Opinion by Special to National Post •
By Mark Mancini, Léonid Sirota and Maxime St-Hilaire
Alberta Premier Danielle Smith and Justice Minister Tyler Shandro share details on the province's sovereignty bill on Nov. 29, 2022.© Provided by National Post
There had been a great deal of apprehension about the Alberta government’s plans for a “sovereignty” law. This was followed by relief when the bill was finally introduced two weeks ago: it did not go as far as it might have. Several commentators, including legal scholars (some of them our friends), have defended its constitutionality. The bill has now been further scaled back in response to criticism.
The centrepiece of the bill as it now stands is a scheme whereby the legislative assembly, by resolution, can denounce an existing or proposed federal law or policy as unconstitutional. The cabinet can then direct individual ministers to rewrite provincial regulations (but not legislation, as in the bill’s original version) to fit the resolution. In doing so, ministers can stymie the enforcement of federal law by provincial agencies.
Defences of this scheme focus on the principle of federalism: arguing that provinces are not required to enforce federal laws or otherwise co-operate with the federal government. They also point to the legislative assembly’s involvement as a valuable democratic safeguard.
In our view, however, these arguments neglect other fundamental principles protected in Canada’s constitutional framework: the rule of law and separation of powers. Following these principles, one narrow but still significant aspect of the Sovereignty Act that has largely eluded the attention of commentators is likely unconstitutional. The bill’s overall policy may well survive judicial scrutiny, but it is nonetheless corrosive to the Canadian constitutional order for no good reason.
The specific provision whose constitutionality is most doubtful is the one concerned with judicial review of ministerial orders made under the Sovereignty Act’s authority. These orders could be called into question either because they exceed the scope of Alberta’s constitutional powers or because they exceed the authority granted the ministers by the legislature. Yet the bill provides that this review must be extremely deferential: only “patently unreasonable” orders can be declared invalid.
Rahim Mohamed: Danielle Smith's Alberta Sovereignty Act pretty awkward for the RCMP
However, a 2019 decision of the Supreme Court of Canada holds that, by virtue of the rule of law principle, compliance of these sorts of ministerial orders with the Constitution, for instance the division of powers between the federal government and the provinces, is to be reviewed for correctness. In other words, if an order is unconstitutional in the courts’ independent opinion, they will invalidate it.
On this point, the Sovereignty Act is trying to do something the Constitution does not permit, and for good reason; it would liberate ministers and administrators from constitutional constraint. Review of government acts for their constitutionality is a quintessentially judicial task, one that involves measuring these acts against the benchmark of constitutional law. When it comes to the division of powers between the federal government and the provinces, consistent interpretation of the Constitution, which the judiciary provides, is all the more important. Left without judicial supervision, each level of legislature and government would be driven by self-interest to extend its powers at the other’s expense, creating conflict and confusion for citizens.
The question of what degree of deference can be required in a judicial assessment of whether an order complies with the law that purportedly authorizes it is murkier. As the law now stands, the legislature may well be able to require considerable deference. Yet the rule of law principle and the Constitution’s provisions enshrining the role of the superior courts, such Alberta’s Court of King’s Bench, mean this deference must not be tantamount to judicial review being ousted altogether. Courts must still be able to ensure that there is some plausibility to the claim that an order is authorized by the law.
Yet the Sovereignty Act makes judicial review of ministerial orders difficult if not impossible. This is because it does virtually nothing to circumscribe the powers ministers can exercise upon the passage of legislative assembly resolution. The limits come not from the bill itself, but from the resolution at issue.
This is a problem. Judicial review is concerned with whether government complies with the law, yet a resolution of the assembly is not law. It is a statement of opinion, unlikely to be drafted with the precision with which laws usually are, and as such can hardly provide the controls necessary on executive discretion, further complicating the courts’ task of review.
But the Sovereignty Act’s unusual and partly unconstitutional distortion of judicial review of government action is only a symptom of its broader tendency to bypass the courts in favour of political institutions. As we have seen, in addition to restricting judicial review of ministerial orders, the bill calls upon the legislative assembly to determine whether federal laws or policies are unconstitutional. This compromises not only the rule of law but also separation of powers.
Canada’s constitutional system, like those of other federations, relies on an independent judiciary upholding the division of powers between the federal government and the provinces. This is because the Constitution is a legal instrument ― indeed, the “supreme law of Canada” ― and its interpretation is a legal, rather than a political, question.
Such questions should be decided by legally trained and independent judges, not politicians. If Alberta’s government doubts the constitutionality of a federal law, it already can refer this question to the Alberta Court of Appeal. If unsatisfied with that court’s decision, it can appeal to the Supreme Court of Canada. And if it loses there, as it did in relation to the constitutionality of the federal carbon tax regime, it must accept the loss ― subject to seeking a constitutional amendment.
Even an analogy with the Canadian Charter of Rights and Freedoms’ notwithstanding clause cannot shield the Sovereignty Act. Of course, there is no equivalent provision allowing legislatures to “override” the constitutional division of powers, and rightly so. An optimistic interpretation of the notwithstanding clause is that it allows legislatures to impose their own answers to the complex questions of morality and policy at stake in disputes about rights. Whatever the validity of this view in relation to rights, it is simply inapposite to the purely legal disputes about the Constitution’s division of powers provisions.
The great Victorian constitutional scholar A.V. Dicey, who popularized the phrases “parliamentary sovereignty” and “rule of law,” had a warning that the proponents of Alberta’s Sovereignty Act would do well to heed. “A federal system,” he wrote, “can flourish only among communities imbued with a legal spirit and trained to reverence the law.” Without these, it collapses in political recrimination.
But Dicey warned, also, of the danger that a supreme court entrusted with interpreting a federal constitution will “be swayed by political feeling and by reasons of state,” for “the moment that this bias becomes obvious a court loses its moral authority.” Each of us have criticized Canadian courts vehemently when they have gone astray in this way, and we must all be alert to this peril. This is not the place to discuss whether such improper considerations have affected the Supreme Court of Canada, for example, in its opinion on the carbon tax. Suffice it to say that those who defend judicial authority need also to be alert to this peril. But this is no reason to dilute or oust judicial review altogether.
Special to National Post
Mark Mancini is a PhD student at the Peter A. Allard School of Law, University of British Columbia.
Maxime St-Hilaire is Associate Professor at Faculty of Law of the Université de Sherbrooke.
Leonid Sirota is Associate Professor at the School of Law of the University of Reading.
However, a 2019 decision of the Supreme Court of Canada holds that, by virtue of the rule of law principle, compliance of these sorts of ministerial orders with the Constitution, for instance the division of powers between the federal government and the provinces, is to be reviewed for correctness. In other words, if an order is unconstitutional in the courts’ independent opinion, they will invalidate it.
On this point, the Sovereignty Act is trying to do something the Constitution does not permit, and for good reason; it would liberate ministers and administrators from constitutional constraint. Review of government acts for their constitutionality is a quintessentially judicial task, one that involves measuring these acts against the benchmark of constitutional law. When it comes to the division of powers between the federal government and the provinces, consistent interpretation of the Constitution, which the judiciary provides, is all the more important. Left without judicial supervision, each level of legislature and government would be driven by self-interest to extend its powers at the other’s expense, creating conflict and confusion for citizens.
The question of what degree of deference can be required in a judicial assessment of whether an order complies with the law that purportedly authorizes it is murkier. As the law now stands, the legislature may well be able to require considerable deference. Yet the rule of law principle and the Constitution’s provisions enshrining the role of the superior courts, such Alberta’s Court of King’s Bench, mean this deference must not be tantamount to judicial review being ousted altogether. Courts must still be able to ensure that there is some plausibility to the claim that an order is authorized by the law.
Yet the Sovereignty Act makes judicial review of ministerial orders difficult if not impossible. This is because it does virtually nothing to circumscribe the powers ministers can exercise upon the passage of legislative assembly resolution. The limits come not from the bill itself, but from the resolution at issue.
This is a problem. Judicial review is concerned with whether government complies with the law, yet a resolution of the assembly is not law. It is a statement of opinion, unlikely to be drafted with the precision with which laws usually are, and as such can hardly provide the controls necessary on executive discretion, further complicating the courts’ task of review.
But the Sovereignty Act’s unusual and partly unconstitutional distortion of judicial review of government action is only a symptom of its broader tendency to bypass the courts in favour of political institutions. As we have seen, in addition to restricting judicial review of ministerial orders, the bill calls upon the legislative assembly to determine whether federal laws or policies are unconstitutional. This compromises not only the rule of law but also separation of powers.
Canada’s constitutional system, like those of other federations, relies on an independent judiciary upholding the division of powers between the federal government and the provinces. This is because the Constitution is a legal instrument ― indeed, the “supreme law of Canada” ― and its interpretation is a legal, rather than a political, question.
Such questions should be decided by legally trained and independent judges, not politicians. If Alberta’s government doubts the constitutionality of a federal law, it already can refer this question to the Alberta Court of Appeal. If unsatisfied with that court’s decision, it can appeal to the Supreme Court of Canada. And if it loses there, as it did in relation to the constitutionality of the federal carbon tax regime, it must accept the loss ― subject to seeking a constitutional amendment.
Even an analogy with the Canadian Charter of Rights and Freedoms’ notwithstanding clause cannot shield the Sovereignty Act. Of course, there is no equivalent provision allowing legislatures to “override” the constitutional division of powers, and rightly so. An optimistic interpretation of the notwithstanding clause is that it allows legislatures to impose their own answers to the complex questions of morality and policy at stake in disputes about rights. Whatever the validity of this view in relation to rights, it is simply inapposite to the purely legal disputes about the Constitution’s division of powers provisions.
The great Victorian constitutional scholar A.V. Dicey, who popularized the phrases “parliamentary sovereignty” and “rule of law,” had a warning that the proponents of Alberta’s Sovereignty Act would do well to heed. “A federal system,” he wrote, “can flourish only among communities imbued with a legal spirit and trained to reverence the law.” Without these, it collapses in political recrimination.
But Dicey warned, also, of the danger that a supreme court entrusted with interpreting a federal constitution will “be swayed by political feeling and by reasons of state,” for “the moment that this bias becomes obvious a court loses its moral authority.” Each of us have criticized Canadian courts vehemently when they have gone astray in this way, and we must all be alert to this peril. This is not the place to discuss whether such improper considerations have affected the Supreme Court of Canada, for example, in its opinion on the carbon tax. Suffice it to say that those who defend judicial authority need also to be alert to this peril. But this is no reason to dilute or oust judicial review altogether.
Special to National Post
Mark Mancini is a PhD student at the Peter A. Allard School of Law, University of British Columbia.
Maxime St-Hilaire is Associate Professor at Faculty of Law of the Université de Sherbrooke.
Leonid Sirota is Associate Professor at the School of Law of the University of Reading.
No comments:
Post a Comment