The "Free Alberta Strategy Group" - Silly or Seditious?

Yesterday, a group calling itself the "Free Alberta Strategy Group" called on the Premier of Alberta to make Alberta a "Sovereign Jurisdiction Within Canada".  Its founders include former MLA Rob Anderson, and the site indicates that it has been endorsed by four current UCP MLAs. Apparently, the current Speaker of the House also attended the press conference - a move drawing criticism on the basis that it violated the neutrality required of the position.

I won't link the FASG's site, because I don't want to support their legitimacy through SEO algorithms. Google it if you want.

But because of its significant links to sitting legislators, it's not something that can be easily dismissed as a wingnut internet manifesto.

The FASG raises the same old Western grievances about a hostile Federal government and unfair equalization formula, claiming that Ottawa has "fundamentally breached its constitutional agreement with Alberta", giving Alberta the right to "repudiate this arrangement". (At least two of the central authors of this document are lawyers, which makes it weird that they're misusing the terminology of 'fundamental breach' and 'repudiation' in this way, but that's one of the lesser problems with the FASG's analysis here.)

I won't hash out the objections in detail, but there's more inflammatory rhetoric than argument, and the 'fairness' based argument is basically along the lines of "We've contributed a lot to confederation since 1961, but look at our 2020 deficit!"

The focus of this post, rather, is on their proposed 'solutions' to the perceived problems, through the Province unilaterally expanding its own jurisdiction and obstructing the Federal government's ability to enforce its own laws in Alberta.

The planks of its plan are as follows:

1. The Alberta Sovereignty Act, which would purport to give Alberta the power to override any Federal law or regulation within Alberta.
2. Establishing a Provincial Police Force to "ensure the Province controls all aspects of law enforcement against the person".
3. The "Independent Banking Act", which would allow Alberta to "shield Alberta businesses and individuals from the financial enforcement of federal laws, regulations, and judgments deemed unenforceable in Alberta" provided that those individuals and businesses use Provincially regulated financial services.
4. Equalization Termination and Tax Collection Act: Basically, create its own tax authority to oversee tax collection and remittances, have public sector employees remit directly to that authority instead of CRA, give private employers the option of remitting to that authority instead of CRA, and then pay enough of the Federal tax portion of those funds to Alberta to offset the collection of any equalization/transfer payments.
5. Alberta Pension Plan and Alberta Unemployment Insurance: Basically, replacing the Federal programs with a Provincial equivalent in order to avoid those funds going into Federal coffers.
6. Alberta Judicial Independence Act: Creating a new Provincial Tax Court, making all future judicial appointments Provincially, and refusing to employ new Federally appointed judges.
7. Independent International Relations and Trade: Directly negotiating bilateral trade agreements with other provinces, states, and countries, and demanding a seat at the table in Canadian international trade negotiations upon threat of refusing to recognize the validity of the agreement within Alberta.

They acknowledge that the proposals will create a "constitutional crisis", and that the "political establishment, the mainstream media, and federally appointed courts, will declare most of the Strategy's proposals illegal and unconstitutional."

There's a reason for that. They are.

Proposals numbered 1, 4, 5, 6, and 7 directly involve proposals that exceed the powers allocated to the Province within the constitution.  (Proposal number 3 also steps on a landmine in terms of calling it banking legislation, when banking is one of the Federal government's s.91 heads of powers.)

Ironically, the most terrifying of them all is the one that is ostensibly constitutional, because of its place in the broader plan. But I'll get to that.

The plan, on the whole, amounts to a manifesto for a coup, premised on the idea that it can obstruct the Federal government's ability to enforce validly-enacted Federal laws by controlling all enforcement within the Province: Sure, we're breaking all sorts of constitutionally valid laws, but what are you going to do about it?

Practically speaking, a law, regulation or court decision is operative only when it is enforceable within the jurisdiction it purports to exercise authority over. The governing body that controls enforcement, therefore, effectively controls what the law actually is for all intents and purposes.

But what's most alarming is the presumptive mechanisms by which they would secure that control over enforcement, by directing law enforcement personnel to enforce constitutionally invalid laws and not to enforce constitutionally valid ones.

The Ordinary Course: What Our Institutions Would Do With Such A Plan

We have a strong constitutional order with mechanisms for enforcing constitutional constraints on legislative power. The Federal government isn't reliant on Provincial permission to enforce laws within Alberta's borders; the laws validly enacted by the Federal government pursuant to its constitutional authority are binding law in Alberta, and there's nothing that Alberta's legislature can do about that. There is no legal mechanism for the Province to override Federal legislation.

This is Federalism in a nutshell: The Province has some powers; the Feds have others.

So if the Province tried to enact the laws proposed in this plan, the courts would straightforwardly come to the conclusion that they are "ultra vires" - outside the legislative authority of the Provincial government. The whole house of cards pretty much falls apart with the invalidity of the "Sovereignty Act".

Directing credit unions NOT to comply with legitimate Federal enforcement actions against assets would be illegal and outside the Province's regulatory authority: The Federal government's power to enforce the Income Tax Act, for example, doesn't derive from its regulatory authority over banks, and its garnishment powers can and do extend to credit unions. So if the Province were to prohibit credit unions from complying with legitimate garnishment actions under the ITA, that prohibition would almost certainly be ultra vires the Province, and the credit union could not be convicted of an offence for refusing to comply with that prohibition.

If the Province, at the executive level, were to simply direct Provincial employees not to enforce certain laws, that gets into a more complex scenario, but ultimately there is judicial recourse for such directions as well.

Their judicial appointments, too, would be without real legal authority. Simply put, unless Superior Court judges are appointed pursuant to Part VII of the Constitution Act, 1867, they aren't really Superior Court judges. So, in practice, you'd get challenges to such Provincial appointments (similar to the challenge to Marc Nadon's appointment to the SCC), which would be successful. If the Province refused to seat duly appointed justices, you'd see court applications to compel the Province to do so, which would succeed. Ultimately, attempting to seat improperly appointed judges on the Court of Queen's Bench, or refusing to seat a properly appointed judge, would quickly run into an institutional wall.

A Government Unfettered by Law

The silliness of thinking that an Alberta government could just declare itself sovereign and ignore constitutional constraints is outweighed only by alarm at the fact that they appear to have thought these issues through and come up with dictatorial solutions to circumvent the Rule of Law.

There appears to be an underlying assumption that the courts will go along with the plan, because Alberta's existing courts are deferential to government, and if future judges are Provincially appointed they'll do what the Province wants.

The first half of that assumption, at least, is probably wrong: While there's credible reason to think that Alberta's judiciary has a bit more political gamesmanship than most Provinces, they're not political hacks who will rubber-stamp obviously-unconstitutional legislation. I am highly doubtful that they would 'go along' with this plan.

But let's suppose for a moment that I'm wrong about that, or that the Provincial Sovereigntists would so quickly populate the courts with ideological allies that they'd be able to press their agenda through there without having the statutes struck down: The entire premise here appears to be that we would not have an independent judiciary, and instead would have a judiciary that is subordinate to the whims of the Alberta Sovereigntist government.

That's incredibly worrying. An independent judiciary is one of the central planks to Rule of Law. A stacked judiciary to support plainly unconstitutional legislation is a VERY short step from a range of other corrupt and antidemocratic practices.

And while there's nothing strictly improper about a Provincial Police service, the idea that it gives Provincial politicians effective control over what Federal laws get enforced...is new and disturbing. The OPP is contracted by rural communities in Ontario to provide local policing services, in a manner akin to the RCMP's function in Alberta. Those local policing services include enforcement of certain duly-enacted Provincial laws, as well as a range of Federal laws. They are bound by both Provincial and Federal law, and required to comply with the constitution and orders of courts of competent jurisdiction.

The FASG vision of a Provincial Police service, by contrast, appears to be a body that will take its marching orders from Alberta's political leadership and ONLY from Alberta's political leadership - enforcing the Sovereigntist government's unconstitutional legislation and refusing to enforce duly-enacted Federal legislation.

That's not so much a law enforcement agency as it is a political paramilitary arm, more akin to the Brownshirts than the OPP.

These alarm bells about breaking down our democratic institutions aren't broadly hypothetical: The breakdown of our politically independent institutions is an essential precondition of the success of the FASG's plan.

Sovereign Alberta, under the FASG model, would be a banana republic.

Missing Links: Why The Plan Wouldn't Work Anyways

Despite flouting the constitution in many respects, and despite the overall "too clever by half" spirit of the plan, it still doesn't actually close off Federal enforcement mechanisms.

The Feds Retain Law Enforcement Power

Firstly, while the RCMP are contracted by the Province to provide local policing services, that's not the source of their policing authority or mandate. That source is found in the Federal Royal Canadian Mounted Police Act. Even in Provinces with their own Provincial Police services, the RCMP maintain a presence for specific types of enforcement activities, and they're entitled to do so.

In other words, nothing about creating a Provincial Police service means getting rid of the RCMP. If I go home to Ontario, and punch my wife's cousin who is an RCMP officer stationed there, he has all the powers of any other police officer to arrest and charge me for doing so.

Similarly, protecting the southern border, and customs and trade enforcement, is entirely a Federal activity. That's not something that a Provincial police service would supplant.

Likewise, the Federal government empowers regulatory enforcement officers - for instance, for environmental regulation purposes. None of the proposed measures would even plausibly prevent a Federally-empowered enforcement officer from showing up to inspect or regulate a project within the Federal governments jurisdiction, or from laying charges or making arrests in accordance with their powers.

Fundamentally, the Province has no authority to tell Federal enforcement officers not to carry out their lawful duties in Alberta, and attempting to prevent such enforcement could only conceivably take the form of directing its own Brownshirts - in violation of law - to violently prevent those Federal officers from doing so.

The Feds Retain Debt Collection Powers

As for financial enforcement, the Federal government has powers of asset seizure: Even if the Province could get credit unions to play along, that doesn't prevent the CRA from directly enforcing against the assets of a tax debtor, or for laying charges against a tax debtor for offences.

Not to mention that, even if Alberta could claim the powers the plan suggests (which it can't), those powers would stop at the border. Imagine being a Provincial public servant, having the Provincial government withhold ALL your Provincial and Federal taxes, but NOT remit those taxes to the CRA on your behalf:  As far as the CRA is concerned, you're still on the hook for that money. So CRA agents will seize your assets, accounts, vehicles, sell your house, etc., even though you paid your taxes to the Province. Even if you could shield your assets within Alberta (which you can't), you'll be perpetually unable to have any property interests outside of the Province, unable to do business outside of the Province, etc., without paying those taxes.

That's a problem for the public servants; it's also a problem for the actual Provincial public sector employer, who would be withholding funds on account of Federal taxes but failing to remit to the actual tax creditor as required by Federal statute. This likely puts the individuals administering that program into very serious legal jeopardy.

For those reasons and more, no private sector employer would ever opt into paying the Provincial tax authority: The legal jeopardy for the employer and employees would be severe, and in any event the Federal government would have an enforceable claim against those businesses: Again, even if the Province could insulate the assets of those businesses within the Province, any extra-Provincial operations or business would still be exposed. Are you selling products to an Ontario client? CRA will tell the Ontario client "Pay us instead", and they're legally obligated to do so, and entitled to treat their debt to you as satisfied by that.

So the business and its employees, despite paying their full tax burden to the Provincial authority, would still be left facing potential garnishment action by CRA for amounts that the Provincial authority failed to remit.

Bottom line: You can't expect people to simply ignore validly-enacted Federal legislation and count on the Feds not exercising the tools at their disposal to address that.

Federal Courts Are...Still There

Weirdly, despite a tangential tirade on why the authors of the plan think the Supreme Court of Canada is conflicted, unprincipled, and anti-Albertan, no part of the plan proposes or attempts to circumvent its appellate jurisdiction from Albertan courts. So even if Alberta's judiciary was effectively put under the thumb of the legislative branch, its findings and decisions would still be subject to appellate review in Ottawa.

Same with the Federal Court of Canada and the Tax Court of Canada. An attempt to create parallel political kangaroo courts to replace them doesn't actually get rid of them, any more than an Alberta Provincial Police service would displace the RCMP's law enforcement authority in Alberta.

Conclusion

The concept, on the whole, is inane and ineffective. There are no mechanisms by which the Province could comprehensively thwart Federal jurisdiction, and no realistic chance of the legislation underlying this plan ever passing constitutional muster.

If there were, however, the result wouldn't be a "Free" Alberta, but an Alberta leadership operating unconstrained by any legal or constitutional fetters, accountable to nothing and nobody.