Danielle Smith's Rebellion

 I've posted before about the Free Alberta Strategy, and again when Danielle Smith adopted parts of it into her platform.

In those posts, I made the argument that the FAS as written is ineffective, without additional implied steps that would allow the Provincial government to wield its proposed new 'police' in a way that backs their agenda, without regard for law, leading inexorably to an armed conflict between this paramilitary group and Federal law enforcement.

It's time for an update, because this is no longer implicit in Smith's plan, but quite explicit.

In the last week or so, Smith has backed Saskatchewan Premier Moe's allegations of Federal government employees 'trespassing' on private land to test water quality; she's indicated that the point of creating a Provincial police service is to be able to dictate which laws they enforce or not; she's said that the ASA will be used to block Federal law officers from enforcing Federal law; and she's specified that this is one of the purposes of the Alberta Provincial Police.

Why This Isn't Surprising

You'll recall that I made the observation earlier that the Federal government has the power to enforce its own laws: A plan to nullify Federal legislation, as the FAS and ASA seemed to, required something more than a mere refusal to enforce it. I suggested that there was only one mechanism that could plausibly accomplish that role - the proposed new provincial police service which, on my read of the plan, seemed to be expected to adhere to a view of the 'law' as promoted by their political masters, even if that differed from the courts.

Others argued - more charitably than I - that Smith talked more about simple enforcement refusal, seemingly in the sense of the Province declining to assist the Federal government. (The culmination of this argument is that the ASA becomes impotent posturing, because the Feds can still enforce their own laws.)

But with Smith's new revelations, my inferences are confirmed: The proposed provincial police service is, indeed, intended to be politically-controlled, not insulated from political whims as traditional police services are; and protecting Albertans against Federal regulators is part of that purpose.

How This Plays Out

Certain lawyers - such as Avnish Nanda and Martin Olszynski - have expressed that, if and when the ASA becomes law, they'll file a constitutional challenge the same day.

In the ordinary course, expect this kind of challenge to take years to work their way through the courts. Probably over a year just to get a hearing in Queen's Bench, and then, of course, appeals to the Alberta Court of Appeal and, plausibly, to the Supreme Court of Canada.

Urgent relief could be sought if it becomes necessary - say, to forestall some sort of enforcement of the ASA. Under most circumstances, legislation under challenge would have its effect maximally-preserved as it ran through the courts, but with legislation so patently unconstitutional, that's less likely.

(Other avenues of challenge include a Federal referral directly to the Supreme Court of Canada under s.53 of the Supreme Court Act.)

There's really no question that the courts - yes, including Alberta's existing court system - would conclude that the ASA (in any form comparable to what's been described in the Free Alberta Strategy and elsewhere) is ultra vires the Province. Lawyers usually hedge away from saying that any case is a foregone conclusion, but...this is about as close to a sure outcome as we get.

There's no serious discussion otherwise: We all know how the courts will land on the constitutionality of the ASA and FAS. One of its central authors, Barry Cooper, described it as unconstitutional on purpose.

Just like there's no serious discussion of the Feds' ability to enact and enforce laws, in general. While there may be specific cases to challenge Federal legislation in courts, we know that the Feds do have jurisdiction to enact and enforce certain laws, which the courts can and do uphold.

But the 'plan', as it were, is to go ahead anyways - to get police who are going to enforce the 'law' as the Alberta government sees it, and not necessarily as the courts see it. (Part of the FAS seems to be to change or stack the courts, too. However, when I discuss the 'courts', whatever the FAS might create isn't part of that category. Real courts will still exist in Canada, and if the Alberta government wants to create a politically-stacked kangaroo court by co-opting the federal power of judicial appointment, that has about as much influence as a court presided over by my labrador retrievers.)

The resulting conflict with Federal government employees is the stuff of dystopian fiction: Two groups of armed officers opposing each other based on perceived conflicting legal rights and obligations. Here's the thing, though: Everyone involved at the Provincial level would be in huge (real) legal jeopardy.

Armed resistance to Federal law enforcement is dark. But that does, in fact, appear to the be plan.

The Two Missing Prerequisites: Time and Competence

As I noted before, certain essential elements of the plan won't happen overnight. Estimates are that it would take at least two years to establish an Alberta Provincial Police, and another year or two to replace the local RCMP detachments.

So no, this isn't a conflict we'll see fully manifest before the next election.

As well, nothing in operations of the UCP, or Smith in particular, to date suggest to me that they have the competence or aptitude to effectively dismantle our institutions to the point that they'll be able to effectively pull off the FAS. That doesn't mean I'm comfortable letting them try.

Because in the mean time, we're seeing a lot of disturbing propaganda, seeking to delegitimize the courts and Federal authority in general. They're targeting an audience that can't be relied upon to react in rational and level-headed ways.

Mythbusting: Garbage Facts and Conspiracy Theories

While not ultimately central to the point, let's highlight that the complaints Smith is raising are not legitimate.

Federal Employees Trespassing?

Several laws allow government employees to enter onto private property to carry out their regulatory roles. When doing so, they are not trespassing, because they are there pursuant to lawful authority.

The Saskatchewan saga has absolutely no indication that there's anything improper in the actions of the Federal employees in question.

What's more, these kinds of legal warrantless entries aren't limited to the Federal government, but exist in countless Provincial laws (in both Saskatchewan and Alberta, among others), too. There's nothing new, unique, unusual, or outrageous about regulators being able to do such a thing.

(Also note that we're not talking about laws that would permit government employees to go into your bedroom. In this context, we're talking about privately-owned land; in other contexts - predominantly Provincial - we might be talking about entering non-residential structures and units.)

Climate Cops?

This is basically a conspiracy theory. Environment and Climate Change Canada is hiring enforcement officers and building structures to replace existing facilities, but while Smith and others have chosen to attempt to portray this as an effort to create an army to go after carbon emitters, that's really not true. The officers and facilities address long-standing and legitimate functions of the department, primarily related to non-climate-related environmental protection and fisheries regulation.

Federal Encroachment?

While we're mythbusting, let's touch on one of the most frequent responses I see from anonymous or pseudonymous Twitter accounts whenever I talk about the ASA: The claim that it addresses a real need to defend the Province against Federal encroachment.

Certainly, there are cases where questions arise as to which level of government has the authority to enact a particular law, especially when the Federal government relies on broad powers that can intersect Provincial heads of power, such as the Federal criminal law power or POGG (Peace, Order, Good Government) powers.

But where those questions arise, we have a process. Our independent judiciary is tasked with answering those questions, and while reasonable people can disagree with a particular approach the courts use to answering specific questions of constitutional interpretation and application - and often these questions have split decisions even at the Supreme Court level - we have given the judiciary the final say in answering these questions.

So when the Province has a problem with a Federal law, they have a right to challenge that law in court, to get the court to assess whether it's properly within Federal power.

The subtext of these critiques seems to be an assumption that the courts don't properly hold the Feds to their constitutional powers - that they're either biased or wrong. Allegations of bias have absolutely no grounding in fact whatsoever; allegations that they're wrong simply misunderstands the nature of the judicial exercise.

There isn't a single objectively-correct answer to these kinds of questions, where we entrust nine individuals with a sacred duty to find that single outcome (and if they get it wrong, they've failed in their duty). Rather, there is a range of plausible outcomes, and we vest in the judiciary the power to determine which one we (as a country) will follow.

As I've said before: "within our legal milieu, the apex court is, by definition, always right"

In other words, there's no such thing as the courts letting the Feds encroach on Provincial jurisdiction, because if the courts say the Feds have that power, the Feds have that power.

Alberta Only Joined Confederation on Terms

This is a weird one. Some of the anonymous commentators seem to be of the view that Alberta was once a distinct and autonomous political entity that joined Canada and retained some residual discretion to change its mind.

That's an argument I've heard made about Texas, but in Alberta the factual underpinnings are simply...not true.

In 1870, the UK signed over "Rupert's Land" and the Northwest Territories to the Dominion of Canada. Think: All of the modern-day territories, all of Alberta and the Prairies, with what's now northern Ontario and Quebec. That same year, Manitoba became a Province - but MUCH smaller than today - and BC joined the following year.

For perspective, the first known European settler to settle the Calgary area, John Glenn, arrived in 1873. Fort Edmonton was a fur trading outpost.

The railway promoted Prairie settlement, and in 1905, Alberta and Saskatchewan became Provinces, divided along the Fourth Meridian. (This must have come as some surprise to the people of Lloydminster: In 1903, a group of over 2000 colonists arrived in Lloydminster, settling a town with it's main street running down the Fourth Meridian - well, that was the idea; turns out they missed it by a couple blocks - presumably with the intention of being in the middle of the action of the anticipated Prairie Province.)

Prior to becoming a Province of Canada in 1905, Alberta was not a politically distinct entity. The idea that Alberta somehow stands apart from Canada, historically, is simply a fiction.

Regulation By Permission

The other claim where I've seen anonymous pushback is a suggestion that the ability of the Federal government to directly enforce its laws within the Province requires Provincial permission.

It doesn't.

The structure of our constitution is one that creates two separate tiers of authority in respect of the same geography: The Province has autonomous authority within its sphere of responsibility, as set out in s.92 of the Constitution Act, 1867, and the Federal government has autonomous authority within its mandate, set out primarily in s.91.

While there is a narrow usage of the word 'sovereignty' to describe the autonomous power that both levels of government exercise, Alberta is absolutely not sovereign in the sense of being able to exclude anyone or anything from its borders. (Emergency interprovincial pandemic measures were extraordinary, and possibly justifiable under the circumstances, but in general...the Federal government has exclusive control over customs and immigration - so, ports of entry at the US border and international airports - and the Federal government also controls the interprovincial flow of trade.)

Anyone who thinks that CRA needs Alberta's permission to freeze your bank accounts for unpaid taxes...has been drinking Danielle Smith's Kool-Aid.

But Quebec!

The other defence I hear of the ASA is that it's not unprecedented because Quebec does the same thing.

That's simply not true in any broad way.

Quebec has occasionally legislated outside its authority - for example, trying to override the Feds on MAiD, a point rendered moot by the court's finding that the Federal legislation on the point offended the Charter. However, while that was a bold and constitutionally problematic move, there was never any suggestion that it would play out anywhere but the courts.

They routinely invoke s.33 to ignore certain provisions of the Charter. We can all have our opinions about that, but - even if we think they use it in a way that's bad policy, or even immoral - s.33 is a power the constitution confers upon them.

And yes, they harnessed sovereigntist sentiments as a negotiating chip against the rest of Canada. Quebec's approach to that was a referendum for separation, which was right. Following the outcome of the Secession Reference, we now have something of a framework for this, that a 'clear majority on a clear question in favour of secession' triggers an entitlement to negotiate terms of secession. (At the same time, the SCC confirmed that there's no unilateral right to secede.)

For those who really think that the constitutional bargain struck in 1867, which Alberta joined in 1905, no longer works for Alberta, that's the road map: A referendum with a 'clear majority on a clear question'. Not unilaterally deciding to ignore the constitution.