After an Alberta judge granted a temporary injunction blocking a provincial law that would ban doctors from providing gender-affirming care to youth, Premier Danielle Smith said she intends to fight the decision in court.
“The court had said that they think that there will be irreparable harm if the law goes ahead. I feel the reverse,” Smith said on her weekend radio program, Your Province, Your Premier, on Saturday, a day after Justice Allison Kuntz of the Alberta Court of King’s Bench handed down a written judgment on Bill 26.
“We want to battle this out, and the way you do that is you go to the higher levels of court. If we were to impose the notwithstanding clause, everything would stop. We actually think that we’ve got a very solid case.”
Eric Adams, a professor at the University of Alberta’s law faculty, said while he doesn’t think the injunction is necessarily a clear sign that a constitutional case could be won, it does mean that lawyers will present strong and credible arguments against the legislation.
“This isn’t a final resolution of the constitutional issues — far from it,” Adams said.
“Those are … possibly even still years away. But the question was: Can the law operate during that period where the legislation is being challenged? And this judge said that, on balance, she’s electing to hold that law off until the court weighs in on its constitutionality.”
Bennett Jensen, legal director of 2SLGBTQ+ advocacy group Egale Canada and co-counsel in the case against the province, said getting the law temporarily put on hold has been a “tremendous relief.”
“I think we’ve been holding our breath until we got this decision,” he said.
Responding to the government’s decision to challenge the injunction, Jensen said that “the province has been clear that it wants to act in the best interests of young people in the province…. Now we have a judicial decision finding on the basis of evidence that their law will cause irreparable harm to young people, so I think it merits a reconsideration.”
Notwithstanding clause a ‘last resort’
While the premier indicated the province will challenge the injunction through the court system at this time, she has previously said that using the notwithstanding clause is on the table as a “last resort.”
“It’s certainly one of the tools in the toolkit that the province has been preparing the public for by signalling that they were prepared to use it,” Adams said.
“The government itself can’t simply snap its fingers and have the notwithstanding clause appear. It’s got to be put into the law itself.”
The provincial legislature is not scheduled to sit again until October, which means that the notwithstanding clause could not be included in the legislation until then, at the earliest, he said.
The clause was first used in Alberta by then-premier Ralph Klein’s Progressive Conservative government in 1998, then under Klein again in 2000.
“The last time Alberta considered using the notwithstanding clause, the public reaction against [it] was fairly swift and they stepped back,” Adams said.
But the politics around the notwithstanding clause have changed a bit since then, he said, with it being used in Saskatchewan, Ontario and Quebec.
Adams said Friday’s ruling indicates the province’s fight for Bill 26 won’t be an “easy walk through the park,” as there are serious constitutional issues to be decided.
“We’ll see … whether or not the government has to contemplate whether or not they want to take this out of the hands of judges entirely, because they might not like the direction this litigation is headed in.”
A law that prohibits doctors from using puberty blockers and hormone therapy on youth under the age of 16 is facing another legal challenge.
