Jen Gerson: The Sovereignty Act: Zen Koan, bad joke, or a prelude to chaos?
This is either an incredibly dumb ploy, or an incredibly smart political gambit.
By: Jen Gerson
I have to be honest: my first reaction to reading Alberta's Bill 1, the Alberta Sovereignty Within A United Canada Act, was laughter. Just a deep, body shaking chortle.
It's so dumb, so utterly, obviously bizarre that it doesn't even read like a real bill.
But I'm no legal expert, so I grabbed Ian Holloway, dean of the law school at the University of Calgary, to give me his impressions of this hot garbage.
"If I were grading one of my first-year law students on the actual writing of the bill, I would give them a C-, at best," he said. "It's so poorly drafted, and so riddled with internal contradictions. It's trying to thread a needle that is very hard to be threaded."
It’s so confusing that the government issued a clarification about the legislation on Wednesday.
“In no way does the Sovereignty within a United Canada Act permit cabinet to unilaterally amend legislation without those amendments being first authorized by the legislative assembly. If there is any dispute as to whether or not cabinet amended legislation outside of the specific recommendations contained in the resolution, including any amendments by the legislative assembly to the resolution, such actions would still be subject to both judicial review as well as review by the legislative assembly itself.”
Got that? Good, good. I assure you, you are not the only person who read that several times and was seized with the concern that she might be suffering a stroke.
It's almost impossible to take the Sovereignty Act at face value and, frankly, we shouldn't. There are two major issues at play here: what is actually in this legislation, and the political implications of what is in it. The latter is more salient, and I'll get to it in a minute.
But first: I, along with many others, have long pointed out that the crucial problem with something like the Sovereignty Act is that it would be either redundant or unconstitutional. That is, either such an act would blandly re-state what is already enshrined in our constitution, or it would attempt to make up new rules on the fly, and thus be struck down by the broader legal precedents to which we are all subject. Somehow — and this takes some doing — Bill 1 as presented manages to be both. It states its respect for the constitution while defying it, encourages civil disobedience while denying it is authorizing the same. It doesn't make any goddamn sense.
But let's start from the beginning: in our federation, there are clear areas of jurisdiction, provincial and federal. The federal government is in charge of some things, like running a military and passing criminal law. The provincial governments have their own sphere of influence — education, health care and managing natural resources, for example.
As a practical matter, there is and always has been some gray area and competition. Enforcement of criminal law is one of these zones. We can recall, for example, when British Columbia stated that it would no longer enforce or prosecute laws against marijuana dispensaries, a flagrant disregard for federal laws on cannabis at the time. That doesn’t mean that federal jurisdiction over criminal law doesn’t exist; rather, it simply means that in the real world, sometimes these questions get murky.
In areas where jurisdiction is contested, the federal government could pass a law or regulation, and the affected province could then respond by suing. Often, the aggrieved party seeks an injunction to stall enforcement of the new rule until the courts decide which entity has the proper authority over the matter.
This relationship works both ways, by the way. A province could pass a law that encroached onto federal jurisdiction, forcing Ottawa to sue. Regardless, this is how a constitutional system like ours works. Parliaments pass laws and regulations, and other orders of governments, aggrieved parties and individuals challenge those laws and regulations in an independent court system.
Now, the Sovereignty Act tries to short-circuit that legal process. Once a resolution is invoked and passed through the provincial parliament, extraordinary powers will be arrogated to cabinet to amend Alberta statutes to manage federal incursions deemed unconstitutional or “harmful” to Albertans.
And if you're asking yourself: "Wait, can a province actually do that?,” the answer is, uh, no. It probably cannot.
That's what likely makes the act so problematic: Not that Smith wants the federal government to butt out of the province’s oil and gas sector. But rather that the Sovereignty Act tries to circumvent the role of the courts in favour of a near-dictatorial grab for executive power.
Which is why this act can’t be taken at face value solely as a piece of legislation. One cannot just hop and skip over this whole rule of law business just because it's inconvenient and your feelings are hurt. If it were actually enacted, the act would be challenged at court and it would almost certainly fail.
That doesn't mean the act will do no harm. Before it is struck down, the law could, hypothetically, put some provincial civil servant in a terrible position, forced to decide between enforcing a federal statute or following a provincial dictate to not enforce said statute.
But even that situation gets murky, because the act is chock full of clauses like this: "Nothing in this Act is to be construed as (a) authorizing any order that would be contrary to the Constitution of Canada, (b) authorizing any directive to a person, other than a provincial entity, that would compel the person to act contrary to or otherwise in violation of any federal law."
If that clause is making you scratch your head and ask: "wait, huh?" then you've reached the Zen Koan state of non-thought that is required to move us into the next section: the bill's political implications.
There are two possibilities here.
Either Smith et al. don't really understand what they've written, they don't get the constitutional implications of their bill, and they genuinely imagine that this has some chance of holding up to a court challenge. This is a depressing possibility.
Or they know very well that this is a fake act whose aim is solely political.
It’s possible, just possible, that this is legislation intended to sound tough to a legally unsophisticated base of Smith supporters. It's also riddled with these pro-constitutional clauses and phrases, like the one quoted above, which makes the thing seem passable to more moderate UCP voters. As Supreme Court challenges typically take years, both groups will be duped long enough to get past the next election, which is all Smith really needs. We'll all have moved onto the next political shitshow by the time the court laughs the Sovereignty Act onto its ass.
But there's a bigger game here, too.
"To my mind, this is about as clearly an unconstitutional gambit as I've ever seen in my professional lifetime. The premier is engaging in a game of political chicken," Holloway told The Line. “This is not really about asserting greater sovereignty for Alberta, but rather winning the election and goading the federal government into saying or doing something intemperate."
If Justin Trudeau were to attempt a disallowance, for example, he would be handing Smith all the political leash she needs to portray Alberta as the longstanding victims of Ottawa's oppression. This kind of grievance politics has always served the UCP well once the writ drops.
If the NDP opposition leader aligns herself with Trudeau and the federal government, all the better for Smith. The more Twitter freaks out, the more Smith must be on to something, right? “There's our gal, showing Ottawa we won't be pushed around, right? Right…”
Notley opposed the Sovereignty Act before she had read it, just as I bet Smith had that graphic drawn up before the bill had been written.
Earlier this week, I wrote a Globe column noting that Smith's aggressive rhetoric was not matched by her actual policy. She puts on a great show, but her reforms and announcements to date have been either entirely mainstream, or painfully theatrical. Of course, that's so far. She is walking a tightrope, trying to sound tough on longstanding and legitimate complaints of Albertans, without alienating the moderate voters she will actually need to win an election. I don't know how long she can continue this. Nor whether it is her goal to maintain such a walk if she is elected.
According to some, the Sovereignty Act belies this thesis. Here is evidence that she is truly extreme on policy, right?
To be honest, I'm not sure that it does.
Can legislation that is so amateurish and ridiculous be considered an actual policy? Or is the show the purpose of the thing? Own the Libs, win the province. Is this a troll, or is Smith keeping Albertans fed on a diet of failed federal clashes, disappointment, and grievance to assure perpetual returns for the UCP?
If Smith’s goal were merely to assert more power for Alberta, there are already a raft of proposals that she could, and may well, invoke: a provincial pension fund, a police force, or tax collection. None of these require a “Sovereignty Act Within A United Canada” to implement.
If I wanted to get really dark, I would note that the original concept of this proposal was very much not the outcome of a “United Canada” at all. That last part was only appended to the name of the act very recently, when Smith tried to soften her language around this bill to make it more palatable for the majority of Albertans who also consider themselves very much Canadian. Can we take this legislation at face value, and assume mere incompetence? Or is the Sovereignty Act a creature of bad faith and malice, legislation doomed to fail in the service of stoking a nascent seccession movement? Smith’s opponents need to figure that out, and quick.
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