Excuse me while I light my hair on fire

No cute metaphor today, folks. We’ve seen the Alberta Sovereignty Act, and it’s not pretty.

I’m not a lawyer, so take this with a grain of salt. And I’m just working through what it might mean. (And I know the law profs at ablawg.ca are hard at work on their analysis, so watch for it).

As I understand the Bill:

• It gives the provincial legislature the authority to “offer an opinion” that a federal law or ‘initiative’ is unconstitutional, either because it intrudes on provincial jurisdiction or it “violates the rights and freedoms of one or more Albertans under the Charter.” And once that opinion is offered, the legislature can identify action or actions Cabinet should take.

• Once a resolution passes, Cabinet then has the authority to “suspend an enactment” (i.e. if the province is enforcing the offending legislation, stop enforcing it) AND/OR take other measures (i.e. retaliation).

• No individual Albertan can be forced to break federal law, but “A provincial entity and its members, officers and agents, and the Crown and its Ministers and agents, must comply with any directive issued by the Lieutenant Governor in Council under this Act.” So, an organization like a municipal police force, university or non-profit receiving provincial funding could be compelled to break federal law that applies to it.

So let’s ask some questions about whether this legislation causes the same concerns as the proposal Smith was putting forward during the UCP leadership.

Problem 1: Unconstitutional, because it gives the legislature authority that should only be exercised by the courts. Seems to me that “offering an opinion” and then giving Cabinet authority to try to prevent enforcement comes pretty close to giving this authority. Remember, in our system of government, it’s the courts that decide whether legislation is unconstitutional, not other legislatures.

Problem 2: Erodes rule of law because it proposes to ignore court rulings. Here, it’s clear that the actual legislation does not go this far, so it is more moderate in that respect.

Problem 3: Erodes rule of law because it empowers a legislature to engage in unconstitutional acts. Here, I think the problems still exist. The legislation not only invites legislators to take on the role of the courts, but also to authorize action that may involve breaking the law. The Act is clear that an individual cannot be compelled to break federal law, but it is equally clear that a provincial entity can be compelled to do so. (If a company applies for approval for a project under the federal Impact Assessment Act and is denied, could the provincial government purchase the company, turn it into a provincial crown corporation and instruct it to go ahead with the project without federal approval?)

New problem: The Act gives the Cabinet emergency powers. The Act allows Cabinet to change legislation without the approval of the legislature. This is a power given for emergencies (like the pandemic), but isn’t the norm otherwise. This is a really serious concern.

So, overall, the legislation has many (but not all) of the problems of the Sovereignty Act that 5/7 UCP leadership contestants opposed, plus a new one. I wonder how comfortable they will be voting for the bill…

Let’s imagine…

So how might this legislation be used? The Premier has reportedly sent her Cabinet ministers looking for instances of federal overreach to correct.

Example 1: Firearms - Let’s say the legislature ‘offers an opinion’ that federal firearms restrictions are unconstitutional because they violate Charter rights. Cabinet could then require the Calgary Police Force to stop enforcing certain firearms restrictions, so it would be OK to own a certain gun in Calgary, but not in Vancouver. (There are similar instances of this kind of non-enforcement in other provinces, notably of abortion law in Quebec before the law was struck down).

Example 2: Carbon tax - Let’s say the legislature ‘offers an opinion’ that new federal rules governing greenhouse gas emissions are unconstitutional because they interfere with Alberta’s jurisdiction over natural resources. The government couldn’t exempt companies from the federal law, or require them to disobey it. It could conceivably purchase the company so that it was a provincial ‘entity’ and then require it to disobey the law. But that would get pretty expensive, and the company would still end up being prosecuted for violation of federal law. So this is all pretty unlikely.

But in a circumstance like this, the Act allows the government to take other measures to signal their displeasure. What if the government decided that it would order provincial entities to send federal taxes collected through their payroll systems to a provincial holding account, rather than to the CCRA? (This isn’t an out-of-the blue scenario; it’s stolen from the pages of the Free Alberta Strategy, where the Sovereignty Act was first proposed). Now, arguably this would violate the provision that individuals can’t be forced to break federal law, but the holding account might be used as a way to claim people weren’t in violation. An order to do this would put the leaders of public sector organizations in a pretty tricky situation.

What’s your emergency?

When asked how she could justify giving the Cabinet emergency powers, Smith replied that the federal government was trying to impose greenhouse gas emissions restrictions that would be devastating to the oil and gas industry. So what we’re hearing is that the democratic rights of Albertans are secondary to the interests of oil and gas. Let that sink in for a moment.

The underlying assumptions about inter-governmental relations

Smith claims that she hopes that she never needs to use the Act, and that “it’s already working” (with a pretty dubious bit of evidence around the federal environment minister’s statement at the end of the latest climate meeting, noting provincial control over natural resources). The theory here appears to be that the federal government would be so upset by the prospect of the Alberta government initiating chaos in the province that it would change its plans.

Keep in mind that using the Act would hurt Albertans at least as much (if not more) as it would hurt the interests of the federal government. Imagine the turmoil within the provincial public service, or the health care system or the post-secondaries if orders start being issued to ignore federal laws or policies. If gun restrictions aren’t enforced in Alberta cities, it’s Albertans who would be in the line of fire. And so on.

And finally, there is no way that the federal government will allow itself to be seen to be caving in to these antics. Because that would invite every province to give itself the same kind of power. At that point, the federal government becomes entirely ineffective and the constitution starts to unravel.