Danielle Smith and the Free Alberta Strategy

 In September, I posted a summary and critique of the "Free Alberta Strategy Group".

At the time, I thought it was simply a poorly-drafted manifesto for a totalitarian coup, as stupid as it is dangerous.

Since then, it hasn't gone away, but has quietly moved through conservative circles with town halls and other promotions - including an interview on Danielle Smith's podcast - but Smith's leadership campaign is giving it new life.

And upon further review, I've realized that it's not a joke. It's not as stupid as it is dangerous; it is, in fact, more dangerous.

There are holes in it you could drive a truck through - obvious holes that completely undermine its ability to accomplish its stated objectives. In other words, as written, it won't work, and many people look at that as a good enough reason not to take it seriously. It's so obviously unconstitutional that a common reaction by most reasonable people is to dismissively handwave it away.

Some people, like Dr. Jared Wesley, argue that the whole plan is just a performative way to stage a losing fight in the courts, to play the victim when the courts rule against it.

I have my doubts, for a few reasons. Firstly, Alberta conservatives have never needed to make up reasons to get beaten up in the courts. Secondly, and more importantly, they've all but admitted that it's unconstitutional, instead coming up with a complex and elaborate structure of self-help remedies to try to make its illegality not matter. They believe they can create the structure in a way that they can simply ignore what Canada's independent judiciary says about their proposals, and rely on their direct influence over new police and judges of their own appointment to give effect to them.

Why jump through all the hoops of trying to sell it as a unilateral self-help plan that doesn't need anyone else's signoff, if the expectation is that it's going to be defeated by institutions refusing to sign off on it? Why tacitly admit that it could never pass muster under well-established constitutional legal doctrines if you intend to cry foul when the courts actually apply those well-established doctrines?

No, the plan, as it is, isn't to get shot down by the courts. The measures in the FAS go way beyond the performative.

But the authors also recognize the major problems in the Strategy. They have to, because some of these problems are obvious to anyone with the most basic understanding of Canadian civics, and the drafters include two lawyers (one of whom used to be an MLA) and a political science professor.

(Edit: After drafting most of this post, Barry Cooper published an op-ed admitting that the plan is deliberately unconstitutional. He believes that this is justified because, in his view, the constitutional bargain has been 'fundamentally breached' and therefore that Alberta has the right and obligation to 'repudiate' it. These are legal terms of art, and suffice it to say he is not using them properly. But while he wants the plan to be understood as an effort to 'change' the constitution, I think readers need to understand that there's no actual proposal for reform through any mechanism: The goal is to effectively remove the Alberta government from operating under the constraints of the existing constitution, without replacing those constraints with anything else.)

Canada's Inherent Jurisdiction

The proposed "Alberta Sovereignty Act" would purport to allow the legislature to declare Federal statutes inoperative within Alberta.

The meaning of that is important. Federal statutes aren't usually directed at regulating the Provincial government in anything other than an incidental way; they're directed at people and businesses engaged in Federally-regulated activities. So if Alberta declares a Federal statute inoperative, what they're really declaring is "Albertans can ignore that."

All their other machinations aside, for that to be at all meaningful, they need to somehow stop Canada from enforcing Federal law.

A long-time Albertan might think of "Federal law enforcement", and think "RCMP" - primarily referring to the large presence the Mounties have throughout the Province due to local policing contracts. But that's really the tip of the iceberg. The Mounties have inherent law enforcement powers throughout Canada (including Provinces with their own Provincial Police), and they'd still maintain some presence, if a smaller one, as they do in Ontario and Quebec. More importantly, the Federal government has other peace officers with law enforcement powers, often with powers to conduct inspections/investigations, to make compliance orders, lay charges, levy fines, or even arrest offenders.

For the government of Alberta to effectively nullify a Federal statute, it isn't enough to refuse to assist with its enforcement, but they'd need to somehow prevent the Feds from exercising their own jurisdiction. Not just saying "We don't recognize your law", but saying "We're not going to allow you to impose that law here."

This is where the word 'sovereignty' becomes important to note: Refusing to enforce Federal law is one thing, but taking the position that the Federal government itself doesn't have the authority to enforce its own laws...is, bluntly, an assertion of territorial sovereignty.

To be 100% clear, the plan does not explain how they will do that. The omission is critical, because it's certainly a problem of which the authors are aware.

Through the courts? No. Zero chance they'll get a real court to respect their claim to territorial sovereignty. They know that.

Through persuasion and political pressure? Not likely. The entire plan is premised on it being a unilateral self-help strategy that doesn't need 'Ottawa's permission', so I don't think we can assume that an essential plank of the plan is an unlikely assumption that the Federal government will simply knuckle under to their demands. Again, if that were really the case, why bother with performative self-help shenanigans in the first place?

There's really only one way that the Free Alberta Strategy could plausibly intend to prevent the Feds from exercising their jurisdiction within Alberta: Force.

And the plan does include creating a tool that could be used in such a way. Remember in my original post when I described their proposed police service, ostensibly created to help implement the FAS without regard for what the 'law' said about it, as "more akin to the Brownshirts than the OPP"?

If Federal peace officers, working out of a Federal government office in Edmonton, decide to go conduct a site inspection of, say, TMX, to assess whether a contractor is complying with environmental requirements that the Alberta government has purported to nullify, they're not going to particularly care about the Alberta government's position on it. The only plausible way Alberta could prevent them from inspecting and enforcing the law is by sending armed Brownshirts to physically stop them, and/or arresting/detaining them.

You can see why, if that's the intention, it wouldn't make it into the published plan: Deliberately instigating an armed confrontation with Federal officers acting within the scope of their legitimate authority; arresting and detaining people for performing lawful acts; risking escalation into actual violence against Federal employees...it's pretty dark, a literal violent uprising.

And while the plan is expressly premised on not needing Federal permission, there are parts of the plan that contemplate escalation for lack of recognition, and that contemplate the possibility of violence - for which they would blame the Feds.

Reading this paragraph in its proper context, that the authors understand that what they're proposing to do is unconstitutional, and that the Federal government has inherent jurisdiction to enforce Federal law in Alberta, what they're really doing is characterizing lawful Federal law enforcement efforts as "the use of force [by a political tyranny] to bring Alberta back into line".

They're anticipating a confrontation between Federal officers and Provincial Brownshirts. Which is almost certain to be instigated by the latter: Without the Brownshirts actually intervening, all the Feds have to do to undermine 95% of the FAS is ignore it, and to charge and prosecute violators of Federal laws without regard for the ASA.

If this seems dark and dystopian, that's because it is. But remember what the plan is: To expressly and unilaterally seize control over all enforcement of all laws within the Province of Alberta. This is the only way that happens.

If Anderson, Cooper, From, or Smith have some alternative plan to prevent Federal peace officers from enforcing Federal laws in Alberta without effectively needing Ottawa to voluntarily acquiesce to the FAS, I'd love to hear it. But let's face it: There's a reason why this particular detail got omitted from the published Strategy.

This isn't the only serious shortcoming in the plan where their approach seems to make some awfully-rosy and obviously-wrong assumptions to justify central planks.

The assumption that they could meaningfully change the balance of cash flow to the Federal government through public sector payroll remittances and voluntary participation by the private sector is another. (I mean, there are a STACK of problems with foisting that on public sector employees, and private sector employers and employees would be nuts to get on board with the plan. But public sector remittances alone - even on Cooper's own math - are basically equivalent to Alberta's typical share of income tax they get through CRA remittances, without even considering other transfers. Again, they must know this. Likewise, Anderson and From, as lawyers, have to understand that expecting private business operators to undertake massive risks of voluntary non-compliance with Federal law, without any benefit other than [maybe] ideological gratification...is an implausibly tall order.)

Without that plank, the goals of the plan are entirely undermined...so again, you have to assume that (a) they don't actually intend the plan to succeed at all (which, as above, I doubt); (b) they're simply oblivious to the flaws in the plan (which, again, is unlikely); or (c) they contemplate further, less optimistic, measures that didn't actually make it into the published Strategy.

For Greater Clarity, Words Have Meaning

Law is often open to interpretation. To an extent.

This is something that drives a lot of the OPCA discourse: They see the courts interpreting statutes and documents in ways that may not be obvious to them, and they come to the conclusion that everything is open to interpretation in some unlimited subjective way. Sure, there's a court order preventing me from using the internet, but if I consistently refer to the internet as a tomato...well, the order doesn't say anything about tomatoes, does it?

The FASG authors flip-flop between arguing that the existing constitutional bargain is broken, and implying that the courts are simply applying it in a biased and misguided way. This equivocation masks how their grievances are really understood: when people come to the defence of the ASA, they frequently simply describe it as 'defending against Federal intrusions', as if it's an intent to give effect to the division of powers rather than derogate from it.

ABLawg just published a good commentary on, among other things, the 'separation of powers' issue raised there: Even if you disagree with, say, the SCC's decision in the Greenhouse Gas Reference on the scope of Federal power, allowing the legislature to usurp the role of the judiciary is a dangerous approach.

(I'm fundamentally in agreement with the argument being made by Olszynski et al., even if my concerns take a slightly different focal point: They note that "it is apparent that something more than mere non-enforcement by provincial agencies is being contemplated", but their argument establishes that the Province assuming authority to override Federal law is incompatible with various important features of our constitutional order; I share those concerns, broadly, but I choose to focus on the more immediately-practical question of how such authority would be assumed.)

So let's actually look at the constitution a little bit. Most - but not all - of what we're talking about here lies in sections 91 and 92 of the 1867 Constitution Act, which set out respective heads of powers. They're long lists, and I'm not going to go into depth on them here, but there are a few points to note:

• At the end of s.92, the Province gets residual power over matters of a "merely local or private Nature in the Province"; and at the beginning of s.91, the Feds get residual power over everything outside those powers allocated to the Province.
• Feds get jurisdiction over criminal law; Province gets administration of the courts.
• Most historical action on these provisions dealt with Federal jurisdiction over "trade and commerce" (T&C) and Provincial jurisdiction over "property and civil rights" (P&CR).

Beyond those lists, the Feds have two additional cards: Section 91 also creates powers in relation to "Peace, Order, and Good Government" - expressly beyond simply the express heads of powers - and there's also a power of "Disallowance": It's basically never used, but it's an override to Provincial legislation. (Essentially, it's the inverse of the ASA, a Federal power that allows it to invalidate Provincial legislation. It's basically never used, though.)

So what's created - and this is not controversial - is a 'Federal' structure with two tiers of power where certain powers are reserved to each tier, exclusively, provided that the Federal government can override the Province with disallowance. The Courts play referee in terms of the outer edges of the sets of powers.

At Confederation, the general expectation was that the country being created would have a strong Federal government with Provinces responsible for matters of local concern. Recall that this was not so long after the US Civil War, where the American original model of loosely-affiliated semi-autonomous states had...gone wrong.

The judicial interpretation of T&C and P&CR shifted, almost certainly, more power than originally intended into Provincial hands, limiting T&C to matters of interprovincial and international concern, and including in P&CR basically all other business activities except for industries specifically addressed in s.91.

Constitutional scholars argue about the scope of the POGG power, and I'll admit, if I were interpreting the constitution from scratch without being burdened by a century and a half of case law, I'd probably say that POGG shouldn't override s.92 powers, but I'd also come down with a much narrower interpretation of s.92 powers in the first place. The interpretation of 'trade and commerce' as being limited to cross-border trade and commerce is a much older controversy...and it's effectively settled, but if really want to open up the constitution to a de novo interpretive exercise because you don't think the courts have interpreted it properly up until now, that's a question you reopen too.

But while the specific powers reserved to each side may be arguable, the general structure is not open to any interpretation that allows the Province to override Federal authority (nor to be the arbiter of where Federal authority ends).

Other points that aren't arguable include, for example, that section 97 expressly puts judicial appointments into Federal authority. There's no interpretive magic that can get you around those express words. So when the FASG proposes to stop seating Federally appointed justices and appoint Provincially appointed ones instead...there's no good faith argument that this would be constitutionally effective that doesn't amount to "words don't have meaning at all".

(As an aside, the bluntness of s.97 should remove any illusion that the parallel structures the FAS creates would act generally in good faith - you can't seriously argue that the Province would put qualified good faith judges on the Queen's Bench who are still going to impartially and objectively apply the law. If you know your entire appointment is constitutionally illegitimate, you can't possibly assert in good faith that you have the proper authority to determine any question before you.)

Why It's Important to Understand This

Most of my peers and colleagues look at something like the FAS or proposed ASA, laugh at it because it's so obviously and outrageously constitutional, and move on.

And, you know, I'd probably do the same if this were just a group of unaffiliated nobodies releasing a manifesto: Lots of crazies out there, and you can't stress yourself over every one of them.

But these aren't unaffiliated nobodies. The authors are a political science professor, a lawyer, and a lawyer/former MLA who is deeply connected to the current UCP caucus. the FASG launch was widely-attended and endorsed by current MLAs in the current government.

The media, in the mean time, predominantly reports the concerns of people like Olszynski and Emmett McFarlane as 'some academics who think it's unconstitutional' - as if there's a debate.

In the context of the Dobbs decision, overturning Roe v. Wade, I've made an observation (in context of reproductive rights), that where a motivated and well-resourced group is seeking an objective, it's dangerous and naive to simply assume that there's no way that they can succeed. The same applies here.

Smith herself is a former MLA, former party leader, and at one time was regarded as the heir apparent to the Premier's seat. She's stayed relevant with her base with a podcast, and she's using the ASA and FAS to market a populist pitch designed to both appeal to separatists and harness anger toward the Federal Liberals that the UCP has spent years fomenting.

So the first thing that's critical to acknowledge is that Danielle Smith could become Premier. That's not implausible at this point. Early polls show her in second to Brian Jean, and the ASA/FAS is a tool that would work well to draw some of Jean's support to her. Columnist Don Braid made an argument that she could plausibly win this race.

If she wins the leadership (and, by extension, the Premier's seat), it's going to be on the backs of people who support the FAS, and with a strategy and campaign significantly guided by the authors of the FAS.

The second thing to highlight is that, if she wins, there is no good reason to assume she wouldn't at least try to make good on the ASA and FAS promises. She's not some moderate who is pitching empty promises to an extreme to try to win support. We're accustomed to treating politicians as spouting empty rhetoric and assuming that they wouldn't actually do the worst things they say. That's what we assumed with Trump - oh, no way he'd try to create a Muslim ban; that's just empty rhetoric. Surely, once he's elected, he'll tone down the crazy rhetoric and start governing like a responsible businessperson.

Yeah, nope.

When the Wildrose types tell us that they're going to do something crazy, we simply can't give them the benefit of the doubt and assume they won't.

There is, likewise, no good reason to assume that there is some stopping point for the FAS. The ASA, on its own, is harmless and laughably illegal. If that's the only thing the government did, the courts would strike it down, sovereigntists would whine, and the world would go on unchanged.

But given that the ASA is just one plank of the much larger FAS which actually seeks to create mechanisms to circumvent its own illegality, to thwart and undermine Federal law, and to be able to ignore what the courts might say about it, anyone who looks at the other planks of the ASA and says, "Oh, they wouldn't go that far" is, again, giving a benefit of the doubt to which Danielle Smith and her ilk are not entitled.

They might go that far.

And the assumption that they won't is nothing more than a justification for ignoring the plan while it's being implemented.

If Smith becomes Premier and pursues a successful approach to implement the FAS, there is likely to be one - and only one - free and fair Provincial general election prior to the Alberta government extracting itself from any constitutional and legal authority.

Important elements of the FAS will be time-consuming. Our institutions won't be destroyed overnight. Under current law, we're due for an election next year, but the UCP would be entitled to extend that by up to a year without violating the constitution.

This won't all be rolled out by 2024.

But by 2027-2029 - the time by which the constitution mandates the NEXT election must occur, it might have. And no, I don't expect they'll just say "No more elections"; even Putin doesn't do that. But again, it's hopelessly naive to assume that a government with the effective power to put their thumb on the electoral scale - as the FASG would give them - won't do so. (Again, saying the FAS will give them the power to rig the election is not a hyperbolic slippery slope argument: The plan expressly gives them control of ALL enforcement, without regard to constitutionality, so...who would stop them?)

Smith et al are telling us what they want to do to Albertan democracy and rule of law. If she wins the leadership, Albertans will have exactly one opportunity to say no.

Conclusion

The FAS, to reiterate, is a totalitarian manifesto. In order for it to work at all, it has to be implemented whole - with some additional elements, as noted above - or it will fall completely flat. But the fact that it really is that bad is no reason to assume that Smith et al won't try to make it a reality.

I would urge my peers not to simply dismiss this as an absurd gesture. This goes well beyond any proposed unconstitutional legislation we've seen before, actually planning significant portions of a coup.

I've said it before: Any support for the FASG should be regarded as immediately disqualifying for any democratically elected office.

Whether or not Smith becomes Premier is up to a relatively small portion of Albertans with UCP members, and it might be too optimistic to hope that they care enough about democracy to refuse to elect an FASG supporter. But whether she stays premier long enough to effect her coup...well, that's up to the rest of us.