LYTLE: Smith's Bill 20 seems heavy-handed, even a tad mediaeval

In 1321 the First Earl of Winchester and his son, Earl of Gloucester were attainted for supporting King Edward II. As was normal for the times, they lost their lives. Oliver Cromwell was served with a bill of attainder in 1660 that was backdated to 1649. It did not matter that Cromwell had died as Lord Protector two years earlier in 1658.Bills of attainder were wonderful ways of getting “justice” when the laws could not be relied upon to do the job. If a king wanted to rid himself of an older wife and replace her with a new one, then a bill of attainder was just the ticket. Get the boys together to pass a law saying that missy was relaying secrets to the French and the job was done. No need for messy court cases or prying priests.When the English colonists fought their way to freedom against the arrogance and high taxes of King George III, they wrote a constitution that specifically outlawed the practice of attainder and that clause has been used with surprising regularity. In the Commonwealth countries old habits have died rather more slowly. Bills of attainder are not illegal or unconstitutional, but they are frowned upon. The Canadian parliament for example attempted to pass laws that would inflict judicial penalties on Clifford Olson in 1984 and Karla Homolka in 1996. The Speakers of the House and the Senate ruled that bills of attainder are outside of parliamentary practice, and both were struck down.The last bill of attainder to pass the British parliament was in 1820 when an attempt was made to divorce Queen Caroline from George IV due to her alleged adultery — a bit rich given the reputation of her husband. The House of Commons refused to take up the bill from the House of Lords. In the aftermath of World War II, Winston Churchill pressed for a bill of attainder to allow the summary execution of German, Italian and Japanese leaders. He was dissuaded from pursuing this course due to the illegality of the process under the US constitution.But what is a bill of attainder and why bring it up? A bill of attainder is also called a Writ of Attainder, a Bill of Pains and Punishments or a law ex-post facto. It is a legislative act declaring a person or group of people guilty of a crime and subject to a defined punishment without reference to a normal judicial process. In its more general sense, the penalty or punishment is to remove a right or privilege from the target person or group nullifying their civil rights.For example, the Defund Acorn Act was passed by the United States Congress in 2009 to prevent federal funds from going to that community organization group. The law was struck down as attainder by a federal court. On appeal the government argued that the contribution of federal funds was only 10% of the group’s budget and so there was no effective punishment. The bill was allowed to stand.Closer to home, the Alberta government has offered Bill 20 to update the Municipal Affairs Act. The bill will authorize political parties at the municipal level, and it reinforces the notion of legislative supremacy. I am indifferent to many of the goals of the legislation including allowing the formation of municipal party politics. However, those clauses which allow the cabinet to reach into municipal councils to reverse by-laws or remove councilors are not so benign. When I read Alberta Bill 20, I wondered if this was, at least in respect of the removal of councillors, a bill of attainder. Our premier has argued that the bill is necessary because “many have been asking for it” and in its defence, referenced the case of a candidate for city council who decades prior was convicted of misconduct in a previous job. It was suggested that the candidate be disqualified from running for election. Does the government feel that the investigation into that candidate was insufficient and ex-post facto needs the soft touch of the cabinet to set things right? The Minister of Municipal Affairs who will be tasked with supervising the legislation if the bill is passed, assures us that “…the provision (removal of a councillor) will be rarely used” and he hopes that it never has to happen. I also hope that taxes will never go up. If a city councillor or village reeve needs to be removed are there no existing laws to facilitate that removal? Do we have no tools other than the long arm of the provincial Cabinet? Let me be clear that I am not a lawyer and there may be very good explanations for why a provincial cabinet rather than the affected electorate should be the blunt instrument to remove an unpopular elected official. I am not aware of those explanations and this aspect of the bill strikes me as the scheming of an unhappy Medieval English king. George IV thought it was in the public interest to divorce his wife and remove from her the appurtenances of royalty. The English people thought otherwise, and the Parliament of Great Britain agreed.I think this arbitrary cabinet power should be removed from Bill 20, if only to stop attainting the other aspects of the bill. And, for the record, it would make me happy.Murray Lytle P.Eng is a former commissioner on the National Energy Board