Eric M. Adams teaches Canadian constitutional law at the University of Alberta Faculty of Law.
The government of Alberta recently launched splashy ads in a number of Canadian cities. Eye-catching billboards in Toronto and Vancouver, and digital and print ads in local newspapers, entice residents priced out of exorbitant housing markets to consider the attractions of Alberta’s vibrant economy, high wages, affordable housing and dynamic cities.
Canadians moving to Edmonton and Calgary might find themselves surprised by something else when they arrive: the constitutional confusions of Alberta’s sovereignty movement. For a contingent of Alberta Conservatives, it is no longer the West Wants In, but rather Alberta Wants Canada Out.
In the campaign to lead the United Conservative Party, which effectively selects the next premier, Danielle Smith’s cagey promise to enact an Alberta sovereignty act has dominated proceedings.
The proposed but still undrafted law, Ms. Smith explains, would enable Alberta to function as “a nation within a nation.” Putting substance behind the symbolism, the law would allow the legislature to declare a constitutional violation when the government believed Parliament had invaded Alberta’s jurisdiction or infringed on the Canadian Charter of Rights and Freedoms. These provincial declarations of federal unconstitutionality, Ms. Smith suggests, would render those federal laws of no force or effect in Alberta. She proposes, in other words, that Alberta possess the power to stop the laws of Canada, such as provisions of the Criminal Code, at its borders. It is time “to see our province stand up to Ottawa, restore our constitutional rights, and take control of our future,” Ms. Smith says.
Most of her opponents for the UCP leadership, and Premier Jason Kenney, have denounced the plan as catastrophically unconstitutional, politically unwise and economically foolish. That may not matter if Ms. Smith wins and takes control of Alberta’s legislative agenda. What will matter very much is the resiliency of the Canadian constitutional arrangements she imagines can so easily be swept aside.
Of course, provincial governments can challenge the constitutionality of any federal law by initiating a reference case to their court of appeal. It happens all the time. What our constitutional separation of powers does not allow is for either federal or provincial governments to assume the role of those courts and grant themselves the authority to issue declarations of constitutional invalidity. In Canada, Parliament and legislatures are presumed to pass laws that comply with the Constitution, and such laws remain in effect until an independent court of law, after hearing the evidence, listening to contrary views, and examining the Constitution and its precedents, declares otherwise. No provincial law can change that constitutional fact.
A sovereignty act’s upending of the separation of powers would equally undermine another cornerstone of Canadian constitutional law: federalism. Living under a federal constitution means being governed by the laws of more than one level of government. If federalism is the reconciliation of diversity and unity, as the Supreme Court of Canada has said, then both sides of that equation – national unity and provincial diversity – can co-exist only when the democratic laws of provinces and Parliament alike govern our affairs, prohibit the impermissible, and direct our legal responsibilities.
Whatever unstable, patchwork quilt of provincially sanctioned national laws is imagined by an Alberta sovereignty act – one in which a citizen or police officer would not know whether she is bound by a law enacted by Parliament but declared unconstitutional by her province – it is fundamentally inconsistent with the basic tenets of federalism.
Some proponents of a sovereignty act know all that. In an angry era of politics, there is a risk that proposals to break the Constitution and its fundamental principles move from the margins to mainstream. It’s a dangerous game and one we allow to grab hold of Canadian politics at our peril.
It’s true that the Canadian judicial system will continue to stand in the way of unconstitutionality, but it would be better if we insisted that political actors channel their policy disagreements – the stuff of healthy democratic politics – into the wide expanses of our foundational constitutional commitments to democracy, an independent court system, federalism and the rule of law. And better too if the members of Alberta’s legislature, if faced with a sovereignty act, remember their oaths to uphold the Constitution.
If Alberta does want the power to disregard federal laws, it will need a constitutional amendment or an independence vote. That and a different set of billboards.