AN ELECTION!!!
Author of the article: Richard Mailey
Publishing date:Dec 05, 2022 •
Author of the article: Richard Mailey
Publishing date:Dec 05, 2022 •
Premier Danielle Smith and Justice Minister Tyler Shandro share details on the Alberta sovereignty bill on Nov. 29.
PHOTO BY GREG SOUTHAM /Postmedia
On the eve of its introduction, we could only guess if the Alberta Sovereignty Within a United Canada Act would be a damp squib or a challenge to the fundaments of our constitutional order. We now know that the answer seems to be the latter, which requires the attention of all Canadians — not just Albertans.
While the proposed Sovereignty Act poses a profound challenge to numerous constitutional principles, its sharpest affront is seemingly to the separation of powers, which accords a distinct function to each of the three main branches of government — the legislature, executive, and judiciary.
The first aspect of this affront lies in the fact that the act would give the Alberta legislature a quintessentially judicial power: the power of deciding when a law should be (effectively) set aside for violating the Constitution.
To explain this point: Under the Canadian Constitution, each level of government has jurisdiction to legislate on specific matters, with the courts stepping in occasionally to ensure that they stay within their respective fields. If a provincial government believes that the feds have overstepped in this regard, it can ask its court of appeal to issue an opinion on the suspect law’s constitutionality. If the provincial government is dissatisfied with the court’s answer, it can then appeal to the Supreme Court of Canada for a final verdict.
If passed, the Sovereignty Act would allow the Alberta legislature to short-circuit this conventional process by letting the government instruct provincial authorities to cease enforcement of a federal law that has not been declared unconstitutional by a court. Perhaps more troublingly, the bill also purports to give the government an even more expansive power to stop the provincial enforcement of federal laws that it regards as fully legal and constitutional, but contrary to Albertans’ interests. In this respect, the Alberta government is seemingly claiming the power to not only resolve jurisdictional disputes on constitutional grounds (again, a quintessentially judicial power), but on pretty much whatever grounds it pleases.
But there’s more. In addition to giving the provincial legislature quintessentially judicial powers, the act initially also included a clause (which the government is thankfully now reconsidering) that would empower the provincial cabinet to amend primary legislation to deal with perceived federal overreach. While the empowerment of the executive to legislate in this way is often defensible during public emergencies, it is an extraordinary step to take outside this context — a step that is impossible to reconcile with our constitutional commitment to the separation of legislative and executive power.
These are just a few of the constitutional issues that have been flagged after the publication of the bill, but such issues don’t necessarily prevent a policy from attaining and maintaining the force of law. What, then, stands in the way of a bill that has so many alleged constitutional defects?
The Constitution offers several answers to this question, all of which involve the empowerment of actors who can hold the government to account. Leaving aside examples of this that are themselves constitutionally problematic (refusal of royal assent, federal disallowance), there are at least two key accountability mechanisms that are available here.
The first is for the federal government to refer the bill to the Supreme Court of Canada, which could issue an advisory opinion on its constitutionality. The second, by contrast, is the upcoming provincial election, which provides an opportunity for an oft-forgotten constitutional actor — the people — to pass direct judgment on the government and indirect judgment on the Sovereignty Act.
While the latter option is particularly important in a democracy, the two paths aren’t mutually exclusive. Indeed, even if the UCP are unsuccessful in the upcoming provincial elections, there would still be value in having some guidance from our highest court on what provinces can and can’t do when they perceive federal overreach.
The processes used to answer such questions say a lot about a society, and the combination of electoral and judicial input would reassert our status, I suggest, as a true democracy, in which ultimate decisions emerge from a diverse chorus of institutional and public voices.
Richard Mailey is director of the Centre for Constitutional Studies, University of Alberta.
On the eve of its introduction, we could only guess if the Alberta Sovereignty Within a United Canada Act would be a damp squib or a challenge to the fundaments of our constitutional order. We now know that the answer seems to be the latter, which requires the attention of all Canadians — not just Albertans.
While the proposed Sovereignty Act poses a profound challenge to numerous constitutional principles, its sharpest affront is seemingly to the separation of powers, which accords a distinct function to each of the three main branches of government — the legislature, executive, and judiciary.
The first aspect of this affront lies in the fact that the act would give the Alberta legislature a quintessentially judicial power: the power of deciding when a law should be (effectively) set aside for violating the Constitution.
To explain this point: Under the Canadian Constitution, each level of government has jurisdiction to legislate on specific matters, with the courts stepping in occasionally to ensure that they stay within their respective fields. If a provincial government believes that the feds have overstepped in this regard, it can ask its court of appeal to issue an opinion on the suspect law’s constitutionality. If the provincial government is dissatisfied with the court’s answer, it can then appeal to the Supreme Court of Canada for a final verdict.
If passed, the Sovereignty Act would allow the Alberta legislature to short-circuit this conventional process by letting the government instruct provincial authorities to cease enforcement of a federal law that has not been declared unconstitutional by a court. Perhaps more troublingly, the bill also purports to give the government an even more expansive power to stop the provincial enforcement of federal laws that it regards as fully legal and constitutional, but contrary to Albertans’ interests. In this respect, the Alberta government is seemingly claiming the power to not only resolve jurisdictional disputes on constitutional grounds (again, a quintessentially judicial power), but on pretty much whatever grounds it pleases.
But there’s more. In addition to giving the provincial legislature quintessentially judicial powers, the act initially also included a clause (which the government is thankfully now reconsidering) that would empower the provincial cabinet to amend primary legislation to deal with perceived federal overreach. While the empowerment of the executive to legislate in this way is often defensible during public emergencies, it is an extraordinary step to take outside this context — a step that is impossible to reconcile with our constitutional commitment to the separation of legislative and executive power.
These are just a few of the constitutional issues that have been flagged after the publication of the bill, but such issues don’t necessarily prevent a policy from attaining and maintaining the force of law. What, then, stands in the way of a bill that has so many alleged constitutional defects?
The Constitution offers several answers to this question, all of which involve the empowerment of actors who can hold the government to account. Leaving aside examples of this that are themselves constitutionally problematic (refusal of royal assent, federal disallowance), there are at least two key accountability mechanisms that are available here.
The first is for the federal government to refer the bill to the Supreme Court of Canada, which could issue an advisory opinion on its constitutionality. The second, by contrast, is the upcoming provincial election, which provides an opportunity for an oft-forgotten constitutional actor — the people — to pass direct judgment on the government and indirect judgment on the Sovereignty Act.
While the latter option is particularly important in a democracy, the two paths aren’t mutually exclusive. Indeed, even if the UCP are unsuccessful in the upcoming provincial elections, there would still be value in having some guidance from our highest court on what provinces can and can’t do when they perceive federal overreach.
The processes used to answer such questions say a lot about a society, and the combination of electoral and judicial input would reassert our status, I suggest, as a true democracy, in which ultimate decisions emerge from a diverse chorus of institutional and public voices.
Richard Mailey is director of the Centre for Constitutional Studies, University of Alberta.
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