What these constitutional law experts have to say about Alberta's proposed Sovereignty Act
Mark Gollom | CBC News | Posted: December 1, 2022 9:00 AM | Last Updated: December 8, 2022
Act says it would protect Albertans from federal legislation that's 'unconstitutional or harmful'
Alberta Premier Danielle Smith's controversial proposed legislation — the Alberta Sovereignty within a United Canada Act — was introduced Tuesday in the provincial legislature, and it immediately prompted accusations that it was undemocratic and constitutionally unsound.
The bill, if passed, would set to "protect Albertans from federal legislation or policies that are unconstitutional or harmful to our province, our people, or our economic prosperity."
The Alberta Legislature would be able to pass motions declaring that a particular existing or anticipated federal law or policy is unconstitutional or "otherwise harmful to Albertans."
And it would also allow cabinet to direct "provincial entities" — Crown-controlled organizations, municipalities, school boards, post-secondary schools, municipal police forces, regional health authorities and any social agency receiving provincial money — to not use those funds to enforce federal rules deemed harmful to Alberta's interests.
However the proposed act states it will not allow Alberta to defy Canada's constitution.
The act has raised significant constitutional questions. CBC News contacted experts in constitutional law to get their take on Smith's proposed legislation. Former Supreme Court of Canada justice Jack Major, from Alberta, sees nothing particularly wrong with the proposed act. But some other law professors believe the proposed law is constitutionally vulnerable, imbues too much executive power, and contravenes the separation of federal and provincial powers.
WATCH | Danielle Smith tables proposed Sovereignty Act:
Jack Major, former Supreme Court justice:
Major, an Alberta resident who was on the Supreme Court of Canada from 1992 to 2005, said his first impression of the proposed act is that it's "really not that radical", if the ultimate arbiter will be the Supreme Court of Canada.
The province, with this proposed act, is carving out a position that if the federal government introduces something adverse to Alberta without consulting Alberta the province won't implement it, he said.
For example, he said if the federal government imposes something like the carbon tax, and Alberta opposes, at present it would be up to the province to begin court proceedings. Under the Sovereignty Act, he said, the onus is reversed and the federal government would have to bring the matter before the court.
"I don't find that particularly alarming," he said. "What's so terrible about the province saying if you want to impose on us, you better be sure you're doing it constitutionally."
Major suggested he wasn't concerned about the line in the proposed act that allows a motion to pass against federal legislation that's deemed "otherwise harmful to Albertans."
He said that phrase would have "no meaning" after the issue has been decided by the Supreme Court.
"The validity of federal legislation, if it's harmful in the opinion of Albertans is not going to be implemented until the court says it's constitutional."
Eric Adams, University of Alberta:
No province has ever tested whether the constitutional authority exists for a legislature to order entities within the province — which would include police forces, cities and towns, provincial public agencies — not to comply with federal laws, Adams said.
Provinces can only do that if the Constitution says it has the jurisdiction to refuse or to order the disobeyance of valid federal laws, he said.
"And there's at least a strong argument, in my view, that because of the way the division of powers works, if [the province] is ordering an entity not to comply with a particular federal law that is invalid as an interference with the federal jurisdiction over that particular area."
Adams suggested there would be a stronger argument for a province to refuse to enforce unconstitutional federal legislation.
"But [Alberta] didn't do that. They said, you know, there's this much broader, expansive definition of harmful laws. Well, harmful is in the eye of the beholder. And in a partisan world, anything is harmful that ... you think goes against your policy perspectives"
Adams said the federal government could enact a Criminal Code provision and Alberta could decide it didn't like it, and direct entities including the police force not to follow the law.
He acknowledged that there are times when a provincial or municipal jurisdiction have set priorities and refocused resources which may, in practice, ignore existing laws. For example, in the 1970s, Quebec stopped prosecuting Henry Morgentaler for what was, at the time, performing illegal abortions. The Vancouver police force has also said at times it would stop charging for possession of marijuana.
While those type of actions, or inactions, may come close to not following federal law, Adams said he believes they are still acceptable uses of provincial jurisdiction.
"Alberta says now we're going to go one much larger step forward and say, well, now we in fact, have the authority to order you not to do."
Adams said another area of concern is in the area of executive powers, and what's known as "Henry VIII clauses." That's the idea that one of these motions would trigger "seemingly ongoing power" of the provincial cabinet to bypass the legislative process and amend an unending number of provincial laws.
"That's extraordinary. That's unprecedented," he said. "That's certainly pushing the envelope on constitutional conceptions around the separation of powers."
David Schneiderman, University of Toronto:
Schneiderman, a law professor at the University of Toronto, said he was immediately struck by how undemocratic the proposed law is because, as argued by Adams, it confers on cabinet the right to repeal or amend existing laws which ordinarily would have to go through the Alberta legislature
"So it seems to me that it's certainly beyond their authority to modify federal law. If it's Alberta law, then they're bypassing the Alberta legislature. So this is the first thing that alarmed me was the further concentration of power in the executive branch."
He said he was also concerned that the proposed law would make the Alberta legislature the judge and jury about the constitutionality of federal law.
A province may have a legitimate constitutional beef with the federal government, but that goes to an impartial third-party decision maker — the courts, he said.
"If they have a problem with courts and they think they're biased, then they should speak to that problem. They shouldn't then be entitled to take measures to in to somehow impede the application and enforcement of federal law to the extent that there are provincial government entities enforcing it."
Schneiderman said these proposed actions are reminiscent of what southern U.S. states tried to do after Brown v. Board of Education, when the U.S. Supreme Court ordered desegregation of public schools.
"Southern states talked about interposition and blocking the enforcement of federal law," he said.
Schneiderman added that Albertans are not just Alberta citizens, but also federal citizens.
"The federal law is made on behalf of and in the name of Albertans, not just Albertans, but all Canadians," he said. "They're undoing the law of Albertans and of all Canadians.… And this is a particular constitutional problem."
Geoffrey Sigalet, University of B.C.:
Sigalet, the director of UBC's Centre for Constitutional Law and Legal Studies, said he had expected the proposed law would be more constitutionally controversial and attempt to nullify laws that have been deemed valid by the courts.
"If they had done that, that would be extremely constitutionally questionable," he said. "From reading this act, this law does not do that. It does not try to nullify federal laws."
"In its meat ... it doesn't empower any provincial officials to disobey judicial decisions."
Instead, it enables the province, via these motions, to set conditions or not cooperate with the federal government in relation to certain federal law the province deems unconstitutional, Sigalet said.
"And that's totally constitutional."
"[The province] didn't say that they're the final arbiter. They didn't say courts have nothing over this. They didn't say you can disobey a judge. It's not saying we're not going to listen to you courts and we're not going to listen to the federal government," he said. "It's saying the federal government has its jurisdiction and we have ours."
WATCH | Trudeau 'not looking for a fight' with Alberta over Sovereignty Act :
Carissima Mathen, University of Ottawa:
Mathen, a professor of law at the University of Ottawa, said on its face, the proposed law as a whole seems "constitutionally very vulnerable" but that the biggest outlier is the section in which the government deemed a federal law to be "harmful to Albertans."
"There is manifestly no basis under the Constitution for a province to try and nullify the effect of a federal law because it thinks, in its opinion, it is causing harm to those people in the province who I should point out, are also citizens of Canada."
As well, Mathen stressed that if there are different parts of the country that are not obeying the federal law in the same way, then there's a breakdown in the legal order.
"Because then it means, what, you're not going to enforce the criminal law in one province versus another?"