Alberta Premier Danielle Smith speaks at a news conference after the Speech from the Throne in Edmonton on Nov. 29.JASON FRANSON/The Canadian Press
First, the good news: The government of Alberta intends to obey the law. It says so right there in Bill 1, the Alberta Sovereignty Within a United Canada Act: “Nothing in this Act is to be construed as … authorizing any order that would be contrary to the Constitution of Canada.” Not only that, but the government says it would “respect” a court ruling to the contrary.
No, wait, that’s the bad news. It is surely bad news – just about the worst possible – when a government has to make a point of saying it would not tear up the Constitution or defy the rule of law. Possibly the reason it sensed there might be some doubt on this score is that everything else about the bill suggests it would – not incidentally, or as a byproduct of some other objective, but as its direct and only purpose. As one of the bill’s intellectual godfathers has put it, breaking the Constitution “is the whole point.”
So no, the Danielle Smith government’s assurances that the bill does not do what it plainly does, far from allaying these concerns, only reinforces the impression of bad faith. When the government declares the bill “will not allow Alberta to defy Canada’s constitution,” that it is only “defending the federal-provincial division of powers,” it means that it is fundamentally redrafting it.
By arrogating to itself the unilateral right to decide which federal laws should apply in Alberta, the government is not only subordinating federal authority to its own but also that of the courts as constitutional interpreters. Likewise, when it says the bill “will not allow Alberta to separate from Canada,” it means the bill would not detach Alberta from the Canadian constitutional order de jure, but only de facto.
But never mind what the government says about it. What does the bill itself say? It says that once the legislative assembly has passed a motion declaring itself of the “opinion” that a federal law or regulation is unconstitutional or “causes or is anticipated to cause harm” to Albertans, together with its recommendation for measures the government “should consider” in response, the government may “set out provisions that apply in addition to, or instead of, any provision” of any provincial law in response, or “suspend or modify the application or operation of all or part” of it.
It can also “issue directives to a provincial entity” to disregard any federal initiative; the provincial entity “must comply” with it. Finally, the government exempts itself and anyone under its orders from any liability arising from “any act or thing done or omitted to be done under or in relation to this Act.”
Let’s take each of these in turn. For starters, there is no lawful role for a provincial legislature to decide whether a federal law is constitutional or not, or to erect what the government calls a “constitutional shield” against federal intrusions. In a society based on the rule of law, that is the role of the courts. Full stop. There are even less grounds for a province – or a court for that matter – to countermand federal laws merely because it thinks they are likely to cause “harm,” whatever that is supposed to mean.
But it isn’t only the feds or the courts the bill would subordinate to provincial fiat. The same would apply to the province’s legislative assembly. Once a motion finding “harm” had passed, cabinet would have free rein to suspend or rewrite provincial laws as it pleased. The bill not only violates the division of powers, that is, but the separation of powers. It is not only federalism or the rule of law it tramples underfoot, but parliamentary government.
The bill is admirably clear on another matter. To “shield” the province from a federal law requires more than passive inaction on the provincial government’s part. It is not enough for the cabinet merely to refuse to enforce it. It must enforce its refusal on others – all those “provincial entities.” It’s a long list: Crown corporations, regional health authorities, universities, school boards, municipalities, police, on and on.
All are supposed to be at arm’s length from the province; all would generally be inclined, given their responsibility for applying the law, to obey it as well. Only now they would be subject to a provincial law ordering them to disobey a federal law. If they refused to do so – and their lawyers could hardly advise them otherwise – the entertaining prospect arises of the provincial government hauling them into court on a charge of obeying the law.
In case there is any doubt on this point, the best guide is as always the government’s denials. The bill, it says, “will not allow Cabinet to give instructions to private individuals or corporations that aren’t provincial entities to violate federal law.” (Emphasis added.) Meaning it will allow such instructions to provincial entities. And if there were any doubt of the mayhem and confusion this is likely to unleash, the blanket indemnification against legal action for anything “done or omitted to be done” by anyone takes care of that.
This is how it always ends with populism. What begins as a call for “power to the people” inevitably devolves into “all power to the leader.” For once a threat has been identified to the people – once Us has been divided from Them – the leader must have maximum power to defend Us from Them. And yet the most likely effect of this breathtaking power grab is not to strengthen the province or its government, but to make it ungovernable: the province defying the feds, cities defying the province, the courts sidelined, the legislature neutered.
And for what? For all the rhetorical invocation of a marauding federal government bent on causing maximum harm to Alberta, it remains the highest-earning, lowest-taxed, most favoured province in the country. The instances of actual, as opposed to asserted, constitutional overreach on the part of the feds are few, as the courts have consistently ruled. The bill is a phony cure for an invented disease.
It’s constitutional madness, of course, as the courts will inevitably rule. Only then will we discover whether the government that advanced and defended the bill in such disingenuous terms was telling the truth about respecting the courts.