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| Heather MacIvor |
On Sept. 6, in a web post explaining her promised Alberta Sovereignty Act (Sovereignty Act), Smith had set out the scheme of the proposed legislation. The notion that the provincial government could simply ignore adverse court rulings was the linchpin of Smith’s pledge to “affirm the authority of the provincial Legislature to refuse provincial enforcement of specific Federal laws or policies that violate the jurisdictional rights of Alberta under Sections 92-95 of the Constitution or that breaches [sic] the Charter Rights of Albertans.”
Under the Sept. 6 proposal, if the Alberta Government decided that a federal law or policy “violate[d] provincial rights and Albertans’ Charter freedoms,” it could “introduce a Special Motion for a free vote of all MLAs in the Legislature.” The motion would set out the alleged constitutional violation, the resulting harms imposed on “the citizens of Alberta,” and a “detailed description of the specific actions the Province and its agencies will take to refuse or otherwise oppose the enforcement of that specified Federal law or policy within Alberta.” It would also include a declaration that “notwithstanding the specific Federal law or policy in question, it shall not be enforced by the Provincial Government within Alberta in the manner outlined by the Special Motion.” If a majority of MLAs voted for the special motion, it would remain in force for up to 24 months unless a court stayed it or declared it partially or wholly unconstitutional. In the latter case, the special motion would remain in force for up to 90 days, after which it would return to the legislature for a vote on its amendment, repeal or continuation.
This is pseudo-constitutional nonsense. Or rather, it depicts a parallel constitutional universe where provinces possess “rights,” the people who live in Alberta are citizens of a province rather than a sovereign state, and provincial governments and agencies are only bound by those federal laws and court rulings with which they happen to agree.
The scheme set out on Sept. 6 purports to shift the power to determine the constitutionality of federal laws from the courts to the cabinet and legislature. If it were actually attempted, such a transfer of authority would violate the separation of powers, a constitutional principle as fundamental as the rule of law. The supremacy clause in s. 52(1) of the Constitution Act, 1982 states that “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” The supremacy clause does not explicitly assign remedial powers to the courts, because there was no need to do so: judicial review is part of Canada’s “constitutional architecture” (Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21). It is for the judicial branch, not ministers or legislators, to police the limits of executive and legislative jurisdiction and grant remedies for unconstitutional laws. No one may act as a judge in their own cause, not even the premier of Alberta.
The Sept. 6 scheme would also conflict with s. 96 of the Constitution Act, 1867, which protects the inherent jurisdiction of the Superior Courts — including the power to “review … the legality and constitutional validity of laws.” (Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27 at para. 68) A law that empowered the cabinet and MLAs to declare a federal law invalid or inoperable in Alberta on constitutional grounds would “strike at the very essence of the superior courts” (at para. 70). Such transfers of judicial power are impermissible.
Finally, the proposed Act is incompatible with the Charter. It would deprive the federal government of the opportunity to justify statutory limits on rights or freedoms, as required by the limitation clause (s. 1). Section 24(1) of the Charter provides that anyone whose guaranteed rights or freedoms have been violated “may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” No such enforcement power is vested in the executive or legislative branches.
It’s bad enough when politicians make impossible promises about fiscal policy and national prosperity. (See: British Prime Minister Liz Truss.) It is even more damaging, in the long run, when they mislead their supporters about the basic structure of the constitution under which they live — when, in effect, they create a parallel constitutional universe in which their adherents would prefer to live. (See: former U.S. President Donald Trump.) The proposed Sovereignty Act is so flagrantly inconsistent with the Canadian constitution that it can only be the product of ignorance and delusion, or a cynical ploy to exploit public frustration. The timing of Smith’s concession about the Supreme Court implies the latter.
Convincing voters that the constitution (or economics, or medical science) is something other than it really is, and encouraging them to adopt “alternative facts,” is dangerous and irresponsible. Political fairy tales have real-world consequences (see: Brexit). Politicians who genuinely respect their supporters tell them the truth. And they do so before the ballots are cast.
Heather MacIvor is a content development associate at LexisNexis Canada. She has worked on numerous Halsbury’s Laws of Canada titles, including Administrative Law, Constitutional Law (Division of Powers), Crown, and Judges and Courts.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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