when May 8 arrived, they began what in effect became a filibuster to prevent it from ever coming to a vote. Citing precedents from Alberta Hansards, they argued that my request for “early consideration” was inconsistent with past precedents and should be rejected.¹⁹

The speaker was not persuaded and ruled that it was time to proceed to Committee of the Whole and Bill 208. But before he could even sit down, NDP MLA Ray Martin rose to request an emergency debate on adequate funding for long-term care. An important issue, but hardly an emergency. This chewed up another 20 minutes. This was immediately followed by Liberal MLA Laurie Blakeman, who requested a second emergency debate on health care issues in Fort Chipewyan.²⁰ These requests were clearly designed to delay, not to enlighten, and the speaker knew it. But under the rules, he was obligated to accept them. Add in other time-consuming motions and speeches, and by the end of the day—at 11:50 pm on a Thursday evening—there was no time left for Bill 208.

***

A week later, the legislature recessed for the summer and did not meet again until August 24 for the shortened fall sitting. The weather had changed but the opposition strategy had not. Monday afternoons are reserved for private member’s bills, and Bill 208 was the first in line on Monday, August 28. It is standard practice each day to allow MLAs from all parties to introduce any guests they have in the public galleries. Not by accident, the Liberals and NDP had close to one hundred guests that afternoon, and it took forty-five minutes to introduce them all. Question period followed, and that took another hour and half. Then the filibuster began in earnest: more requests for emergency debates, not one but two: the Liberals on the need for more infrastructure spending; the NDP on funding for more affordable housing.²¹

Even some of Conservative MLAs joined in. Thomas Lukaszuk, one of the most outspoken opponents in our caucus, brought a “point of order” on whether the Liberal MLA from Calgary Varsity was in violation of the assembly’s dress code because it “appeared” that he was not wearing a necktie. Debate ensued. We learned later that Dave Hancock, our house leader, had co-operated with the Liberals and NDP in the filibuster strategy. (A decade later NDP Premier Rachel Notley appointed Hancock as a provincial judge in 2017.)

By 4:30, Speaker Kowalski had had enough. He condemned the filibuster but could not stop it.²² He pointed out that the primary objective of allowing private member’s bills was to benefit opposition parties—to give them the opportunity to showcase their policy priorities to the electorate. But now the opposition’s filibuster tactic was setting a precedent that could be used to silence them in the future—to everyone’s detriment.

There’s no hope in hell this afternoon that any private member’s bill is coming up. Right after I call Orders of the Day, we have 16, 17 written questions or motions for returns, and even at five minutes for each one, it’ll be after 5:30. I know what has transpired in the last Monday allocated for private members’ day. I know what’s transpired today. I applaud all the parliamentarians in the room for knowing the rules, applying the rules, and using the rules. …. But just remember what the future will be for private members because I think that the new system now is that no private member’s bill will ever be dealt with on any Monday in the future, period, and that to me is unfortunate. I couldn’t care less what the subject is. That’s totally immaterial to me. It’s the principle of what Parliament is.²³

Bill 208 thus died without ever coming a vote.²⁴ The Liberal-NDP filibuster had worked. But that was still not the end. By the end of August, the PC leadership campaign was in full swing. Both my supporters and my critics knew that Bill 208 could still influence the outcome of this race—and who would be the next premier of Alberta.

Graham Thomson, a columnist in the Edmonton Journal, celebrated the demise of Bill 208, but warned that “Morton may be cheering his bill’s demise.” The Liberal-NDP filibuster, he feared, might have boosted my leadership bid by giving me “a cloak of martyrdom.”²⁵ Colby Cosh, a conservative columnist, echoed Thomson’s alarmist prediction but gave it a positive spin. He described Bill 208 as a “cunning bill” that signalled to Albertans the threat to their freedoms by the “tolerant of everything but intolerance clique.” According to Cosh, the Liberal and NDP “panic-mongering and cheesy parliamentary tactics” had “served Morton’s interests … by reminding Albertans that progressives and the human rights establishment seem to regard freedom of religion as nothing but a pernicious obstacle.”²⁶ Kelly Cryderman reported a similar view: that I was using Bill 208 as a “wedge issue … a brilliant political strategy sharply distinguishing himself from the other eight candidates in the race to become the next premier.”²⁷ Paul Jackson went one step further, writing in the Edmonton Sun that “right now, I’m repeatedly told that Ted Morton has nudged himself into the lead over former provincial treasurer Jim Dinning.”²⁸

Alarmed by such predictions, Naomi Lakritz wrote a blisteringly negative column warning that “anyone who needs proof that Ted Morton should never become the premier of Alberta should read his Bill 208.”²⁹ This was countered by Paul Stanway in the Edmonton Sun, who described the filibuster as “a double blow [to] the rights and freedoms of Albertans.” Echoing my warnings, Stanway concluded that “gay activists don’t want passive acceptance. They want … official endorsement—with all the legislative enforcement that implies.”³⁰

The public debate ignited by Bill 208 did not disappear after Labour Day. The first round of voting was now only three months away. The prospect of my winning the leadership vote and bringing back Bill 208 was a motivating force for some of my strongest supporters but also for many of my strongest opponents. The result was the largest voter turnout ever in a PC leadership race—the subject of the next chapter.

As far as same-sex marriage goes, as I knew even then, it was not the endgame for gay activists and the identity politics / social justice movement partisans. It quickly became a staging area for an even more aggressive campaign not just to “normalize” what became known as “LGBTQ” behaviour and relationships, but to silence and, when necessary, to punish any public disagreement with this “new normal.” Sacrificed on this new progressive altar have been the traditional liberal rights of freedom of speech, freedom of religion, the rights of parents, equal protection of the laws, and due process of law. In short, the very freedoms that Bill 208 was intended to protect. For a more detailed account and vindication of Bill 208, see Appendix 1.