Danielle Smith’s sovereignty act dreams will eventually have to confront constitutional reality

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Eric M. Adams teaches constitutional law at the University of Alberta, Faculty of Law

Alberta’s legislative assembly has passed the Alberta Sovereignty Within a United Canada Act and it will shortly become law. Now what?

Here’s the truth: No one knows, including the Alberta government. It’s like that when you venture off the map.

The journey began with Premier Danielle Smith’s campaign to lead the United Conservative Party. Eager to attract party members disgruntled with then premier Jason Kenney, Ms. Smith charted a path that promised a more combative approach to dealings with Ottawa.

Outdoing the pugilistic Mr. Kenney required a big swing. Promising to conduct federalism differently, Ms. Smith proposed the power to repel federal laws and policies the province disagreed with. The idea put her campaign on the front foot.

“No longer will Alberta ask permission from Ottawa to be prosperous and free,” Ms. Smith announced when she won the leadership. “We will not be told what we must put in our bodies in order to work or to travel. We will not have our resources landlocked or our energy phased out of existence.” Alberta sovereignty was the road to Ms. Smith’s promised land.

The idea may have won her the leadership, but as Premier, it placed her between a constitutional rock and a political hard place. Campaign dreams eventually have to confront constitutional reality.

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Alberta’s sovereignty proposal morphed in its travels from campaign applause line to the realities of law-making. The act promises that no unconstitutional actions can be taken under its terms, including regarding Indigenous and treaty rights. Another provision assures that the act will not compel individual citizens to break federal law.

What matters more than what a law claims about itself, however, is what it does. And that remains a muddle born of Alberta’s desire to conform with constitutional rules on one hand while rewriting them with the other. That messy pastiche is the constitutional headache the act now leaves to the courts.

The act is premised on the idea that Parliament passes unconstitutional laws “all the time,” as Ms. Smith often claims. The evidence simply doesn’t support that view. It’s true that a divided Alberta Court of Appeal found the federal Impact Assessment Act violated provincial jurisdiction – a case now on appeal to the Supreme Court – but other examples the province points to are most often simply policy disagreements.

Nonetheless, the act envisions the legislature passing motions expressing the opinion that a federal law, policy or suspected initiative is unconstitutional or harmful. Ms. Smith has said she hopes she never has to use the act, but she has also directed her ministers to search for federal laws and policies to target. One suspects that gripping the Alberta sovereignty hammer makes a lot of federal policies look like nails.

Once a motion passes, a minister may order a provincial entity – such as cities, towns, police forces, universities and colleges – to do something. The something is unclear because the act doesn’t say what those provincial entities might be ordered to do, although it appears likely that they could be directed to ignore or defy the targeted federal law.

Provincial entities, of course, are not inanimate objects. They are institutions comprised of people – police chiefs and officers, mayors, city councillors and administrative staff, academic presidents, provosts and deans – all of whom might soon find themselves facing a provincial order to disobey a law of the Parliament of Canada.

Whether a constitutional challenge to the act awaits such an order or precedes it will be known soon enough.

When the inevitable occurs, a court will ask whether the Constitution grants provinces the authority to enact such a law in the first place. Challengers will argue that the act’s dominant purpose is to unconstitutionally interfere in the operation of the laws of Canada. Alberta will counter that the act simply codifies existing provincial authority to direct its own affairs.

A related issue is whether the act subverts the separation of powers by muddying the fundamental distinction between courts and legislatures. The rule of law and the judicial independence of courts that sustains it are precious commodities in a constitutional democracy. What erosions to that system occur when politicians issue their own constitutional declamations, give them legal effect, and place the people working within provincial institutions the prospect of orders to violate binding federal law?

A final question goes to the heart of Canada’s constitutional relations. Federalism is a framework set in motion by constitutional rules, but its precise workings are the product of the actions of governments, the expectations of citizens and the interventions of courts.

Is Canadian federalism, despite the interdependence and collective nature of our policy problems and potential solutions, one of harder provincial borders and impregnable jurisdictional shields? Is a workable federalism one in which the federal government routinely takes provinces to court whenever that province elects to opt out of federal environmental regulation or criminal law?

The Constitution forms the principles of how we live together well. The Alberta Sovereignty Within a United Canada Act proposes a new model for that project. It will be up to voters and courts to decide whether this new terrain is a destination worth its costs.