Alberta's "Sovereignty Act" passes after amendments - yes, it's still garbage

Oh, and Danielle Smith doesn't understand federalism

I wrote about Alberta’s Bill 1 last week, calling it the most unconstitutional bill in modern Canadian history. Late last night, the Bill passed 3rd reading, meaning it’s on its way to the Lieutenant Governor for Royal Assent.

But, there were some amendments! The key amendments appear to be removing the Henry VIII clause I wrote about in some detail in that previous post. The Bill also abandons the provision that suggests a resolution in the legislature could be passed if a federal initiative was deemed harmful to Albertans’ interests, rather than just unconstitutional. Now the Bill ties the notion of harm directly to the assertion by the legislature that a federal initiative violates the Constitution.

Neither of these amendments do much to salvage the Bill from a constitutional perspective, in my opinion. The Alberta government is still claiming the power to order provincial entities to flout or even violate federal law. The Bill still pretends that the provincial legislature and the executive cannot only declare they believe a federal initiative is unconstitutional, but that they have the authority to act on that belief and attempt to negate federal law. The former objective is a direct attack on the very idea of federalism - not any particularly federal head of power, though such an attack would be enabled by the Bill, but on the entire division of powers - while the latter is the usurpation of the role of the courts and, as Martin Olszynski and Nigel Bankes have written, arguably in violation of section 96 of the Constitution Act, 1867.

So while the amendments might remove the most blatant assault on responsible government and the executive-legislative separation of powers, the Bill remains a clear attack on the division of powers, and the separation of powers vis-a-vis the judiciary’s role.

The fundamental purpose of the Bill has been read in two different ways. Some of its defenders have suggested it can be read merely as a way to protect provincial jurisdiction against federal intrusion. Critics, including myself, see it as directed against federal jurisdiction entirely. Otherwise, why include provisions that explicitly contemplate the violation of federal law? Indeed, the entire apparatus is directed against federal initiatives, from the preambular statements to the core provisions.

I suspect how courts conceive the purpose of the Bill will determine its fate. Because ultimately the Bill is a gateway to unconstitutional action. The measures it contemplates could theoretically fall short of the negation of federal initiatives. Yet this only underscores how incoherent and unnecessary this Bill really is: its amended version will now require any action on the part of the province to follow from future legislation, future legislation that could have just been introduced whenever needed. In short, once that future legislation becomes law, this ‘Sovereignty Act’ seems largely superfluous. The Bill itself is a mere apparatus designed to presage orders to provincial entities that might require them to violate federal law.

Defenders have also suggested that there’s nothing unconstitutional about a province refusing to enforce federal law. First, it’s far from clear that’s all this Bill contemplates. Second, while it is true a federal law cannot burden provinces by requiring them to create new agencies or programs to implement federal initiatives, it’s not at all clear that provinces can simply refuse to enforce any federal law as a sweeping rule. Given the considerable overlap between the division of powers, and the nature of federalism as practiced and as recognized by courts, federalism would cease to function if provinces acted with broad obstructionism.

Quebec’s refusal to enforce the old anti-abortion provisions of the Criminal Code came only after repeated losses in jury trials against Henry Morgentaler. That sort of discretionary refusal to enforce is not the same as a formal rule or order to provincial entities to ignore federal law. In fact, the latter as applied to criminal law would be a violation of prosecutorial independence. The police as a whole cannot simply ignore criminal law, including those police forces that are ‘provincial entities’. The same applies to many other areas of overlapping jurisdiction where federal law plays a key animating role.

Defenders have cited a 2015 case called Canada v. Quebec, which concerned the fate of the federal long-gun registry data, to support the proposition that, hey, Alberta doesn’t owe the feds a thing and sure it can flout federal law. But that case concerned the ability of the federal government to destroy data that was part of a federal program. Quebec had wanted the data pertaining to Quebec gun-owners so that it might create its own registry. The fact that a 5-4 majority of the Court found the feds had the right to destroy the data, and that Quebec had no constitutional right to the data, hardly suggests that Alberta therefore gets to negate federal laws regulating the environment or banning guns. The pith and substance analysis of any conflict will depend on the nature of the federal initiative and/or the provincial response involved, and which heads of powers are implicated.

Indeed, a pith and substance-style analysis of this Bill itself might rightly determine that its objective is not related to section 92 but fundamentally about attacking section 91.

A final thing to bear in mind here is Danielle Smith’s apparent demented view of Canadian federalism. She is quoted as saying: “‘It’s not like Ottawa is a national government,’ said Smith. ‘The way our country works is that we are a federation of sovereign, independent jurisdictions. They are one of those signatories to the Constitution and the rest of us, as signatories to the Constitution, have a right to exercise our sovereign powers in our own areas of jurisdiction.’”

The initial parts of this quote would be merely pathetic if it wasn’t so alarming. Yes - and I can’t believe I actually have to write this - Canada has a national government. Smith seems to think Canada is a confederation of sovereign states, more like the European Union than a federal country. This is flatly incorrect (although it’s nice of her to acknowledge the feds as a signatory to the Constitution, whatever that means). The only saving grace is that she mentioned “our own areas of jurisdiction” and so at least implies provincial sovereignty is not absolute. Maybe she’s confused because we confusingly refer to the 1867 deal as “Confederation”. But if anything Canada was initially designed as a quasi-federal country with an extremely powerful national government, one that even had oversight powers in relation to the provincial order of government. Hell, Alberta itself didn’t join Canada as a sovereign entity, we carved it out of the Northwest Territories and created it, along with Saskatchewan, via an Act of the federal Parliament!

I suspect the courts might deal with Bill 1, if an NDP government isn’t elected and doesn’t repeal it first. It’s possible courts might show deference, and regard the ‘Sovereignty Act’ as an empty shell (which it kind of is). But I think judicial deference here would be a mistake, given the underlying, and I think obvious, unconstitutional objectives that animate it.