The Alberta Sovereignty Act Finally Drops - and Crowns Empress Danielle

 For over a year, I've been commenting on iterations of the proposed 'Alberta Sovereignty Act' - the cornerstone of the totalitarian coup that is the Free Alberta Strategy, and the centerpiece of Danielle Smith's leadership campaign that put her in the Premier's office.

All previous commentaries are exclusively reliant on descriptions, for public consumption, of what it is and does.

Yesterday, Bill 1 was tabled, and we get to see for ourselves: Does the Alberta Sovereignty Act actually purport to give the Legislature authority to resist Federal exercises of their lawful jurisdiction? Or is it a symbolic waste of ink that empowers the Legislature only to...keep whining?

The verdict: While it still doesn't give us clarity of what kinds of actions they're contemplating to try to 'shield' Albertans from Federal laws, it's clear that the operation of this bill is unconstitutional and outrageously anti-democratic.

The Basics: Separation and Division of Powers

Let's start with two simple constitutional concepts, both of which are stepped on by the ASA:

The Separation of Powers refers to the allocation of governmental authority to different 'branches' of government - the legislative, the executive, and the judicial. In Canada, the legislative branch (i.e. Parliament, or the Provincial legislatures) pass laws; the executive branch assents to laws and oversees the administration of government operations; the judicial branch interprets laws and resolves disputes.

The Division of Powers refers to the allocation of different jurisdictional authority in a Federal country - we give some powers to the Federal government, and others to Provincial governments.

So ordinarily, when the Federal legislative branch passes a law that a Province (or, really, any stakeholder) thinks exceeds the Federal government's authority, they go to court to try to get the judiciary to agree with them. These fights usually end up at the Supreme Court of Canada, and the SCC gets to decide - based on an interpretation of the constitution and the legislation challenged - whether the law being challenged is 'intra vires' (within the powers of) or 'ultra vires' (outside the powers of) the Federal government.

The same process exists if a Province enacts a law that arguably steps on the jurisdiction of the Feds, or of another Province.

These jurisdictional questions turn out to be super complicated at times. There are times where jurisdiction overlaps, where the two levels can implement similar types of regulatory scheme for different groups (like employment laws), or even times where you get separate Provincial and Federal prohibitions for exactly the same action (like drunk driving). Without going into a full constitutional law course here, suffice it to say that it's seldom as simple as a Province saying "We regulate this area, and therefore the Feds can't."

When we talk about whether a statute is within a government's authority, we're usually talking about the "pith and substance" of the statute, looking at a law's purpose and its practical and legal effect - including overall text and scheme of the statute (i.e. what the law actually does) as well as extrinsic evidence, which can include government statements about the law.

Also, while there's never any obligation on Provinces to enter into cooperative Federal/Provincial programs, one of the basic premises of the Alberta Sovereignty Act has always seemed to be that the Province has effective control over what laws get enforced by virtue of its jurisdiction over the administration of justice. This is categorically wrong. While most policing activities are run under Provincial authority, not all law enforcement activities are. Particularly relating to Federal non-criminal laws, the Feds have their own enforcement officers. And as far as criminal law goes, if the Province were to legislatively direct the police not to enforce facets of Federal criminal law (say, "Don't charge people for possession of prohibited firearms x, y, or z"), it's very likely that such a legislative initiative would be seen as having a "pith and substance" that's substantively criminal in nature (and therefore within Federal authority), and not merely be an exercise of the Province's authority over the administration of justice.

But aside from the substantive 'division of powers' issues, the other problem raised by the ASA is that it's coopting the judiciary's interpretive function. If the Provincial legislature attempts, by or under a legislative act, to declare a Federal law to be unconstitutional overreach, then - even if one assumed they were right - that declaration would be a step outside their legislative authority.

So there are three problems in principle with the oft-stated goals of the ASA:

• Attempting to make any sort of meaningful determination as to the constitutionality of Federal policy is inherently outside the authority of the Legislature;
• Most Federal policy does not require meaningful Provincial buy-in to be valid and meaningful, and attempts to render it ineffective in Alberta would require something more than simply 'non-enforcement';
• Alberta's authority over the administration of justice does not extend to a de facto power to rewrite Federal policy within the Province.

The only iteration of the ASA that would be within the Legislature's authority would be super narrow - a declaration that a Federal policy is adverse to Alberta's interests, and a directive to Provincial departments to not voluntarily provide assistance to Federal departments in implementing it. (This, in my view, is factually distinct from telling police not to enforce a criminal law: I'm not saying they could pick and choose which criminal laws police enforce or which charges the courts will process, but I *am* saying that they could decide whether to coordinate information and efforts with a Federal agency tasked with overseeing the implementation of a regulatory regime.)

The ASA Framework

First, the Legislature passes a motion complaining of a Federal initiative (law, program, policy, agreement, or action), invoking the ASA on the ground that (a) it's unconstitutional because it 'intrudes into an area of provincial legislative jurisdiction'; (b) it's unconstitutional because it violates the Charter; or (c) it "causes or is anticipated to cause harm to Albertans".

As part of the motion, the Legislature sets out how they think it hurts Alberta, and makes non-binding recommendations for measures to deal with the overreach.

NEXT, Cabinet gets to do...basically whatever it wants. Literally. No, really, this is wild. They get to unilaterally suspend or modify the operation of Provincial statutes. Any statutes. In any way. In as close to unfettered discretion as can conceivably exist.

Part of the power is to issue directives to Provincial agencies (including police services, health authorities, schools, municipalities, administrative tribunals, crown corporations, and NGOs getting Provincial funding), which must be followed, "in respect of the Federal initiative". There's no clarity or limitation as to what kinds of directives we might be talking about, and that's the ONLY part of the conferred powers, which are significant, that even refers to the Federal initiative that triggered the resolution in the first place. (Nigel Banks has speculated that this may be a drafting error - that "in respect of the Federal initiative" was intended to be distributed across the other powers, too - which is plausible. Even if that's the case, 'in respect of' is so subjective and broad that it wouldn't be much of a qualification on the Bill's vast executive power.)

It's really a very simple statute. The Legislature passes a resolution, and the Premier becomes an Empress of limitless power.

Decisions made under the ASA are subject to judicial review, with an abbreviated limitations period, and on a standard of "patent unreasonableness". (There's a lot of nerdy conversation to be had about this. This used to be a phrase that meant something in the common law, but it was largely scrapped circa 2008 - except that it had been integrated into statutes, which meant that courts had to figure out what to do with that language now that it no longer referred to a common law standard. Now, there's some conversation about whether the standard is meaningless, or itself unconstitutional, but suffice it to say that it's a weird phrase to see in a 2022 statute.) Whatever that means, it's clear that it's a direction - which would be conventionally valid on administrative law principles - for courts to give maximal deference to the executive in exercising their discretion under the ASA.

The statute also explicitly states that it shouldn't be read as authorizing unconstitutional orders, orders that would mandate a violation of Federal law by anyone (other than a Provincial entity!), or orders that abrogate treaty rights. These, too, are WEIRD disclaimers to see in a statute. Statutes generally shouldn't be construed as authorizing unconstitutional orders. That's actually a rule of interpretation: if there's a coherent interpretation of the statute that IS constitutional, use that one (over an interpretation otherwise).

What this Statute Doesn't Do

Given all the rhetoric we've seen about this, let's throw out a few pieces entirely.

Firstly, the ASA is expressly not limited to cases where the Federal government unconstitutionally overreaches into Provincial jurisdiction. It's much broader than that, dealing with any Federal policy that the legislature thinks harms Albertans.

Secondly, the 'free vote' stuff occurs only in the preamble, and is binding on nothing and nobody. (Not that it could be.)

Thirdly, it doesn't actually say anything about how it would possibly 'shield' Albertans, as promised, against the impact of Federal legislation. This is Danielle Smith promising us that, if we give her the powers of an Empress, she'll somehow fix Federal overreach, without saying how. It's demagoguery 101.

This is a critical point for everyone to understand. There's nothing built into this statute about 'non-enforcement', or such similar nonsense, nor is there anything in these sweeping executive powers that particularly targets Federal 'overreach'.

Problems

There's a 'vagueness' issue here, in that we don't have much guidance in terms of what the statute is actually supposed to do.

But before we come to that, let's talk about the clear problems on its face.

Separation of Powers - The Legislature Takes the Judiciary's Authority

First off, a legislative ability to issue a resolution relating to the constitutionality of Federal legislation is clearly outside the Legislature's power - both in a 'division of powers' and a 'separation of powers' kind of way, and puts us right into 'constitutional crisis' territory on both fronts.

Even if the statute didn't do anything else beyond that, merely the fact that a Provincial law deems an operative Federal law to be inoperative creates a clash between the two levels of government. Beyond that, they're co-opting the role of the judiciary. (It also bears noting that the Constitution does permit intrusions into Provincial areas of regulation under a range of circumstances. By suggesting that the mere intrusion makes a Federal initiative unconstitutional, the ASA...is flatly wrong.)

Separation of Powers - The Executive Takes the Legislature's Authority

Secondly, the whole statute is basically one big 'Henry VIII' clause - delegating effectively unlimited authority to modify statutes.

Henry VIII clauses are generally legal but controversial. While it's not at all unusual to delegate to the executive power to clarify the statute they're within (for example, creating a framework for minimum wage and then giving authority to the Minister of Labour to decide, from time to time, what that minimum wage will be for different groups of workers), clauses that actually allow the executive to effectively re-write the statute are not quite so commonplace.

Even then, they're usually limited to specified to narrow powers under a specific statute. For example, in the Greenhouse Gas Pollution Pricing Act, there's a delegated power to create a 'fuel charge system', with a Henry VIII clause saying that, if the terms of the fuel charge system conflict with some other provision of the statute, the fuel charge system language governs. THAT is a super-narrow power that allows the executive to craft a regulation that ignores statutory language for specified purposes.

When the Trudeau government proposed Henry VIII clauses in their COVID relief measures to expedite responses to the evolving pandemic, it was widely criticized as a 'power grab', and they were forced to back off of it.

The ASA, by contrast, doesn't just have a Henry VIII clause; it has a Henry VIII coronation, giving unrestricted power to make any changes to any statutes. This doesn't merely delegate legislative power; it delegates the entire legislative function. It's tough to overstate how extraordinary and outrageous this is. It's analogous to a narrow emergency power that used to exist in Alberta's Public Health Act, with a 60 day sunset clause. I'm not aware of that power ever having been used, though.

(For the record, there ARE things that, as a matter of constitutional law, can't be done by way of regulation.)

I'd wager against that clause holding up to a constitutional challenge. Even courts that have historically upheld Henry VIII clauses as permissible are likely to take a dim view of the Legislature delegating its entire power.

Division of Powers - Conflicts With Federal Law

Thirdly, let's back up to the "We're not going to make anyone violate Federal law" part. Because, firstly, it has an exception. Which is insane: Creating that exception explicitly means that they can direct Provincial agencies to violate Federal laws. And those agencies include...the police.

This is incredibly dangerous. Without a bit of hyperbole, I can say that if the statute were constitutionally effective, Cabinet could direct police to go burn down a Federal government office, and they'd have to do so.

Another missing element from that disclaimer: There's no clarity about whether they could permit violations of Federal law - a notable exception, given that they've talked expressly about authorizing work that doesn't comply with the IAA.

There aren't a lot of Federal regulatory statutes that directly impact Provincial agencies...but there is some interplay. The biggest, and most obvious, exception is that Provincial actors are bound by Federal criminal legislation. Another, which is relevant to significant elements of the Free Alberta Strategy, is that Provincial payroll practices have to comply with certain Federal laws - like withholding and remitting Federal taxes to CRA.

It should be fairly obvious to any onlookers that the Provincial government issuing orders to Provincial agencies to break Federal laws is...not constitutionally sound.

Vagueness

Finally, we come back around to vagueness - the fact that it confers some vague decision-making power on the Executive without creating a particular scope for what they can actually do.

And here, we run up against two likely-competing principles of statutory interpretation: On the one hand, we assume that this has to empower them to do something beyond the other express language of the statute; on the other hand, statutes should be read, if possible, in a constitutionally compliant manner. In other words, if a statute is ambiguous, and one interpretation would be constitutionally problematic while a second plausible one would be compliant, we should prefer the second interpretation.

The reason these are in conflict is basically because it's not clear that the Legislature could properly do anything substantive to oppose a Federal policy. And to the extent they might be able to do something, a catch-all statutory provision authorizing it would either be unnecessary (in that they have a free-standing right to do it) or inadequate.

In practice, these kinds of interpretive questions can be messy: Quite often, a legal argument gets framed on the basis of "That's not what the statute means...OR, in the alternative, if that IS what the statute means, it's unconstitutional."

(I know I've drafted constitutional challenges on that basis from time to time. Also look at the recent Labour Board fight in Ontario where the government tried to get a declaration that the CUPE dispute was an illegal strike, and CUPE's response was "This isn't a strike within the meaning of the Labour Relations Act, or if it is a strike within the meaning of the LRA, then the LRA's definition of a strike is unconstitutional and inoperative.")

So, while I think there's lots of reasons why this statute should be struck down in its entirety, there's also a possibility that a fight might be about what they try to do with this statute. For example, if they try to invoke this legislation to effectively modify the application of the Firearms Act within Alberta - hey, police, don't enforce provisions x, y, or z of this Federal statute - or to confer permissive licenses and authorizations to projects to proceed notwithstanding non-compliance with the Impact Assessment Act (which is currently pending before the SCC), those will be focal points for the (un)constitutionality of the ASA.

Remember my 'worst case scenario' discussions in earlier entries about armed police being sent to stop Federal officers from enforcing Federal regulatory regimes? Given the scope of powers this statute confers upon the Premier, it's hard to rule that out - or to say it's a worst case scenario.

What Happens Next

First off, this is still just a bill. With a majority government, though, if you'd asked me before it was tabled, I'd have said there's no chance that it fails to pass. Now, I'm less sure of that: This bill is so next-level insane that it's tough to imagine the government sticking to it as its written. Still, let's assume for the sake of argument that it passes.

Next, it likely gets royal assent. Yes, this bill is extraordinarily bad, but remember: We generally trust our courts with questions of whether a bill is constitutional. As I'll explain below, the courts are perfectly capable of dealing with this bill. So they will.

Calling on the LG to withhold assent is problematic. She's in an appointed, unaccountable role, and withholding assent is (and should be) basically unheard of. It's bad policy, and it's unconstitutional, but the LG's assessment is a closed-door process, and she's neither a lawyer nor a judge. If you want a paradigm where an LG is empowered to kill a bill because - without hearing or process - she decides it's unconstitutional, then you need to be equally prepared for the possibility that some other unelected LG in the future will withhold assent to legislative initiatives you like because of constitutional doubts.

No, we should not look to an unelected deus ex machina to protect us from ill-advised actions of our elected representatives. We should be more careful with how we elect representatives in the first place.

The one thing that gives me pause on this, that makes me think "Maybe this is the right sort of bill for the LG to step in on", is the executive power to compel the police to violate criminal law. That power, used in specific ways, would bring us into such an acutely dangerous constitutional crisis that...maybe this should be kicked at the outset.

So, back to the narrative: The bill will pass, and get assent, and then what?

There have been some discussions of a proactive challenge against the ASA. I'd tend to argue that such a challenge would be well-founded. Its operations and mechanisms at a fundamental level are entirely about pulling the legislature and executive branches outside of their constitutionally-established roles.

That process, in and of itself, would take time - even assuming it proceeds at all.

In the mean time, the Smith government would be presumably using the ASA, raising a likelihood of a range of additional challenges, including judicial reviews at the use of the delegated authority, as well as constitutional challenges to specific uses of it.

That opens the door to all sorts of interesting developments, particularly if the ASA is used to actually breach Federal laws or circumvent Federal regulatory regimes.

One of Smith's complaints - and justifications for the ASA - is that an unconstitutional law is typically left in force while challenges run their course, which can take years. While generally true, this is not necessarily true.

A party seeking relief against an unconstitutional law can seek an interlocutory injunction preventing its enforcement. There's a high test for this - statutes benefit from a presumption of validity at an interlocutory stage. Someone seeking relief has to show (a) a case for entitlement to relief, (b) irreparable harm that will flow from enforcement of the statute, and (c) that the 'balance of convenience' favours them, and in this calculation you presume that the statute is in the public interest.

That's usually tough to do, but the conflict that the ASA sets up is one between an obviously-constitutionally-deficient Provincial statute and the arguably-deficient (maybe) Federal statutes it's trying to fight against. That changes the calculus significantly on the 'presumption of validity'.

Conclusion

The ASA is simultaneously not-at-all as advertised, with no clear tools for addressing the complaints that drive it, while amounting to an unprecedented and terrifying consolidation of power in the executive branch.

While our system tends to merge legislative and executive power in a fashion - so the Premier getting to amend laws without a legislative process seems like nothing more than sidestepping the process - the reality is much more significant, that many of the organizations that she can direct are typically insulated from direct political interference.

The police, in particular, are not supposed to be a politicized body. There are institutional layers of protection between political decisions and front-line police actions, and this is an important feature of our democracy. The scope and depth of interventions into semi-independent bodies is stunning - municipal governments, administrative tribunals, education boards, etc. - but the politicization of the police is one of the most deeply concerning aspects of this bill.

While much of the commentary - mine and others - will focus on the extraordinary Henry VIII framework, we shouldn't lose sight over the fact that the bill also gives extraordinary and nigh-limitless powers to political actors to control parts of the government that are supposed to be protected from that kind of political operation.

Star Wars fans might recognize this bill, in its essence: It's basically the same bill as the one proposed by Jar Jar Binks to grant emergency powers to Chancellor Palpatine to deal with the Trade Federation crisis.

If this bill is passed, and allowed to stand, I could not imagine a more efficient way of demolishing the institutions that protect democracy and rule of law. It's outrageous, dangerous, anti-democratic, and irredeemably unconstitutional.