In June 1215 King John signed the Magna Carta, agreeing to terms that enshrined the principle that no one, not even a king, is above the law.
And now 807 years later Danielle Smith is prepared to turn her back on the rule of law and other fundamental democratic principles by enacting the Alberta Sovereignty Act (Act).*
The Act is described in the Free Alberta Strategy policy document as a law that gives the legislature the power to refuse to enforce any federal law or federal court ruling it deems to be a federal intrusion into an area of provincial jurisdiction.
In response to rising concerns about the Act Smith said it would not be used to “arbitrarily” strike down a federal law it doesn’t like.
No, it will be “used entirely through the lens of the law” (whatever that means) and serve as a “tool” to stop the feds from violating Alberta’s “sovereign powers” as set out in sections 92 to 95 of the Constitution (NOTE: section 93A only applies to Ontario, Nova Scotia and New Brunswick so how the feds could violate Alberta’s sovereignty by violating section 93A remains a mystery).
Smith fails to mention that the Constitution Act gives the feds the jurisdiction to pass laws over the matters itemized in section 91. And the courts have upheld this right even where such laws conflict with provincial policies (eg carbon tax).
She also fails to mention—and this is the critical part—that by granting the Alberta legislature the power to declare federal laws passed in accordance with section 91 inapplicable in Alberta, the Act is “fundamentally incompatible” with the rule of law, the separation of powers, and the constitutional division of powers between the feds and the provinces.*
The Rule of Law
King John learned the hard way that no one, be they king, queen, prime minister or premier can run around doing whatever they damn well please because, need we say it again: No one is above the law.
So when Smith promises to enact a law allowing Alberta to ignore federal laws and court rulings, she’s placing herself and her MLAs above the law.
Separation of Powers
The rule of law depends on the separation of powers among three branches of government: the legislative, executive, and judicial branches. Here’s a quick refresher of their respective roles:
- Legislative branch (all the MLAs): debates policy, makes new laws, manages the money
- Executive branch (the premier and his/her cabinet ministers): administers the laws with the help of the public service
- Judicial branch (courts): maintains the rule of law by interpreting the law to ensure everyone, including the government, is acting in accordance with it
One branch of government cannot carry out its role if it is hamstrung by another branch.
So when the Act elevates the legislative branch above the judicial branch by granting the legislative branch the power to exercise the courts’ role in determining the validity and applicability of federal laws it violates the separation of powers.
Constitutional Division of Powers
In a nutshell, the jurisdiction of the federal government and the provincial governments is set out in sections 91 (feds) and 92 and 92A (provinces) of the Constitution Act, 1867 and 1982.
The Supreme Court of Canada has held that neither order of government can cross into the other’s jurisdiction, but the feds may enact laws that impact provincial policies as long as such laws fall within federal jurisdiction.
There is nothing in the Constitution that gives Alberta the jurisdiction to pass a law that invalidates federal laws or renders them inapplicable in Alberta.*
It’s no surprise then that legal scholars have characterized the Act as “a damaging blow to the rule of law and the basic building blocks of democratic governance.”
The “double-dog dare”
In a recent leadership debate Smith said the Act is important because it gets us in a “sovereign frame of mind,” where Alberta would stop expecting Ottawa to build economic corridors for rail, power, broadband and pipelines. Instead Alberta would work with other provinces to run such corridors to Churchill, Thunder Bay, Tuktoyaktuk and Prince Rupert. And she “double-dog” dared Ottawa to take Alberta to court if it started building a pipeline with its FN partners.
Perhaps someone should point out to Smith that pipelines are usually built by corporations, not the government, and a corporation proposing a pipeline that crosses provincial boundaries would file permit applications with the federal regulators not the Alberta regulators because—need we say it again–interprovincial pipeline infrastructure falls under the fed’s jurisdiction under section 91 of the Constitution Act.
How will this end?
Smith is now on the defensive.
When the Lt-Gov Salma Lakhani was asked to comment on the Act she said she’d review the proposed legislation to ensure it did not violate the Constitution before signing it into law (btw: this is the Lt-Gov’s job).
Smith demanded a retraction.
Jason Kenney called the Act the “anarchy act” and said a conservative constitutional scholar called it “the Alberta suicide act.”
Smith accused Kenney of brazenly interfering with the selection of his successor.
The pressure is mounting and Smith has promised to provide further details of her key campaign promise after the Labour Day long weekend.
Can she walk it back from a hot mess to something that doesn’t undermine the fundamental principles of democratic governance?
Somehow I doubt it.
*With gratitude to law profs Martin Olszynski, Jonnette Watson Hamilton, and Shaun Fluker. Please read their excellent ABlawg blog post on this critically important issue.