Susan on the Soapbox

We’ve been so focused on the unconstitutionality of Danielle Smith’s central campaign promise, the passage of the Alberta Sovereignty Act (ASA), that we’ve forgotten that the ASA is part of the Free Alberta Strategy’s grand plan to renegotiate our place in Confederation—to “free” Alberta from “intolerable” abuse at the hands of the federal government—failing which we walk.

Let me repeat that: WE WALK.

Smith appears to have embraced the Free Alberta Strategy (FAS) without reservation. The fact that she hasn’t addressed what the FAS describes as “The Final Resort: National Independence” boggles the mind.

She’s running to be Alberta’s next premier. If she intends to follow the FAS to the bitter end, she should tell us.  

The FAS proposal

The FAS sets out a number of “reforms” that must be addressed to achieve provincial sovereignty, and if the feds fall short, then bonus! the FAS’s “reforms” will “better prepare Alberta for national political sovereignty.”

Why? Because we’ll have already done the legwork to consolidate most of Alberta’s “economic, environmental and resource governance, revenue collection, social services, law enforcement, and judicial powers,” while also expanding our provincially regulated financial institutions and intergovernmental affairs.

Sigh.

Here’s what the FAS proposes:*  

1. Enact the Alberta Sovereignty Act to give the Alberta government the right to ignore federal laws and federal court decisions. An act that is unconstitutional and upends the rule of law and the role of democratic institutions. Great start.    
2. Replace the RCMP with Alberta Provincial Police so the federal government and courts can’t enforce federal laws. But the APP isn’t enough so the ‘cut red tape, small government’ strategy proposes a bunch more legislation and government ministries.     
3. Enact the Alberta Independent Banking Act to create more provincially regulated financial institutions like the ATB and credit unions for the sole purpose of preventing the feds from enforcing federal laws, eg if the feds fine a garage owner for failing to collect and remit carbon taxes they won’t be able to garnishee the business’s bank account because he banks with the credit union. If you’re a corporation like Suncor and you don’t want to bank at a credit union you’re out of luck.    
4. Enact the Equalization Termination and Tax Collection Act to create the Alberta Revenue Agency to collect provincial taxes and the Alberta Public Services Employer to issue paycheques to Alberta public employees and remit federal withholding tax to the Alberta Revenue Agency which will decide how much to send Ottawa after it deducts what it believes it is owed. All this is founded on a fundamental misunderstanding of how equalization works.
5. Incent (pay) private companies to bank with ATB and credit unions so they too can remit their employee’s federal tax deductions to the Alberta Revenue Agency. This will magically protect a company from federal prosecution for failure to remit federal income tax because the fed’s beef would be with the Alberta Revenue Agency and the Alberta Public Service Employer. Right, good luck with that. Also, remember the last time your employer under-collected federal taxes. You got hit with a bigger tax bill than you expected and you still had to pay.
6. Opt out of federal transfer and other programs (like $10/day daycare) that influence areas of provincial jurisdiction. Demand “no strings attached” transfers or tax points. Hands up everyone who trusts the UCP to do this right.
7. Enact the Alberta Pension Plan and Alberta Unemployment Insurance because Alberta’s younger population has contributed more to the federal equivalents of these programs than it’s gotten back. Yep, it’s the I-don’t-have-kids-why-should-I have-to-pay-school-taxes argument.
8. Enact the Alberta Judicial Independence Act. The current judges and justices can keep their jobs but all future appointees to provincial court, Kings Bench and the Court of Appeal will be appointed by the Alberta government. This presupposes that all future judges will cast aside their legal training (and the common law) and issue decisions in favour of government policies. NOTE: When a government controls the courts, it’s tyranny.  
9. Be independent in international relations and trade and have the power to ignore international agreements signed by the feds, if Alberta thinks they harm its interests. I see, Canada can come to the international bargaining table and enter into agreements that binds all of Canada except Alberta. Yeah, that’s going to go over well.

If the Feds don’t cave

The FAS is clear. If Canada rejects Alberta’s terms, we walk.

The FAS will set up a panel for secession. The panel will present proposals on an Alberta Constitution, judicial/legal system (which will retain the rule of law—hah!), monetary policy/currency, social programing, border protection, and taxation. Albertans will have a “full year” to debate these proposals and then we’ll vote in a referendum: in or out.

If 60% vote to leave. We’re out.

We’ll become the Republic of Western Canada. According to the authors of the FAS, we can continue to call ourselves Canadians—Western Canadians if we wish, because Central and Easter Canadians don’t have exclusivity rights of Canada’s history, culture or name.

Let’s make this interesting

Danielle Smith is confident the ASA will be drafted through the lens of constitutional law and protect us from federal interference with no downside. The authors of the Free Alberta Strategy assure us Alberta will come out ahead if it adopts their proposals.

If they’re so convinced of the merits of their plan, they can put their money where their mouths are.

They can give Albertans their personal guarantee—a legally binding personal guarantee, not some political puffery—that protects us from economic harm.

Because we’re the ones who are at risk here.

*If none of this makes sense, it’s not you, it’s them.

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

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.

Oh?

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.