Rainer Knopff: Can Alberta’s equalization gambit simply be ignored?

Nothing I’ve said settles the question whether Alberta’s equalization gambit is a good idea.

By: Rainer Knopff

To ignore or not to ignore, that is the question being asked about Alberta’s referendum to remove equalization from the constitution.

It is the wrong question. Alberta law requires a referendum to be held before “a resolution authorizing an amendment to the Constitution of Canada is voted on by the Legislative Assembly." Why a legislative resolution? Because that is the constitutionally prescribed way to "initiate" a constitutional amendment. The right question is thus whether other governments could legally ignore a follow-up legislative resolution after the equalization referendum.

The answer? They cannot, because of the “duty to negotiate" fabricated by the Supreme Court in the 1998 Secession Reference.

Wait! Stop the eye-rolls and hear me out. We are not talking here about the famous duty to negotiate upon a clearly affirmative answer to a clear secession question — I agree that this obligation is triggered only by secession referendums and has no legal relevance to Alberta's equalization gambit. Bluntly, provincial referendums cannot constitutionally “initiate” non-secession amendments.

We're talking instead about the Court's less noticed but equally important conclusion that the resolution-based "right to initiate constitutional change" — any change requiring multilateral governmental consent — "imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions." The Court added that although the elected representatives responsible for constitutional amendments "may take their cue from a referendum," they cannot avoid their primary accountability for the legal formalities of constitutional initiation. Immediately after thus establishing the legitimacy of the sequence contemplated by Alberta law — a resolution cued by a referendum! — the Court repeats that "the corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table."

True, the Court also finds that the duty to negotiate can be independently triggered by a secession referendum, but this appears as an exception to the broader resolution-based duty. As Andrew Coyne correctly observed in 2017, "the 'duty to negotiate' in the case of Quebec's secession is essentially treated as a subset of the general duty that applies to any constitutional amendment, and any province." It certainly applies to Alberta’s referendum-cued equalization resolution. That resolution can be ignored only by governments prepared to snub the Supreme Court's clear instructions to "come to the negotiating table."

But let’s be equally clear that the duty to negotiate — whether in response to a secession referendum or a legislative resolution — is pure judicial invention. "The Court pulled [it] out of rarefied air," wrote constitutional scholar John Whyte at the time. Patrick Monahan similarly saw the Court as "legislat[ing] a constitutional obligation" based entirely on its "own conception of what would be appropriate." Andrew Coyne described the duty as "something the court made up."

Why did the Court feel compelled to make up a new constitutional duty? Because, as Peter Russell demonstrated long ago, the "pressure on [sports] umpires or referees to 'even things up'” is also felt by the Supreme Court acting as the umpire of Canadian federalism. Having resolutely insisted that Quebec could legally secede only via multilateral constitutional amendment — that the province could not do so unilaterally — the Court evened things up by requiring other governments to negotiate the required amendment(s) in response to a clear secession referendum. Obviously reluctant to create a duty that benefited only (or mainly) Quebec, the Court further evened things up by concocting the broader obligation to negotiate resolution-based amendments, such as Alberta’s equalization gambit.

Part of what the Court evens up, argues Russell’s classic article, are opportunities for "the political use of legal resources.” In Russell’s terms, the resolution-based duty creates a "constitutional capacity" that changes the "bargaining strength and position of governments in negotiating policy arrangements or constitutional change." Without this duty, one would expect governments serious about achieving an amendment to negotiate the required consent before one of them passed a resolution "initiating" the formal process. If there were no prospect of sufficient prior agreement, there'd be no point in proceeding to a futile resolution, which opposed governments could freely ignore.

With the duty to negotiate in place, by contrast, an objectively futile resolution can be a valuable political tactic, as Alberta's equalization gambit shows. By his own regular admission, Premier Kenney is not serious about actually removing equalization from the constitution. The Senate, the House of Commons, and seven provinces having at least 50 per cent of the Canadian population must agree to achieve the proposed amendment, and Kenney concedes that this won't happen. The point is to exercise political leverage by forcing Ottawa and other provinces "to come to the negotiating table" in order to discuss the broader fairness of fiscal federalism.

Some governments will no doubt resist ranging so far beyond the proposed amendment, and one can imagine some leaving the conference table (or ending their Zoom participation) as soon as the impossibility of successful amendment has been confirmed. But such political moves would be just as subject to political calculation and risk as is the equalization gambit itself. The political use of legal resources is a fraught game, with success and failure lying in the eye of the beholder.

Nothing I’ve said settles the question whether Alberta’s equalization gambit is a good idea. People I respect are on all sides of the question. My objective here is simply to lay to rest two fallacies that have unnecessarily clouded the debate: first, that referendums on amendment issues other than secession trigger the duty to negotiate established by the Secession Reference — they do not; second, that the 1998 judgment therefore has no bearing on Alberta’s equalization gambit — it does!  

Rainer Knopff is a professor emeritus of political science at the University of Calgary.

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