Alberta Orders Censorship in All Public Libraries: What Are Libraries’ Options?
Background
The government of Alberta has imposed unprecedented censorship on all public libraries in the province – a first in Canadian history. In May, the government pushed through Bill 28, giving the Minister of Municipal Affairs virtually unlimited authority over almost all aspects of all Alberta public libraries – an extreme and unwarranted attack on the province’s public library boards, staff, and administration that a recent poll found were trusted by 82% of Albertans.
Using the framework created by Bill 28, the government then adopted regulations requiring public libraries impose a ban on anyone under 16 having access to “library materials” deemed to contain a visual depiction of a sexual act. To be clear, no public library in Alberta, or the rest of Canada, has any material that violates the Criminal Code provisions on obscenity or child pornography.
The principal target of the government’s censorship is young adult and adult graphic novels and memoirs by LGBTQ+ authors. But the wording of the regulation means it can equally capture graphic novel versions of books like Margaret Atwood’s Handmaid’s Tale and George Orwell’s 1984 as well as leading books explaining human sexuality to children and teens like Robie H. Harris’s award-winning and million-copy best seller, It’s Perfectly Normal.
Under the regulation, teenagers under 16 can only have access to these materials at their public library in Alberta if their parent or guardian provides the library board authorization for them to use or borrow such library materials. Giving parents veto power over what young teens can read arguably violates the Convention on the Rights of the Child, an international agreement on childhood rights that, ratified by 196 countries (including Canada), is the most widely ratified human rights treaty in history.
To deny that they are engaged in censorship, the Alberta government has refused to provide a list of books and other “library materials” that are to be restricted. Instead, its regulation provides a list of rules and requires each public library to determine what library materials are to be restricted – a list of rules that are both precise and vague. The library materials that are proscribed fall under s. 35.1 (d)’s definition of “sexual act” -- “an activity or action of a distinctly sexual nature.” Five “sexual acts” are specifically listed in the provision that also states the prohibition includes but is not limited to those acts. In other words, libraries must also censor (restrict) access to books that may be deemed to visually depict a sexual act, even if not specified in the government’s regulations.
There is no evidence to justify the government’s actions. In the ten years from 2016 to today, members of the public have registered only 85 concerns about books or other literary materials for children or youth registered with public libraries in Alberta. This is a startling indication that there is not a problem, given 1,351,621 Albertans have library cards.
Are the Government’s Actions Legal?
Bill 28 and the associated regulations raise a variety of legal issues:
1. Does the Alberta government have the legal authority to infringe the rights of minors under age 16 by restricting their access to certain library material unless a parent or guardian grants permission? Note that the freedom of expression in Canada protects an individual’s right to express themselves and to seek and receive information.
2. This is an especially important legal question for a public library. Unlike in a public school, where children are required to attend and participate in the government’s curriculum, public libraries are places of choice where individuals can pursue their own interests without content being withheld from them.
3. As the Centre for Constitutional Studies has spelled out, “several years after the Charter was enacted, the Supreme Court of Canada created a general framework for deciding whether government action that infringes a Charter right is justified. This is known as the Oakes test (named after the case in which it was created). Before using this test, a Charter right must be proven to have been infringed. If that is the case, then the Oakes test is used, with the government bearing the burden of proving that it has complied with the requirements of the test and that the infringement is therefore justified. The test consists of four distinct steps:
Step 1 - The government that infringed the Charter right must explain the objective of its impugned law or conduct. The objective must be pressing and substantial.
Step 2 - The government must demonstrate that the law or policy is rationally connected to the pressing and substantial objective. If the law or policy is arbitrary or serves no logical purpose, then it will not meet this standard.
Step 3 - The government must demonstrate that the law or policy is minimally impairing of the Charter right. This means that the law must impair the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”
Step 4 - The government must demonstrate that the beneficial effects of the law or policy are not outweighed by its negative effects on the Charter right in question. This is generally known as the proportionality requirement.
If the government fails at any of the steps within the Oakes test, the infringement is not justified. If this happens, the court will invalidate the law or policy on the ground that is ‘inconsistent’ with the Constitution of Canada.” [emphasis added]
It is by no means clear that the government’s actions would meet the requirements of the Oakes Test.
Options for Libraries – Pros and Cons
Option #1
Accept the government’s legal requirement that each public library identify all library material to be restricted, i.e., agree that the library will determine what is to be censored within the government’s open-ended framework in the Regulation.
Pros
- Ensures the library will suffer no financial or other penalties from the Alberta government.
- Provides the library the ability (at least initially) to minimize the range of materials deemed to fall within the government’s open-ended restrictions by interpreting those restrictions as narrowly as possible in its identification of library materials to be restricted.
Cons
- Abandons public libraries’ foundational commitment to intellectual freedom by carrying out the Government’s order and serving as agents of censorship on the government’s behalf.
- Foregoes libraries legally challenging the law.
Option #2
Acknowledge that the government is asserting its authority to regulate the public’s access to public library material but demand that the government provide a list of the titles of all “library materials” to be restricted and advise the government that the libraries’ compliance is contingent on a government list of restricted titles.
Pros
- Alberta public libraries at least nominally uphold their commitment to intellectual freedom by refusing to draw up the lists of what is to be restricted – requiring the censoring body to do so. In doing so, they make clear to the public that it is the government that is restricting their right to intellectual freedom.
- Allows the possibility of a legal challenge.
Cons
- Leaves public libraries vulnerable to penalty if the government refuses to provide the list of specific library materials to be restricted but rather insists that each library comply with the regulations as currently written.
Option #3
Advise the government that its actions are an unconstitutional infringement of the Charter of Rights and Freedoms’ Section 2(b) Right to Freedom of Expression and that libraries will be seeking to launch a constitutional challenge.
Pros
Publicly upholds the public libraries’ foundational principle of intellectual freedom for Canadians.
Obstructs implementation of what libraries believe to be an unconstitutional action of the Government of Alberta.
Sends a warning to any other province or territory considering similar actions.
Allows the courts to be the final arbitrator of the matter.
Cons
Public libraries must cover the cost of the legal challenge.
Will subject the libraries to vehement criticism by the Government of Alberta and by parental rights groups that pressured the Government to introduce the challenged legislation.
Concluding Comment
The Alberta government has placed the province’s public libraries in an untenable position. Libraries can comply with a censorship regime that requires them to decide which books Albertans under 16 may access freely. They can insist that the government itself identify the material it wants censored; or they can stand on principle and challenge the government’s actions in court. Whichever route library boards choose, their decision will set a crucial precedent not only for the communities they serve and the province, but also for free expression and intellectual freedom across Canada.
