The most unconstitutional bill in Canada's modern history

The Alberta Sovereignty Within a United Canada Act

Yes. I’m calling it the most unconstitutional bill in Canada’s modern history. (Note: Econ Prof Trevor Tombe pointed to legislation under Bill Aberhart to disagree, but modern history in the constitutional context means post-WWII, if not 1982).

Yesterday the Alberta government under Danielle Smith unveiled Bill 1, the Alberta Sovereignty Within a United Canada Act. This is the ‘Sovereignty Act’ Smith had long talked about and it is every bit the assault on the constitutional division of powers, rule of law, and democracy her initial descriptions foretold. But for an added surprise it includes an additional assault on responsible government and the separation of powers in the form of provisions that would allow the government to unilaterally amend legislation - any legislation - in the legislature’s stead.

Rather than go through Bill 1 line-by-line, I want to get to the core issues. Bill 1 purports to allow the Alberta legislature to determine whether a federal law violates the constitution or to declare whether it “causes or is anticipated to cause harm to Albertans” as a prelude to allowing the government to amend legislation to combat, revoke, or address the allegedly dangerous federal law(s) however it sees fit. This can happen only after a resolution to this effect passes the legislature. But upon the passing of such a resolution, Bill 1 gives a free hand to the government to change any law on the books and to order “provincial entities” - which include any provincial agencies or institutions (municipalities, universities and even the police!) - to ignore or violate federal law, even criminal law.

I want you to read that last sentence again.

We’re talking about a full-frontal assault on not only the very idea of federalism and the constitutional division of powers but also on responsible government and representative democracy, the lynchpins of democracy in a parliamentary system that rest on the legislature not abdicating its roles in either holding the government to account or, y’know, being the body that legislates.

And to be extra clear, under the terms of section 3 of this Bill, Smith and her government are claiming the right to order provincial entities to ignore or violate federal law even if that federal law is valid. Note the “or” before section 3(b)(ii):

Not that this wouldn’t be blatantly unconstitutional absent section 3(b)(ii). Neither the government of Alberta nor the legislature of Alberta gets to decide whether federal law is valid in Alberta. Yes, a legislature can pass all the motions or resolutions about constitutionality it wants. But only the courts get to determine whether a federal law intrudes on provincial jurisdiction, and whether that law is valid and continues to operate or apply. The Bill’s attack on the separation of powers extends not only to usurping the legislature’s role but also that of the courts!

So even if the Bill didn’t propose to allow cabinet to amend legislation, its other provisions - particularly concerning the fate of federal law - are obviously unconstitutional. But it is this context that also makes the delegation of legislative authority unconstitutional here.

This gets a bit complicated, so let’s explain: legislatures delegate ‘legislative authority’ all the time. Under many laws, governments and agencies are granted the power to enact regulations and orders akin to ‘legislating’ (although we tend to distinguish between ‘primary’ legislation and ‘secondary’ legislation in this context). This is usually to ensure efficiency and flexibility in administration and the implementation of complex legislative regimes. And importantly, such delegation is usually tied to a specific law and a tailored set of objectives within that law.

Delegation has also been upheld in the context of primary legislating (called a Henry VIII clause - a phrase that itself should tell you what constitutional experts think about such delegation on principle) in the past in part because the legislature has been regarded as supreme - if Parliament passes a law granting authority, the law stands until Parliament says otherwise. The question of whether Parliament can ever truly bind itself, or abdicate its legislative role entirely or nearly entirely, is usually one posed only in the context of complex constitutional theory. Danielle Smith has introduced a Bill so absurd it provides a context for discussion that used to be confined to radical hypotheticals.

Anyway, the landmark Canadian case dates back to 1918 In Re George Edwin Gray and concerned emergency authority in the War Measures Act, 1914, during that little scuffle we call World War 1. And even then a majority of the Supreme Court was clear that limitations do exist: “Parliament cannot, indeed, abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the executive government. Such powers must necessarily be subject to determination at any time by Parliament, and needless to say the acts of the executive, under its delegated authority, must fall within the ambit of the legislative pronouncement by which its authority is measured.” The issue was revisited in the recent carbon pricing reference, and there was some disagreement expressed by Justice Côté on this point, but in that context the delegated authority was narrowly tailored to the specific legislation at issue. (Which isn’t to say that the Court hasn’t been wrong to permit the delegation of primary legislative power. It’s completely out of keeping with modern democratic principles outside of the most extreme emergency scenarios).

Bill 1, to the broadest possible extent, delegates the power to legislate, and without any safeguards or limitations on scope or content, or even meaningful oversight of this power by the legislature once the initial resolution has passed. Yes, the legislature can rescind the power to give orders but in a context of majority government this essentially establishes a prolonged dictatorship so long as the government is ‘legislating’ for the purpose of frustrating federal law. The Bill provides no measures for automatic review beyond a two-year limitation on the power to give orders, but under section 5 cabinet itself can unilaterally extend its power for an additional two years. In other words, Bill 1 is specifically designed to give cabinet the legislative power for the entire life of the legislature.

I do not think this could possibly be interpreted as a valid Henry VIII clause. Suffice to say, I fully agree with the conclusion of Professor Eric Adams on this point: “Such executive powers, widely derided as ‘Henry VIII clauses’ for their disdain for democratic principles, might be justified in narrow circumstances where expediency or other limits justify the end-run around the legislative process. But they are impossible to justify in the context of the perpetual federalism squabbles envisioned by the act.”

It’s also worth stating the obvious point: such delegated executive power also can’t be used to violate the division of powers, which is - despite protestations to the contrary in section 2 of the Bill that “Nothing in this Act is to be construed as (a) authorizing any order that would be contrary to the Constitution of Canada” - is the very purpose of Bill 1.

That’s enough about the Henry VIII clause.

Even absent this executive power, the remaining aspects of Bill 1 - indeed, its core purpose - is effectively secessionist in terms. It purports to give the Alberta legislature the power to end federalism in Alberta: it is not the exercise of its own sovereign power, but the assertion that it can negate the exercise of federal sovereign power within the province. This is direct attack on a core pillar of the constitution, and not in any nebulous “they risk eroding the federal principle” sense, but on ending the very idea and operation of a constitutional division of powers.

This is a Bill drawn up by deranged constitutional saboteurs. It is anti-democratic. It is an assault on the rule of law. It is an assault on the courts. It is itself an attack on the Alberta legislature and representative democracy. And the scariest thing is, it is not remotely hyperbolic to say so.

So what now?

When confronting such a blatantly unconstitutional Bill, thought immediately goes to what recourse we have to stop it. First, it’s worth noting the Bill isn’t law yet. It seems naive to suggest this, but perhaps negative attention will cause the government to climb down.

But absent a climb down or backbench opposition, the Bill will become law. It would be struck down by courts, but that takes time. So we’ve already see calls for the federal government to use the power of disallowance or the Lieutenant Governor to refuse Royal Assent or reserve it. Any of these would not only precipitate a constitutional crisis, but they would risk playing into Smith’s hands by “proving” undue influence of federal authority in Alberta.

The federal government has the authority to expedite a judicial decision by employing the reference power. Basically, it just asks the Supreme Court to determine the constitutionality of the Bill. Normally it would be seen as antagonistic for the federal level to refer a provincial bill to the Court, but it’s hardly unprecedented (indeed, the provinces have often enough employed their own reference power to contest federal law). This may be the best of a lousy set of options.