Give University of Calgary political scientist Barry Cooper credit for honesty, or at least frankness. He wants Alberta’s next premier to do something that every lawyer and political scientist can see is plainly illegal. But don’t take our word for it: Among those happy to acknowledge the unconstitutionality of Mr. Cooper’s proposals is Mr. Cooper. As he put it in an op-ed earlier this summer, the unconstitutionality “is the whole point.”
The good professor’s star pupil is Danielle Smith, presumed front-runner in the race to replace Jason Kenney as leader of the United Conservative Party and premier of Alberta. Canada being a confederation of provinces united by a state of grievance, there is usually political mileage to be wrung out of harnessing resentments. Mr. Cooper’s plan for doing that, penned last year with two other authors, is called the “Free Alberta Strategy.” Ms. Smith has taken the plan and is running with it, and on it.
She’s spent the past few months promising to pass something called the Alberta Sovereignty Act, which would be legislation executing the “Free Alberta” plan. It would assert that the provincial government has the power to ignore or override federal laws and court rulings.
To be clear, with the exception of the notwithstanding clause, which only applies to some parts of the Charter of Rights and not to the entire Constitution, no provincial legislature has any such power.
Ever heard of the crank “sovereign citizen” movement in the United States? Its adherents believe themselves under no obligation to obey laws they don’t like. The Alberta Sovereignty Act is that, writ large. It’s a dumb and dangerous American recipe for chaos and lawlessness. People who ought to know better want to import it into the land of peace, order and good government.
Ms. Smith’s scheme may play well with some UCP members, but it has drawn widespread criticism from most other quarters. Last week, in an unprecedented move, Alberta Lieutenant-Governor Salma Lakhani said if a bill along these lines were passed by the legislature, she might reserve royal assent. In plain English, she could decline to sign it into law.
The last time Alberta’s viceregal representative did something like that was in 1937. Lieutenant-Governor John Bowen refused to sign two bills that would have put the province’s banks under the control of the provincial government, and also the Accurate News and Information Act, which would have forced newspapers to hand over the names of journalistic sources and to print government rebuttals to any articles the provincial government didn’t like. The reserved legislation was referred to the Supreme Court, which of course found it unconstitutional.
A Queen’s representative refusing to sign legislation, because that legislation is obviously illegal, would trigger a constitutional crisis. It’s why two other top candidates for the UCP leadership, Brian Jean and Travis Toews, have gone after Ms. Smith’s plan. So has New Democratic Party Leader Rachel Notley. So has outgoing Premier Jason Kenney.
At a news conference on Tuesday, the soon to be ex-Premier said that, “a government that pretends it can, at will, set aside any court decision, ignore the Constitution, is deciding to deliberately undermine the rule of law.” He described it as “banana republic,” “contrary to conservative principles,” “a cockamamie idea that is, according to its own authors, a step toward separation,” and the “No More Pipelines Act.”
Why that last epithet? “Wait until B.C. gets the idea that they can play the same game to block our pipelines,” said Mr. Kenney. The federal regulatory power and a Supreme Court ruling forced B.C. to accept the Trans Mountain pipeline expansion – but if the Constitution doesn’t apply to Alberta, then it doesn’t apply to British Columbia, either.
Ms. Smith may be a rival whom Mr. Kenney has no desire to see in power; it doesn’t change the fact that his criticisms are entirely on the mark.
The Alberta First movement (that’s also Ms. Smith’s campaign slogan) believes that Alberta should emulate Quebec, and in particular Quebec separatists. But Quebec separatists don’t behave like this. René Lévesque never declared that the province was free to ignore the Constitution; on the contrary he fought (and lost) a referendum on the question of changing the Constitution, and he and his successors respected decisions, from voters and the courts, that went against them.
Do Albertans really want a rerun of 1937?
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