A Closer Walkthrough of the Alberta Sovereignty Act

 There's SO MUCH discussion of what the ASA is and does; I think it might be helpful to walk through the whole thing. (This remains true even though the word is that they'll be changing it.)

It's not long. It's a bit complicated. So some of this will be technical. I also won't be going through it in sequence, because legislative drafting doesn't really work that way. Most statutes, including this one, START with a 'definitions' section, but you don't really get the significance of any of them until you start seeing how the terms are used. Best to have a separate window open to the definitions while reading an Act, really.

I'll ignore the Preamble because, aside from a few nuanced interpretation questions, that stuff doesn't matter much.

The Meat of the Bill

Most of the action in this Bill is in sections 3 and 4. Section 3 establishes a 'resolution' process for the legislature to invoke the ASA, and section 4 sets out powers for the Lieutenant Governor in Council - which is basically shorthand for the Premier and her Cabinet. Most of the rest of the Bill clarifies how those powers work.

So let's start with section 3:

3 If, on a motion of a member of Executive Council, the Legislative Assembly approves a resolution that

(a) states that the resolution is made in accordance with this Act,

(b) states that, in the opinion of the Legislative Assembly, a federal initiative

(i) is unconstitutional on the basis that it

(A) intrudes into an area of provincial legislative jurisdiction under the Constitution of Canada, or

(B) violates the rights and freedoms of one or more Albertans under the Canadian Charter of Rights and Freedoms, or

(ii) causes or is anticipated to cause harm to Albertans,

(c) sets out the nature of the harm, if the resolution states that, in the opinion of the Legislative Assembly, a federal initiative causes or is anticipated to cause harm to Albertans, and

(d) identifies a measure or measures that the Lieutenant Governor in Council should consider taking in respect of the federal initiative,

the Lieutenant Governor in Council may take the actions described in section 4.

(Definition assistance: "federal initiative" means "a federal law, program, policy, agreement or action, or a proposed or anticipated federal law, program, policy, agreement or action")

A few important things to note here.

Firstly, a resolution under the ASA can be grounded by an opinion (held by the majority of the LAA) EITHER that a Federal initiative is unconstitutional OR that it's harmful to Albertans. Even assuming charitably that such an assessment were made on a well-informed and good-faith basis, we're still talking, inarguably, about the ASA being invoked against Federal laws that are valid and constitutionally enacted, but that the Alberta government just...doesn't like.

Secondly, the motion has to be introduced by a member of the Executive Council - i.e. the Premier or a Cabinet Minister. So when invoking the ASA, the wording of the resolution will invariably be crafted by Cabinet. Also, while the preamble suggests that votes will be 'free votes', there's no mechanism that prohibits a whipped vote.

Thirdly, the key language here turns out to be in 3(d), identifying 'measures' to recommend to Cabinet. (NB: "measure" is not otherwise a defined term.)

This process is what triggers section 4.

4(1) If the Legislative Assembly approves a resolution described in section 3, the Lieutenant Governor in Council, to the extent that it is necessary or advisable in order to carry out a measure that is identified in the resolution, may, by order,

(a) if the Lieutenant Governor in Council is satisfied that doing so is in the public interest, direct a Minister responsible for an enactment as designated under section 16 of the Government Organization Act to, by order,

(i) suspend or modify the application or operation of all or part of an enactment, subject to the terms and conditions that the Lieutenant Governor in Council may prescribe, or

(ii) specify or set out provisions that apply in addition to, or instead of, any provision of an enactment, 

 subject to the approval of the Lieutenant Governor in Council,

(b) direct a Minister to exercise a power, duty or function of the Minister, including by making a regulation under an enactment for which the Minister is responsible, or

(c) issue directives to a provincial entity and its members, officers and agents, and the Crown and its Ministers and agents, in respect of the federal initiative.

(2) A directive issued in accordance with subsection (1)(c) may be general or particular in its application.

(3) Where there is a conflict or inconsistency between

(a) an order made or an order that is directed to be made under subsection (1), and

(b) a provision of an enactment to which the order relates,

the order prevails to the extent of the conflict or inconsistency.

(4) Nothing in this Act abrogates any authority or power vested in the Legislative Assembly or Lieutenant Governor in Council by any other enactment or by operation of law, including any authority or power of the Lieutenant Governor in Council to take action with respect to the federal initiative. 

Let's unpack this piece by piece. Most of the action is in 4(1).

Once a s.3 resolution passes, the ball gets passed to the LGIC (again, Cabinet) to make orders "to the extent it is necessary or advisable in order to carry out a measure".

This is an important piece of the puzzle. This isn't narrow language, requiring the orders to be explicitly authorized by the Legislature, or spoken to with any specificity. The 'measure' can, but doesn't have to, specify legislative amendments to be made in pursuit of the goal.

Any measure that expresses any type of goal-oriented permission at all would invariably give Cabinet free rein to say, "Well, they didn't mention changing statute C in the resolution, but we think it's advisable to suspend its operation in pursuit of the measure."

To draw out the point: If a houseguest wanted some privacy, I might recommend a measure of "go to the second floor". Now, you might THINK that's a narrow permission to walk up the stairs. But if my guest subscribes to an 'anything necessary or advisable' standard, and doesn't want to step over the dog curled up on the landing, they might conclude that I've authorized them to throw a grappling hook onto my upstairs rail, or to demolish my home office and replace it with an elevator to reach the upper floor.

(God forbid my recommended 'measure' is something more general, like 'find an empty room'.)

It's tough to imagine a scenario where ANY 'measure' was framed so narrowly that the LGIC couldn't say "I think it's advisable to amend the fixed election law to continue the Legislature for longer and more effectively be able to accomplish the measure" or "I think it's advisable to have a Justice Minister pursuing this measure who isn't burdened by a Law Society disciplinary proceeding, so we'll order the Law Society to drop those proceedings."

Ultimately, this is probably one of the most critical things to understand, when it comes to the interpretive debates going on: The government COULD have crafted the bill to require explicit authorization, with some specificity, for the powers in s.4. It didn't, and that requirement simply isn't there.

So when somebody tells you that a legislative amendment under s.4 has to get approved by the Legislature first, they are not describing Bill 1 as drafted.

Furthermore, with so much turning on how broadly or narrowly the 'measures' in the resolution are crafted, remember: The language of the resolution is crafted by Cabinet, and the resolution substantively and primarily deals with the Federal initiative it's condemning. So, practically speaking, you get a piece of political theatre condemning, say, an allegedly-overbroad regulation under the Federal Firearms Act, that uses generally-framed measures to respond to it, and voting against the resolution ends up getting spun as support for the Federal regulation...while voting FOR it means giving the Cabinet vast power to do whatever they see fit.

The Powers

So let's look at the specific powers under s.4(1). 4(1)(b) is a nothing-burger, barely worth paying attention to, because it's a power for Cabinet...to direct Cabinet...to do things already in the power of Cabinet. Seems silly to me. I don't see the point.

But subsections (a) and (c) are VERY potent. Subsection (a) is effectively a power to suspend, modify, or add to legislation without going through a legislative process. This is the Legislature conferring its core legislative function on the Executive branch.

We sometimes refer to this as a "Henry VIII" clause - harkening to the 1539 Statute of Proclamations, empowering King Henry VIII to make any executive order and it would have the force of law as if passed by Parliament. In the modern Canadian context, these are usually narrow powers: A delegated authority to structure some scheme within the framework of a statute, that may override some other part of that statute.

This is not limited. This is a power to modify any statute in any way - so long as they deem it 'necessary or advisable' in pursuit of the 'measure' in the resolution.

Subsection (c) is a power to direct any 'provincial entity' to do anything. Referring back to the definitions list, 'provincial entity' is broadly defined, including public agencies; crown corporations; "an entity that carries out a power, duty or function under an enactment"; NGOs that get public funding; health authorities; schools and universities; municipal governments; and police services.

While a kneejerk reaction might be, "Yeah, the Provincial government gets to direct public servants, what's the big deal?", a closer analysis of this effect is called for. Many public bodies are insulated from political interference, and have their own statutory governance structures with relatively little ability of politicians to step in and say "I want you to do that".

When we talk about having 'institutions' that protect our democracy, this is really what we're talking about. Organizations like Elections Alberta, or the office of the Ethics Commissioner, that don't directly answer to partisan politicians. Police with civilian police services boards, where not only does a Justice Minister lack the authority to call up a police chief to kill a traffic ticket, but doing so is an attempt to interfere with the administration of justice. Self-regulated professions, like lawyers, that establish their own codes of conduct to protect the public interest, insulating their provision of constitutionally-critical services from political considerations.

Section 4(1)(c) is the power to direct the Law Society to disbar a lawyer who represents the Federal government. It's the power to direct police to barricade the road leading to a Federal government office. It's the power to protect the 'reputation' of a government embroiled in a conflict with Ottawa by telling the Ethics Commissioner not to investigate suspected wrongdoing. It's the power to direct tribunals to decide cases in a way that supports their agenda. It's the power to direct public sector payroll services to NOT remit employee withholdings to the CRA - much to the detriment of those employees, I might add.

These are vast and extraordinary powers, exercised without legislative oversight on the basis that they're seen as being "necessary or advisable" in support of an ASA measure.

The Rest of Section 4

So we've covered the main operation of the Bill. But there's a lot more there. What does it all do?

Section 4(2) specifies that a s.4(1)(c) direction can be 'general or particular'. In other words, it can order the police not to investigate one specific offence involving one particular person, OR it can order ALL public agencies to bar entry to any person known or suspected to work for any Federal government agency. Or anything in between. (Hope Federal employees don't need hospitals!)

Section 4(3) drives in the Henry VIII clause. It's poorly drafted in some ways, but at minimum it clarifies that an order takes priority over any conflicting legislation.

And section 4(4) is just a clarification that the ASA doesn't detract from other pre-existing powers the government may have.

Expiration of Orders - Section 5

5(1) Subject to subsection (2), the Lieutenant Governor in Council ceases to have an authority to make an order under section 4(1), and any order issued by the Lieutenant Governor in Council or a Minister under section 4(1) expires and ceases to have any force or effect, on the earliest of

(a) the date on which the Legislative Assembly rescinds the resolution referred to in section 4(1), or

(b) 2 years after the date on which the resolution referred to in section 4(1) was approved by the Legislative Assembly.

(2) The Lieutenant Governor in Council may extend an order issued under section 4(1) for an additional 2 years from the date on which the original order was set to expire.

(3) An extension of an order by the Lieutenant Governor in Council under subsection (2) may be made only once. 

In short, the LGIC's authority continues until either the resolution is rescinded, or 2-4 years after it was passed.

That's a HUGE sunset for these kinds of powers.

Given the scope of the power itself, though, one wonders if the LGIC would be able to say that it's 'advisable' for the purposes of carrying out the measure in resolution to modify the application of this provision, and extend it even past the four year mark.

Effect of Directives - Section 6

6(1) A provincial entity and its members, officers and agents, and the Crown and its Ministers and agents, must comply with any directive issued by the Lieutenant Governor in Council under this Act.

(2) A directive issued under this Act must be published in The Alberta Gazette within 30 days from the date the order is made by the Lieutenant Governor in Council under section 4(1).

(3) The Regulations Act does not apply to a directive issued under this Act. 

Section 6(1) puts an obligation on a "provincial entity and its members, officers and agents" among others to comply with an order or direction. That should be straightforward enough. It's a little awkward, though, for reasons I'll come to.

Section 6(2) isn't so unusual either, but it should bear noting that this publication process is the only mechanism in the Bill for bringing exercises of s.4 powers to the public's attention. So not only will we not necessarily know in advance before an order drops, but it might be operational for weeks before we even find out about it.

Also, the word choice of 'directives' is a bit confusing. In section 4, "directive" is only used in s.4(1)(c) - though the orders in subsections (a) and (b) also are to 'direct' action, so let's be charitable and assume that it encompasses all orders made under the authority of s.4(1).

Section 6(3)...well, that's obscure. You have to know the Regulations Act to know what that does. And while I'm not going to go through that one line-by-line with you, the biggest impact would seem to be that this gets out of the filing and publication process applicable to most Orders in Council, which require the filing of a regulation before it becomes effective, and directs the Registrar of Regulations to publish it within a month thereafter.

I don't see any reason to pull these Orders out of the purview of the Regulations Act except to get them out of the 'ordinary stream' of filing and publication.

Other Miscellany - Sections 7 and 8

7 This Act is binding on the Crown.

8 No cause of action lies against and no action or proceeding may be commenced against

(a) the Crown or its Ministers, agents, appointees or employees, or against the Legislative Assembly, the Speaker of the Legislative Assembly, an office of the Legislature, or any agents, appointees or employees of the Legislative Assembly or an office of the Legislature, in respect of any act or thing done or omitted to be done under or in relation to this Act or a resolution or order under this Act, including, without limitation, any failure to do something when that person has discretionary authority to do something but does not do it, or

(b) any other person or entity in respect of any act or thing done or omitted to be done in good faith under a directive issued under this Act, including, without limitation, any failure to do something when that person has discretionary authority to do something but does not do it. 

The Act being binding on the Crown is a normal recital - essentially it clarifies that government actors are required to conduct themselves in accordance with the statute.

As to section 8, this is largely about protecting people from liability - i.e. if a provincial entity acts in accordance with a s.4 order, they're not going to get sued for it. To be clear, I don't think there's a cogent argument to be made that this protects them against charges under Federal legislation. Which is important, as we'll come to.

The other interesting piece is the 'any failure to do something when that person has discretionary authority': It raises an interesting point. Given the vast discretion conferred upon the LGIC in s.4...well, while we typically think of judicial review as something that challenges 'exercises' of discretion, there are cases where the non-exercise of discretion can be challenged. While this liability protection defends against civil liability for not exercising discretion, it probably doesn't protect against judicial review.

Judicial Review - Section 9

9  (1) An originating application for judicial review in relation to a decision or act of a person or body under this Act must be filed and served within 30 days after the date of the decision or act.

(2) In an application for judicial review to set aside a decision or act of a person or body under this Act, the standard of review to be applied by the court is that of patent unreasonableness.

(3) Nothing in this section is to be construed as making a decision or act of the Legislative Assembly subject to judicial review.

Judicial review is how we ask courts to assess whether or not an exercise of delegated legislative authority is in line with the authority as assigned. Courts don't second-guess whether a statute is good policy (except, to some extent, in Charter challenges), and the legislature has some authority to delegate its own authority. What the court is asking is whether the exercise is consistent with the authority the Legislature saw fit to grant - in the sense of being within the scope of the power, exercised in a way consistent with the objectives of the statute.

Setting a time limit of 30 days is short. It's particularly short when you realize that the order may not even be public knowledge until 30 days after it's made. THAT should really make the hair stand up on the back of your neck.

The standard of 'patent unreasonableness' refers to the standard of review: In other words, when asking whether the order in question was 'necessary or advisable' to pursue the 'measure' from the resolution, courts should only interfere if it would be 'patently unreasonable' to conclude that it was.

Regulations - Section 10

10 The Lieutenant Governor in Council may make regulations

(a) prescribing provincial entities for the purposes of section 1(e);

(b) defining any term or phrase used but not defined in this Act.

This is a normal-ish sort of clause, allowing regulations that define terms or expand upon categories. 'Provincial entities' is already so broad that I don't think it could practically be broadened, so I don't think there's much going on here.

It's not clear to me whether s.6(3) excludes these regulations from operation of the Regulations Act.

Interpretation - Section 2

2 Nothing in this Act is to be construed as

(a) authorizing any order that would be contrary to the Constitution of Canada,

(b) authorizing any directive to a person, other than a provincial entity, that would compel the person to act contrary to or otherwise in violation of any federal law, or

(c) abrogating or derogating from any existing aboriginal and treaty rights of the aboriginal peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982.

This interpretive guidance sort of raises more questions than it answers. A "nothing is to be construed as" generally limits the scope, but when it embeds exceptions, that's trickier.

Section 2(a) is weird. Firstly, preferring to construe an Act in a way that accords with the Constitution is literally a principle of statutory interpretation...but wait, that's not what this does.

This isn't saying to construe the Act as being constitutional (which is the principle of interpretation), but rather as only authorizing orders that are constitutional.

Constitutionality of a legislative act often rises and falls on the basis of 'division of powers' - whether or not it's within the constitutional purview of the legislative assembly granting it.

"Division of powers", however, doesn't apply in the same way to executive action. A statute that authorizes orders that step on another government's jurisdiction is unconstitutional NOT because the order is unconstitutional, but because the legislative act itself - by authorizing such orders - is crossing a legislative line into the other government's area in the first place. (As much as this is an incredibly technical point, I think it's a core one as to what the UCP is trying to accomplish here. Keep this in mind.)

It's probably fair to say that s.2(a) would be fairly interpreted as prohibiting Charter-violating orders...not that you'd need s.2(a) to get there anyways. But that, in my humble opinion, is about it. It doesn't say that orders can't step on Federal jurisdiction. Ordinarily, you would infer that limit simply based on those default interpretive rules anyways - that the statute simply doesn't authorize those kinds of orders, because that authorization is obviously outside the scope of the legislature's authority, so why would you interpret it as trying? Except...s.2(b) creates a hiccup there.

You see, 2(b) is an extraordinary clause. "Just to be clear, we're not going to order people to do anything outright illegal, UNLESS..." The main part of that clause is one of those "It really shouldn't need to be said" propositions, but the fact that there's an exception impliedly asserts that the statute can be construed as authorizing an order to "provincial entities" to violate Federal law. If the statute didn't so authorize, the exception wouldn't be needed...so based on the ordinary canons of construction, the presence of that exception means that you simply have to interpret it as extending, at least under some circumstances, to authorizing orders that outright violate Federal law.

And given the lack of detail surrounding the scope of s.4 powers, there's not much basis for drawing distinctions here and saying "You can violate this Federal statute but not that Federal statute".

In other words, s.2(b) makes it explicitly clear that s.4 powers do extend to ordering violations of Federal law. Considering that this includes the Criminal Code...that's pretty far out there.

Individual Responsibility for Illegal Conduct of Provincial Entities

There's another element of s.2(b) that calls for attention: What does the exclusion itself do? Section 4 powers are extremely broad in allowing them to order around 'provincial entities'; the definition of 'provincial entities' is super broad; and there's even a regulatory power to expand the definition of 'provincial entities'...but there's ZERO argument that the Province could order around, say, a private business that doesn't fit in any of the 'provincial entity' categories. So why do we need to say so? What does the core language of s.2(b) actually speak to when it says "person, other than a provincial entity"?

The only answer I can see to that is that the exclusion is for the "members, officers and agents" of provincial entities, as referenced in s.4(1)(c) and s.6(1). Their inclusion in the first place is a bit surprising, as it creates a bypass for organizational chains of command, whereby an order won't simply bind the organization - which would, in turn, give instructions to its agents (on threat of dismissal if they don't comply) - but instead binds the agents directly upon threat of charges if they don't comply.

So section 2(b) carves them back out of any actual illegal orders. But when illegal actions are ultimately carried out by individuals, what does that mean?

I think the right way of conceptualizing it is this: Under s.4(1)(c), Cabinet could order a Provincially-funded not-for-profit to remit all tax withholdings to a Provincial agency rather than CRA; but per s.2(b), it could not order specific individuals in the NFP to carry that out. The organization itself would be required, by virtue of s.6, to instruct its staff to carry out the directive. But neither the directors giving that instruction, nor the staff members carrying it out, are personally bound by s.6(1) of the ASA.

Here's where it gets really shaky, though: The individuals involved in conducting illegal transactions for the corporation...may be liable. Especially in the example of CRA remittances: The corporation is deemed to hold withholdings in trust, and directors and staff directing those funds to a place other than CRA are complicit in the breach of trust and potentially personally liable.

Frankly, I'm not immediately convinced that "the ASA forced me to break this Federal law" would be a defence anyways, but given that they can't even honestly say that, they don't even have the argument. They end up in a very difficult position where the organization that employs them is legally obligated by the ASA to do something, but by conducting themselves in a way to allow the organization to meet those legal obligations, they would potentially be accepting significant personal risk upon themselves.

Section 2(c)

Section 2(c) is political in nature - Indigenous leaders have already come out against the concept of the ASA, and this is an attempt to spin the statute as resolving their concerns. But again, this is pretty much just saying "Please interpret the statute as complying with the Constitution" and it doesn't really do anything.

Post-Script: Pending Changes

In the last couple days, the government has made noise about going back to amend the Bill to 'clarify' that it doesn't give vast unilateral authority to Cabinet. "Bill 1" is typically a flagship Bill, and to table it in a form that you have to walk back is pretty embarrassing, but there are a couple theories floating around.

The first theory is that there was a huge disconnect between the Bill as drafted and what the Bill was supposed to do, and that nobody in the UCP leadership really looked all that closely at it. We know that Deputy Premier Neudorf admitted that he hadn't really read it, and we were getting information from the Premier, Deputy Premier Madu, and Alberta Justice itself, that expressly mischaracterized the impact of the Bill.

So maybe they just hadn't read it?

The second theory is that they knew and intended the effect of the Bill as drafted, and were just trying to spin it as having a different impact, in the hopes that...people would believe them? They may have overestimated public support for the Bill, and underestimated the outrage it would generate.

So they intended to turn the Sky Palace into an Imperial throne room, and backed off when everyone called them on it.

It's hard to say which theory would be the charitable one - that they're just so utterly inept that nobody in a leadership role bothered to read and understand their own flagship legislation (which has been at the core of Danielle Smith's public statements for more than five months), or that they're deliberately trying to follow in the footsteps of Chancellor Palpatine and deliberately lying to Albertans about it. Neither one puts them in a great light.

I tend to come down on the latter side, though. Because while I think they may be genuinely oblivious to the extent of the problems in the Bill, I also think that the Bill itself was crafted to circumvent a very particular problem in the first place (even though doing so created a bunch of other problems).

The Bill creates a complex shell game: A resolution is written by Cabinet, with recommendations for Cabinet, and empowers Cabinet to do whatever they think is 'advisable' in support of the recommended measures. If this was intended as anything other than an absurd power-grab, the really obvious question is this: Why go through the rigamarole of the shell game, instead of just tabling a bill to accomplish the thing you're directly trying to do?

And the answer is this: Because a statute with an express goal of undermining an otherwise-lawful Federal initiative is almost guaranteed to be unconstitutional, even if it doesn't actually DO anything directly inconsistent with Federal authority. This is because, when we ask about which side of the division of powers a statute falls on, we ask about its 'pith and substance' - what is the legislative body really trying to regulate.

So if the Legislature passed a statute directing Albertan police not to investigate or pursue charges against people who possess certain types of prohibited firearm, the courts would almost certainly say that the 'pith and substance' of such a statute is within the criminal law sphere - which is Federal authority. The statute would be unconstitutional on that basis alone.

But the pith and substance of Bill 1 is...much more vague. Because it doesn't really do anything directly, and merely gives powers to Cabinet to do unspecified things, it's hard to say exactly what its 'pith and substance' is. And if the executive, using those vague powers, issued directives to police about enforcement of firearms legislation, that's less problematic. (Remember what I was saying about how division of powers hits the executive branch differently?)

The trouble is that, to accomplish that, you need to craft the ASA in a way that confers sufficiently vague and broad authority on the executive that you can simultaneously say that regulating (for example) firearm enforcement is (a) within the delegated authority under the act but (b) NOT the pith and substance of the act.

So we'll see what changes they end up making to the Bill. It's tough to fix, even within the relatively narrow scope of what they're talking about. But the reality is that there are a bunch of problems with the Bill as written, and even if they clean up one area, it's still likely to leave something very problematic, simply by virtue of what the Bill seeks to accomplish.