The great provincial revolt against constitutional government continues. Just now attention is focused on the Alberta Sovereignty – whoops, Alberta Sovereignty Within a United Canada Act – and why not: it is a quite demented piece.
But Alberta is hardly alone in its attempt to liberate itself from the Constitution and constitutional norms. There is Quebec, of course, where this sort of thing is mother’s milk – though even by Quebec’s standards, Bill 21 and Bill 96 take things to a new level of jurisdictional presumption and contempt for Charter rights.
But there is also Ontario, which appears to be in some sort of a race with Quebec for who can invoke the notwithstanding clause most often. And waiting in the wings is Saskatchewan: its own provincial rights legislation, unveiled earlier this year, is less crazy than Alberta’s, but stay tuned. Should Alberta get away with it, no doubt Premier Scott Moe will be back for more.
How should the federal government, which presumably has an interest in preserving some sort of workable federation, respond to all this? The first option is to do nothing: stall, change the subject, and let time and the electoral cycle do the rest. Remember that cockamamie Alberta referendum on equalization? The one its sponsors insisted “could not be ignored?” It was, and nothing came of it.
You can see Justin Trudeau trying this on now. “I’m not looking for a fight,” he told reporters the other day. The subtext: maybe Danielle Smith wants to obsess over arcane constitutional disputes – I’ll focus on the issues that people really care about. There’s a provincial election coming in the spring. Polls show the sovereignty act is unpopular with Albertans; so is Ms. Smith’s government. Maybe the whole thing will blow over.
Or maybe it won’t. Maybe her gamble on the act pays off, and she wins the election, with all the jurisdictional havoc that follows.
So the backup to option one is: let the courts handle it. As no doubt they will. Attempts have been made to argue the act, despite appearances, might yet be constitutional. After all, the Constitution does not actually require provinces to enforce federal laws. And haven’t there been cases where this or that province declined to enforce this or that law?
But there’s a difference between merely declining to enforce a particular law, and a systematic attempt to prevent others from obeying it. The law is not an ass, and the courts are not fools: they are not about to collude in the neutering of an entire order of government. A law whose “dominant purpose” is transparently to give the province a wide-ranging veto on federal laws is not going to be saved by narrow legalisms.
But it could be a long time before a case reaches the Supreme Court. A third option, then, is for the federal government to refer the law directly to the Supreme Court. That’s a little more provocative, and you’d want to get the timing right. But as the Smith government insists its bill is constitutional, it can hardly object to testing that proposition in court.
Maybe such an extraordinary challenge to the constitutional order deserves a more robust response. Should the feds simply set aside the law, using the power of disallowance?
Not in this instance. I’ve talked about using disallowance, or the threat of it, as a deterrent to the routine and pre-emptive use of the notwithstanding clause. But that’s because there is no other recourse: notwithstanding takes the courts, ordinarily the referees of jurisdictional disputes, out of it. That’s not the case here.
All the same, it would be wrong to look at the Alberta case in isolation. There is a fever of anticonstitutionalism afoot, drawing on Quebec’s example and fed by populism’s disdain for norms of political conduct. While it might be prudent in any individual case for Ottawa to keep its powder dry, the sum of all these prudent decisions is to send the message that the feds are simply unwilling to stand up for themselves, or the Constitution, or Canada.
At some point the federal government has to be willing to stare down the provinces. Otherwise people will draw the appropriate lesson: If it does not believe in its own self-worth, why should we? If now is not the time for measures like disallowance, preparations should nevertheless be under way for its use in the future.
It may even be wise to share these plans with the public, setting out the terms and conditions under which it would be used – at the very least, making it clear the federal government regards it as a legitimate option. We’ve tried co-operative federalism, and executive federalism and even asymmetric federalism. Maybe the time has come for a little alpha federalism.