Alberta Sovereignty, Act II: Is it fixed?

 In the wake of huge controversy over, in particular, the Henry VIII aspects of the Alberta Sovereignty Act, the UCP announced certain changes to the bill.

I haven't seen the actual text of the amendments to be made. As far as I can tell, they haven't actually tabled the amendments in any way, but are pressing the Bill forward, including motions limiting debate on it, without the amendments, and simply intend to move those amendments at a later stage in the process.

But the announcement is pretty specific, indicating section references with wording changes. So I'm going to assume for the moment that this announcement actually captures the amendments they intend to make.

In short:

• while the 'old' s.4(1)(a) allowed Cabinet to change the operation of statutes, the new one changes that to 'regulations'. That makes it a less extraordinary clause; regulations are typically within Cabinet purview to change anyways.
• Instead of triggering the ASA for any Federal initiative the Alberta government doesn't like, they're limiting it to cases where (in their opinion) it infringes on Provincial authority or the Charter.

So does this fix it?

In a word...no.

The Henry VIII Problem IS STILL THERE

There's nothing in the amendment that suggests any change to s.4(3). This section of the bill provides that, where an order under s.4 is inconsistent with a statute, the Order prevails.

In other words, while they're removing the express language that allows Orders to modify statutes, the effect of the amendment is to allow Orders that impose regulations that override statutes.

It's six of one, half a dozen of the other. It slightly changes the mechanism, but doesn't actually limit the substantive power it confers upon Cabinet.

[Edit: December 8, 2022: The amendment actually dropped last night, and this aspect has been changed - an Order can no longer override Provincial statutes, only regulations. That's an interesting development, and it's worth some thought and analysis into precisely how much that changes the scope of s.4(3)(c).]

The Discretion to Invoke the ASA Isn't Limited

There's unlikely to be an effective review mechanism for legislative resolutions invoking the ASA.

So while limiting its invocation to Federal initiatives that, in the opinion of the LAA, violate the constitution may seem like it pulls away from the "We're going to use this against any initiative we don't like", if the resolution is to the effect of "This Federal law intrudes on Provincial powers because, in our opinion, only the Province is entitled to enact statutes that use the letter 'e'"...there's unlikely to be an effective legal mechanism for saying "That resolution is invalid because the constitution doesn't say that."

If there's one thing we've learned in the past few years, it's that there are plenty of people, including politicians (and even a few lawyers), who are more than happy to label something as "unconstitutional" even if they don't have a reasoned legal basis for doing so. There's no basis to assume that the label will be applied in good faith by the legislature, and no reason to believe that there would be recourse against bad faith invocations.

There Remains a Range of Problems

Executive Authority Shouldn't Override Deliberate Institutional Safeguards

As I've argued in the past, in many ways the unlimited power to direct 'provincial entities' is worse than the other Henry VIII powers: It gives direct political oversight over institutions that are supposed to be independent or insulated from political interference. This is incredibly dangerous to Rule of Law and to the integrity of our democratic institutions.

The LAA's Role In Assessing Constitutionality Is Problematic

Constitutionally, many scholars are concerned about the legislature taking on a role outside their purview within the division of powers. I've spoken about this as well, but not as eloquently as Olszynski and Bankes.

Certainly, while Provincial governments are entitled to form opinions about the relative scope of their constitutional authority - and they should, as it should inform their exercise of those powers - a legislative enactment that confers upon themselves a mandate to form such an opinion, with direct legal effect. I find the argument that this transgresses constitutional boundaries to be persuasive - but even if that argument weren't right as a matter of substantive constitutional interpretation, I'd still say legislatures shouldn't do that.

It's something of a truism that our constitution means what the courts say it means. Law isn't so simple as to say that there's a singular correct answer to every possible question, and the division of powers delegates the final word to the judicature. Sometimes the judicature comes to answers that people - myself included - may think is misguided or analytically flawed. Sometimes it picks between various reasonable approaches, and lands on an answer that some of us might think is an inferior one.

So there's a hierarchy of legal opinion and interpretation, generally. Legislatures come to their view of what the constitution allows them to do, and then the courts may have an opportunity to weigh in. If the courts disagree, then we conclude that the constitutional theory the legislature relied upon...was wrong.

The ASA creates a parallel structure, giving the legislature scope to come to a constitutional opinion that is not subject or subordinate to decisions of the judicature. It is likely that there will be cases where the LAA comes to a conclusion inconsistent with that of the SCC - and therefore that the government of Alberta will be issuing legally-effective edicts premised on a theory of the constitution that is in direct competition with the interpretation reached by the courts. Even if it's not unconstitutional, that state of affairs would delegitimize the Rule of Law.

Anticipated Federal Initiatives

This is something I'd missed, that Olszynski and Bankes caught: The 'federal initiatives' to be addressed by the ASA aren't limited to things the Feds are actually doing, but also to things that are (passive tense warning) "anticipated".

In practice, this should warn us that the ASA is going to become a full three-ring circus. Most times when Smith talks about Federal actions that she wants to use the ASA to head off, she's mischaracterizing the Feds (calling ECC enforcement officers "climate cops", for example), jumping to wildly unsubstantiated conclusions about Fed plans (like treating fertilizer reduction goals as a plan to impose coercive mandatory limits), or just flat out making stuff up (something, something, WEF).

In other words, expect to see some pretty ridiculous and speculative invocations of the ASA.

But beyond the gong show, this also serves to broaden already-expansive powers, allowing the Province to invoke sweeping emergency-esque measures not only against things the Feds ARE doing, but against things they THINK the Feds might do.

There remain a range of other issues, too, as have been discussed at length by myself and others. In short, the very premise of the ASA is deeply flawed, and the draft is an awful bill in many ways. The proposed amendments don't even begin to address the problems in this bill, and in some ways they make it worse.