Danielle Smith didn't give us a watered-down version of Alberta's Sovereignty Act

This column is an opinion by Eric M. Adams, a University of Alberta law professor and expert in constitutional law. For more information about CBC's Opinion section, please see the FAQ.

Ending months of anticipation, speculation, and consternation, the Alberta Sovereignty within a United Canada Act, the centrepiece in Premier Danielle Smith's attention-grabbing leadership campaign for the United Conservative Party, is now a bill before the Alberta Legislature and on the road to becoming law. 

Buckle up for the constitutional battles to come.

Like any blockbuster, many of the bill's main and controversial plot lines had already been glimpsed in advance. But there are also surprising twists and turns we did not foresee. 

The bill purports, as advertised, to "protect Albertans from federal legislation or policies that are unconstitutional or harmful to our province, our people, or our economic prosperity." It does so by enabling the Alberta Legislature to pass motions declaring that a particular existing or anticipated federal law or policy is unconstitutional or "otherwise harmful to Albertans."   

What qualifies as harmful is clearly a subjective matter of perspective, but legislatures can take whatever view they wish of the wisdom or folly of the actions and laws of other levels of government. 

There is nothing unconstitutional about announcing a provincial distaste or approval for the particular laws or policies of the federal government. 

But wait, there's more

But Premier Smith promised her supporters more than words. Accordingly, the act takes a large and unprecedented step in what will occur after the legislature passes such a motion. 

While the act clarifies that the province cannot compel individual citizens to disobey federal law, it nonetheless seeks to imbue the provincial cabinet with extraordinary and novel powers. 

Among those powers is the cabinet's ability to direct a wide array of institutions and organizations within the province — police forces, cities and towns, hospitals, provincial public agencies, school boards, colleges and universities — to refuse to enforce, and perhaps to actively resist, the application of valid federal law. That includes provisions of the Criminal Code of Canada.

The act also suggests that once a motion is passed, the cabinet may bypass the legislative process entirely to temporarily amend — for years at a time it would seem — any other provincial law, presumably to further provide measures to resist the application of federal law. 

Such executive powers, widely derided as "Henry VIII clauses" for their disdain for democratic principles, might be justified in narrow circumstances where expediency or other limits justify the end-run around the legislative process. But they are impossible to justify in the context of the perpetual federalism squabbles envisioned by the act.  

A dramatic act

Some justifiably wondered if the critics of previous sovereignty proposals, including those within the UCP caucus, might have watered down Premier Smith's ambition to remake the settled understandings of how federalism operates in Canada. Would the premier accept the longstanding view that the laws of the provincial and federal levels are to be mutually respected and complied with by government and citizen alike, unless and until an independent court of law says otherwise? 

That is not what happened.

Although the bill abandons a blatantly unconstitutional earlier idea that the province could ignore the orders of courts it disagreed with, it still fundamentally upends a number of stabilizing principles in our Canadian constitutional order — ironically under the guise of enhancing national unity.

Our constitutional system wisely places the exclusive responsibility of issuing remedies for unconstitutional laws in the hands of independent courts.

Courts serve Canadians well in adjudicating the complicated interweave of jurisdictional powers that define the relationships between provinces and Parliament. They are beholden to constitutional law and a process that requires reviewing evidence dispassionately, listening to all sides, and following the precedent of previous cases. 

Sometimes provincial governments are right that a particular federal law or policy is unconstitutional, but history shows that sometimes they are wrong. 

To abandon that exclusive role for courts, to accept an opt-in and opt-out vision of federalism marked by expanding and unaccountable exercises of executive power, and to resign ourselves to perpetual federal-provincial conflicts, is to embrace a dysfunctional federalism riven by court cases, mutual accusations of bad faith, and political and economic inefficiency and instability. 

Smith's next acts matter

It is difficult to predict how the Alberta government may use the powers under the act. 

It seems likely that motions may seek to declare aspects of federal gun regulation unconstitutional, or to challenge the operation of environmental regulations of various kinds. The province may shelter such actions under the premise that it is simply refusing to contribute provincial resources to federal policies it objects to. 

The heart of the matter will be what further steps the province has in mind to resist or counter the normal operation of federal law. So although the act tells us something about the federalism fights to come, the precise details will matter when the courts weigh in.   

Although there are efforts in the bill to reduce the ability of citizens to challenge the particular executive actions taken under the act, an overall constitutional challenge to the act appears almost inevitable. 

The new vision of federalism, the separation of powers, executive reach, and the rule of law that the bill promises will be front and centre in that case. Whether a court is prepared to endorse the new constitutional arrangements that follow in its wake remains to be seen.

The Alberta Sovereignty within a United Canada Act may provide temporary satisfaction for those eager for a blockbuster special-effects spectacle intended to jolt strained federal relationships.

But what if we skipped this disappointing movie and instead focused on the challenging task of communicating across our differences in order to solve the real problems before us? That's a holiday film I would gladly watch.

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