Alberta’s sovereignty act looks increasingly like a sham

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It’s all fun and games until someone loses a country.

Ever since Danielle Smith unveiled her proposed Alberta Sovereignty – whoops, Alberta Sovereignty Within a United Canada – Act, it was clear there were only two possibilities.

Either the act armed the government of Alberta with extraordinary, not to say revolutionary new powers – namely, the power to disregard any federal law it disliked, and to order provincial agencies to do the same. Or it did not.

If the first, it was plainly unconstitutional: no government may decide for itself which laws it will and will not obey, if the rule of law is to have any meaning. If the second, it was the act that was meaningless.

It was possible to argue either case, so long as the legislation remained unused. Certainly it was not encouraging that the act contained a provision declaring the government and its ministers immune to legal liability from “any act or thing done or omitted to be done under or in relation to this Act.”

But on the other hand the government was quite clear that, in its opinion, the act “will not allow Alberta to defy Canada’s Constitution.” Which certainly contradicted what the act’s intellectual fathers – the Premier’s closest adviser among them – had been saying.

So there’s that.

Well now at last we have the first attempt to apply the law, in the form of a resolution introduced in the Alberta legislature Monday, and it would seem interpretive option two – the whole thing is a sham, a bit of performative nonsense – has the early running.

There is first the matter that the federal measures to be nullified – the Clean Electricity Regulations – do not, as yet, exist. The regulations are still in the drafting stage, and would not go into effect until 2035, 12 years from now.

There is second that the actions the resolution instructs the government to take would not, for the most part, change anything. The provincial entities that would be ordered not to comply with or enforce the CER are not required to comply with or enforce them: the regulations, intended to move the country’s electricity grids to net-zero emissions, apply directly to the province’s power producers, not its regulators.

So far as the provincial entities’ participation is needed, the resolution says only that they should refrain from complying “to the extent legally permissible.” In other words, they should do or not do what is already allowed or required by the law, with or without the sovereignty act.

That’s just as well, because if ever their non-services were required – if the province did order its employees to disregard federal law – they would presumably be at risk of prosecution. The province’s assurance that it will shield them from this is as immaterial as the rest: it does not have the power to do this, either. (Left unsaid, of course, is what it would do with those provincial employees who refused to follow it into the lawless abyss. Prosecute them for obeying the law?)

Perhaps it is imagined that the participation of one provincial agency in particular would be required: the prosecutors’ office. The Criminal Code is federal law, but prosecution is generally left to the provinces. Generally, but not exclusively. The feds have been in the business of prosecuting non-Criminal Code offences since Confederation, and of some Criminal Code offences since 1969. They are not automatically obliged to defer to the provinces, as the Supreme Court has ruled since the early 1980s.

The province would seem to be in a pickle. It can order its own agencies and employees not to comply with the CER – but their compliance is not required. Whereas the bodies that would be required to comply, the province’s energy producers, are privately owned. Even the sovereignty act does not pretend the province has the power to order private businesses to break the law.

Ah, but Ms. Smith has an answer to that: set up a Crown corporation to buy the private power producers, some of them at any rate. It could then be instructed to produce power in defiance of the regulations – much in the manner of the Scott Moe government in Saskatchewan, which has ordered SaskEnergy to stop collecting carbon tax on natural gas starting Jan. 1.

Nationalizing an industry just so you can order it to defy the law – socialism, in the service of anarchy – will strike many readers as a novel version of conservatism. Certainly it is a strange way to achieve the Premier’s professed goal of “restoring certainty” to the industry.

But it’s no more of a stretch than claiming you have the power to decide which laws you will obey, or that a province can step outside of federal law while remaining a part of a “united” Canada.

Editor’s note: Editor’s note: A previous version of this article incorrectly stated that SaskPower would stop collecting carbon tax on natural gas. This version has been updated.