Challenging the Constitutional Order: Where Does the Alberta Sovereignty Within a United Canada Act Fit In?
Challenges to the existing constitutional order in Canada are not new. My use of the phrase “constitutional order” highlights that one of the reasons (although not the only one) for these challenges has been to create chaos or (more mildly) to disrupt the constitutional status quo. Here I refer to several recent examples of the how governments and individuals and groups may challenge the constitutional order and consider where the amended Alberta Sovereignty Within a United Canada (see amendments here) fits along the continuum.
To be clear, when I refer to challenging the constitutional order, I do not mean bringing challenges to court based on division of powers, the Canadian Charter of Rights and Freedoms or general constitutional principles or norms. Whether one agrees with these challenges or their outcomes, they are following accepted (and constitutional) processes. Rather, I’m thinking about blatantly (and often loudly but sometimes secretly) ignoring constitutional requirements or making it clear that these actors intend to upend the constitutional process, structure or expectations.
EXAMPLES OF CHALLENGES
- Blatant Challenges
Although this post is primarily about Canada, among the most blatant challenges was the attack on the US Capitol on January 6, 2021to prevent the constitutionally required process for certifying the 2020 presidential election and make Donald Trump president, despite his having lost the 2020 election. Various other actions (false electors and President Trump threatening election officials if they did not change the election results) contributed or encouraged this violent confrontation on January 6th.
More recently, former President Trump, continuing to challenge the 2020 result, posted on his Social Truth platform that all rules, including those in the constitution, would need to be “terminated”. (As so often, he subsequently denied saying this; however, his words, having been tweeted to many, speak for themselves.)
While these are dangerous, it is even more dangerous to the constitutional order that elected officials downplay these provocations. For example, Republicans who called the January 6th attack equivalent to a tourist visit to the Capitol or others who have treated Trump’s recent post as out of context or just the kind of thing he says.
The stated intention of some leaders of the so-called “freedom convoy” (the Canada Unity group) to replace the elected government with the Senate, the Governor General and representatives of various citizen groups or communities as set out in a Memorandum of Understanding also illustrates a blatant challenge to the existing constitutional order. The non-violent nature of this particular endeavour (carved out from the so-called “freedom convoy” more generally) does not make it less blatant. For some reason, the instigators of this non-violent coup thought the Senate and the Governor-General would willingly ignore the constitutional process to establish a governing body to rid the country of all vaccine mandates, among other things. (Eventually, Canada Unity disowned the Memorandum.)
- Challenges Dressed Up as Law
The refusal of certain MNAs in Quebec to take the oath of office to King Charles III is an example of ignoring the constitution, but justifying it unilaterally through legal process. The Speaker of the National Assembly did not permit these MNAs to sit in the Assembly (some took the oath privately).
Section 15 of the Act respecting the National Assembly states, “No Member may sit in the Assembly before making the oath provided in Schedule I.” Schedule I requires the following oath: “I, (name of the Member), declare under oath that I will be loyal to the people of Québec and that I will perform the duties of Member honestly and justly in conformity with the constitution of Québec.” The MNAs do not object to this oath.
They do object to the requirements in Schedule 5 of the Constitution Act, 1867 (CA, 1867), which reads as follows:
I A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.
Note. — The Name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with proper Terms of Reference thereto.
This oath is required by section 128 of the CA, 1867:
128 Every Member … of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act;…
This is a constitutional provision, which applies to members of the Senate and the House of Commons, reflects the monarch’s constitutional status as the head of the Canadian state (see section 9 of the CA, 1867: “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.”).
The National Assembly has now enacted an addition to the CA, 1867: “1. The Constitution Act, 1867 is amended by inserting the following section after section 128: ‘128Q.1. Section 128 does not apply to Quebec.'” (see CBC story here).
Enacting a unilateral amendment to the constitution when the amendment is to a provision that affects all jurisdictions in Canada is unlikely to be constitutional; however, it becomes a done deal unless it is challenged in the courts. This is similar to the amendment Quebec has enacted in relation to the French language. (For different views on this, see CBC story here.)
(I wrote a Slaw post about the amendment relating to Bill 96, adding two new provisions to section 90 of the Constitution Act, 1867.)
The justification, tenuous at best, especially in relation to the oath, is that these amendments are amendments to the provincial constitution of Quebec. Provinces have the authority to amend their provincial constitution. The oath, however, is meant to show that all elected officials have sworn allegiance to the Canadian state. It does not affect only Quebec.
When I became a Canadian citizen, I admit I swore an oath to Queen Elizabeth II reluctantly, but now better appreciating the role of a separate head of state, I echo the comments Diane Francis made on this point: although she was not a monarchist, when she became a citizen, she “realized the oath wasn’t about upholding the monarchy or pledging fealty to a King or Queen. It was symbolic, and about swearing allegiance to Canada’s laws and constitution which [she] gladly did.” The MNAs, of course, either misunderstand the significance of the oath or worse, do not want to be loyal to Canada. Yet it is unlikely that anything will come of this failure to abide by this constitutional requirement.
- It’s Legal (and Constitutional), but Should You Do It?
Another way challenges to the constitution can occur is when a government goes against the
“normal” or “expected” way of applying it. These actions may be perfectly legal; but they are not what is “supposed” to happen. A good example has been the invocation of section 33 of the Charter, the “notwithstanding” or “override” clause:
33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 [fundamental freedoms] or sections 7 to 15 [legal and equality rights] of this Charter.
While commentators (and politicians who were involved in the patriation) assert(ed) that section 33 should be used only in the rare case, nothing in the Charter itself says that. It is the overall Charter’s promise and guarantee of rights, the statement of the Constitution as the supreme law under section 52 of the CA, 1982, that guides the use of section 33, a remnant of parliamentary supremacy. Its application is limited to five years and the remedy for misuse is a political one — if voters do not approve its use, they can vote against the government at the next election — governments with a majority prepared to weather criticism, even from other members of the legislature, are free to invoke it and to reinvoke it after five years should they retain power.
Quebec’s initial use of section 33 in a wholesale manner seemed to be relatively quietly accepted because it was recognized as a protest against Quebec’s non-signing of the Constitution Act, 1982 (CA, 1982) including the Charter itself. More recent use, however, has been viewed differently. Applying section 33 to immunize challenges to Bill 21, which prohibits the wearing of religious symbols by certain public servants while carrying out their duties, is a deliberate decision to deny minorities access to certain rights under the Charter. (On Bill 21, see my earlier comments in my Slaw posts here and here.)
Although the inclusion of section 33 in Quebec’s Bill 21 did create controversy, especially outside Quebec, many people in the province supported the legislation. Not so the Conservative government’s use in Ontario on three occasions, particularly the most recent. Premier Ford’s resort to section 33 can be viewed as the government’s thumbing its nose at constitutional expectations or norms.
When the Minister of Education used it to immunize Bill 28, prohibiting education workers from striking and imposing a contract on them, from Charter challenges (for story, see CBC News here), the union opposition countered it with full force. (Unions were not the only ones who opposed it, but their concerted resistance made the difference.) Faced with the possibility of a general strike, the Minister withdrew the legislation (see here). (CUPE members have voted on and accepted the subsequent offer from the government: see CTVNews story here.)
Regardless of this outcome, the government did use section 33 as a club over the education workers’ heads with the intention of denying them their rights, even before they exercised them. And repeal of the legislation was conditioned on their returning to work after they had begun a so-called “protest strike” against Bill 28. And so, although Ford’s use of section 33 was “legal”, his use nevertheless illustrated how it can be abused despite that.
Nor can it be forgotten that this was Ford’s third use or threatened use of the provision. In addition to bullying the educational workers, he threatened to use it when he halved the number of Toronto wards in the middle of an election, in what was generally seen as a vindictive act against City Council stemming back to his and his brother’s time there; he did use it in order to restrict third party funding in the year before an election, primarily viewed as an attempt to diminish the impact of trade union contributions after the Superior Court struck down legislation (see here).
This example of Ford’s lack of concern for constitutional “niceties” illustrates that constitutional norms are vulnerable unless sufficient public support is prepared to fight back.
Challenges to constitutionalism can thus take many forms: through actions that are without a doubt unconstitutional; through actions which appear to use constitutional processes (including properly enacted legislation), but which result in an attack on constitutional requirements or structure; and through actions that are in themselves legal and “technically” constitutional, but which nevertheless run counter to the spirit of the constitution or constitutional norms.
The Alberta Sovereignty Within a United Canada Act is an example of the second of these different ways to challenge the constitutional order: enacted by a majority of the Alberta legislature, it ignores and intends to disrupt the constitutional order by overriding the principles governing the division of powers, substituting the executive and legislature for the courts and requiring institutions and individuals to ignore or even act contrary to the law. It thus threatens constitutionalism, including the rule of law.
ALBERTA SOVEREIGNTY WITHIN A UNITED CANADA ACT
Premier Danielle Smith has explicitly taken a lesson from Quebec in enacting legislation that is highly questionable from a constitutional perspective; however, while Quebec may be successful because the federal government and others are not willing to challenge the province, Alberta’s rather more clumsy effort is less likely to be sustained. This despite Prime Minister Justin Trudeau’s comment that he is “not looking for a fight”. We can expect, though, that if Alberta actually puts the Act into practice, Ottawa will and could not shy away from a fight intended to diminish the authority of the federal government and Parliament.
Bill 1 passed third reading in the early morning of December 8, 2022. It is premised on identifying Alberta as having “a unique culture and shared identify within Canada”, thus piggy-backing on the idea of Quebec as having its own identify yet remaining in Canada. This view of Quebec has served the province well as it has been able to accrue authority to develop its own programs in some cases rather than participate in pan-Canadian programs (such as pensions), through negotiations with the federal government. Indeed, the Premier stated, “What we are simply asking for is to have the same power and the same respect that Ottawa gives to Quebec. Nothing more, nothing less.” (See Hansard here.)
Quebec’s identity derives from its status as the only province the majority of whose inhabitants speak French as their first language and as distinct at the time of confederation. Alberta, however, while of course having some of its own characteristics, just as every province does, really does not have a “unique culture” any more than do other provinces. (The territories are in a different situation in this regard.)
The Act also echoes Quebec in being clear that the province is not happy with how it is treated by Ottawa. As Quebec has often said it feels “humiliated”, Alberta’s claim is that it has been treated “unfairly”. Smith’s emphasis on the “sovereign” powers of the province must be seen in light of her comment during third reading of the bill: “It’s not like Ottawa is a national government” (see here). The Act reflects this dual view in its Preamble:
WHEREAS actions taken by the Parliament of Canada and the Government of Canada have infringed on these sovereign provincial rights and powers with increasing frequency and have unfairly prejudiced Albertans; ….
Furthermore, it states, federal actions have infringed on Albertans’ Charter rights.
The Premier explained that the Act is “designed to be a constitutional shield to protect Albertans from unconstitutional federal laws and policies that harm our province’s economy or violate Alberta’s provincial rights.” (Address to the Province) . She noted, “it was devised to be respectful of court decisions and Indigenous and treaty rights.” More colourfully, she explained that the government was introducing the Bill “because of federal intrusion into our affairs and the fact that we have to push them back into their own lane.” (See Hansard here.)
- Acting Unilaterally to Undermine Parliament’s Exercise under Section 91 of the Constitution Act, 1867
The purpose of the Act is to provide a process by which Alberta makes unilateral decisions about whether federal “initiatives” are unconstitutional and acts on that determination. This authority is said to lie with “the people”, the Legislative Assembly, although (as described below) the process under the Act is dominated by the Cabinet; although the legislature is to approve Cabinet’s decisions and recommended actions, in a majority government this process should be viewed more as “rubber stamping” than thoughtful consideration (even if that were legitimate). That aside, the problem is more fundamental: taking the process at face value, the Alberta legislature is given and, as the Premier explains, is meant to be given, authority to decide division of powers disagreements. (Hansard here)
Despite being based on Alberta’s enforcing its “sovereign” rights, the Act fails to respect Parliament’s section 91 powers; the relationship between section 91 and 92 powers; and the complex nature of the way the powers can affect the exercise of each other. It also overrides the process for determining when one level of government has unduly invaded the other level’s powers under section 91 or 92: taking an actual situation or a reference to court.
Although Premier Smith states on second reading of Bill 1 that “[t]he national government and the provinces are partners, having been given different responsibilities in different capacities to make law in the governing of our great nation,” her further discussion of the division of powers suggests that she is not terribly conversant with how the constitution works.
In emphasizing the exclusive powers of the provinces, the Premier ignores the opening words of section 91: “It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces….”. She acknowledges only that there are enumerated powers accruing to the federal government (more accurately, to Parliament).
This will provide authority to the cabinet, when authorized by this Legislative Assembly, under the act to direct provincial entities to not enforce specific federal laws or policies with regard to provincial resources. It could create opportunities for building national awareness of federal intrusion into provincial areas that are the exclusive jurisdiction of this province, and it would shift the burden to the federal government to legally challenge Alberta’s refusal to enforce unconstitutional or harmful federal laws or policies instead of Alberta having to initiate legal challenges and waiting years for a decision while those same federal laws or policies harm Albertans day in and day out. (Hansard here)
What kind of federal initiative is contemplated by the Act? Just about anything the federal government is currently doing or might do in the future: a “law, program, policy, agreement or action, or a proposed or anticipated federal law, program, policy, agreement or action”.
Some areas the Premier has already identified are environment, oil and gas and non-plastic straws. She also identified the potential federal “fertilizer ban” (reducing fertilizer emissions by 30%, a program that is voluntary: see CBC story here); proposal to reduce emissions by 42%; firearm bans in Bill C-21; building highways of a certain length; censorship; Emergencies Act (refusing to freeze bank accounts). She referred to
all aspects of our province’s economy, how we develop our resources, and even how we manage our social programs. Through equalization transfers they overtax our province massively, and then they dribble a little bit back to us with conditions over how we’re supposed to spend it”. (Hansard here)
In addition, “excessive restrictions on building code requirements, with the federal government wanting to force us to change overnight our electricity system”, the exercise of the federal spending power, which disadvantages the province because it does not cover the total expenditure (Hansard here).
The scope of the Act and its process for unilateral determination of the constitutionality of federal “initiatives” is made even clearer when it is appreciated that the process bypasses judicial determination of whether law is constitutional or not. In short, the Act undermines very deliberately the distinction in jurisdictions afforded the executive and legislature, on the one hand, and the judiciary, on the other that is foundational to our constitutional (democratic) system.
Given that the purpose of the Act is to undermine federal initiatives of various kinds, it would seem that the purpose of an order is to require something that would be counter to a federal initiative and thus quite possibly contrary to the Constitution. This provision does make clear that only provincial entities may be directed to act in violation of federal law.
- Usurping Judicial Review of Constitutional Disputes
Despite an amendment to the original Bill 1 to make it clear that the Act is not intended to have an impact on — to override — judicial decisions (s.1(f)(ii)), the process forecloses resort to the courts for a determination of whether a federal law is unconstitutional. In doing so, it breaches a fundamental principle of the Canadian constitutional structure.
Rather than taking the federal government to court, the process envisaged under section 3(b) of the Act constitutes a unilateral determination of constitutional validity or ignores the constitutional status of federal initiatives.
A member of Cabinet brings a motion to the Legislative Assembly for approval of a resolution that the legislature considers a federal initiative is unconstitutional on division of powers grounds or as breaching the Charter rights of Albertans or “causes or is anticipated to cause harm to Albertans”. Originally, the Bill did not define “harm”. As amended, however, it defines harm by almost — but in a significant way, not completely — repeating the reasons the Legislative Assembly may believe a federal initiative is unconstitutional.
In relation to division of powers and the Charter, the Legislative Assembly must be of “the opinion” that a federal initiative is unconstitutional. With respect to the harm to Albertans, the requirement is far looser and does not have to be unconstitutional: it refers to a federal initiative causing harm “on the basis that it”
(A) affects or interferes with an area of provincial legislative jurisdiction under the Constitution of Canada, or
(B) interferes with the rights and freedoms of one or more Albertans under the Canadian Charter of Rights and Freedoms….
As far as the “harm” criterion is concerned, then, the Alberta cabinet/legislature abrogate to themselves the right to ignore or counter federal initiatives that could be described as those they simply do not like. Indeed, the Preamble distinguishes between federal actions that are “unconstitutional” or “harmful” to Albertans.
Another difference is that the resolution must identify the harm when that is the justification for ignoring or countermanding a federal initiative, but it does not have to explain how the initiative contravenes the division of powers or the Charter: it simply needs to state that it does.
The resolution must include the measures or measures the Cabinet “should consider taking in respect of the federal initiative”. Assuming the resolution brought by Cabinet to the Legislative Assembly passes, the Cabinet may make orders identified in the resolution (and therefore approved by the legislature), including the following:
suspending or modifying the application or operation of all or part of a regulation authorized by an enactment; adding or substituting provisions in a regulation authorized by the enactment; directing a Minister “to exercise a power, duty or function of the Minister”; or “issuing directives to a provincial entity and its members, officers and agents, and the Crown and its Ministers and agents” respecting a federal initiative.
Any conflict between an order and the regulation is resolved in favour of the order (section 4). Provision is made for the end or extension of the orders under section 5.
Section 9, which appears to contemplate judicial review of decisions or acts made by a person or body under the statute, specifies a standard of “patent unreasonableness” (rather than “reasonableness” as the Supreme Court of Canada established in Vavilov). Legislation can establish a standard differing from that which is usual; where a judicial review is based on whether an action is unconstitutional, though, the standard would be “correctness” in the normal course.
Section 9 also says, “Nothing in this section is to be construed as making a decision or act of the Legislative Assembly subject to judicial review”. This seems to be an attempt to make the Act itself immune from judicial review, as well as the making of an order by the Legislative Assembly. It is not clear how these two provisions interrelate. Constitutionally, the process of making law is not subject to review; however, the results should be. Here there seems to be a distinction between the order (for example) and the implementation of the order.
One last point here, as pointed out by Olszynski and Bankes, the limitation period in section 9 of 30 days “changes the general rule of section 3.15.1 of the Alberta Rules of Court, which provides that an application for judicial review must be commenced within six months of the relevant decision or exercise of a statutory power” (see here).
- Running Amok of the Rule of Law
The actions Alberta will take in response to the federal government and Parliament’s ostensibly inexcusable conduct towards Alberta will affect almost, if not all, public entities.
The list of 10 “provincial entities” under section 1(e) of the Act (the definition section) includes the following: public agencies under the Alberta Public Agencies Governance Act (identifiable by the method of appointment); Crown organizations (identifiable by percentage of members government appoints and degree of Crown ownership of shares; entities “carry[ing] out a power, duty or function under an enactment; regional health authorities; public post-secondary institutions; board of education; municipalities; municipal and regional police services.
In addition to these clearly public/government bodies, the Act also applies to “an entity that receives a grant or other public funds from the Government that are contingent on the provision of a public service”. Is, for example, a women’s shelter that receives money from the province covered by the Act? It provides a public service (an undefined term). Under section 4(1)(c), the members, officers and agents are expected to implement any orders Cabinet may make in relation to the public entity.
Additional organizations that are similar may be added by regulation. The Cabinet may prescribe provincial entities and define any term or phrase used by not defined in the Bill (section 10).
The Act provides that entities subject to the Act may be directed to ignore federal requirements or act in a way contrary to them. For example, hospitals receiving funding from the federal government may find themselves having to decide whether to adhere to any conditions imposed by the federal government or lose funding, if the Cabinet orders them to take steps contrary to the conditions. They may have to decide whether to provide services consistent with the Canada Health Act should Alberta order them not to do so. This is true of any provincial entity that receives conditional funding from both the federal and provincial governments, as many do.
Just to be clear, provincial entities are required under section 6(1) to comply with a Cabinet directive. The Act states there is no cause of action against anyone acting under the Act, whether directing or being directed (section 8). This does not mean, however, that the federal government might not bring a cause of action or deny funding to any entity failing to follow federal law or conditions attached to funding. And institutions and individuals may be vulnerable to civil suits for failing to provide services they have been required to provide under federal law.
Fundamentally, the Legislative Assembly intends to ignore the division of powers and to bypass the judicial system if the cabinet/legislature believes the federal government has invaded its provincial jurisdiction or believes constitutional federal initiatives may be “harmful” to Albertans. Instead, the government (Cabinet) in coordination with the legislature will make its own decisions about federal initiatives. (For a full analysis supporting the view that the Act itself is unconstitutional, see Olszynski and Bankes here.)
The Alberta website claims that the Alberta Sovereignty Within a Unified Canada Act does not allow “Alberta to defy Canada’s Constitution” or “cabinet to issue unconstitutional orders-in-council, including giving instructions that are outside of provincial jurisdiction to provincial entities” (see here). Except this is exactly what the Act does, depending on whether the Cabinet/Legislative Assembly’s determination of constitutionality would withstand judicial examination.
On a call-in radio show, Premier Smith indicated she didn’t want to use the Act, but hoped it would start a conversation after the Alberta legislature discussed resolutions under the Act.
Regardless, the Alberta Sovereignty Within a United Canada Act is closer to the Quebec Legislative Assembly’s unilateral amendment of the CA, 1867 than it is to Ontario’s use of section 33. In this, it fulfils Premier Smith’s desire to import Quebec’s approach and status to Alberta. It is a more genteel effort to subvert the constitutional order than the attack on the US Capitol, but like Canada Unity’s futile effort, it seeks to supplant the existing constitutional structures and processes of Canada to reach an unconstitutional goal.
Although section 2 of the Act states, “Nothing in this Act is to be construed as authorizing any order that would be contrary to the Constitution of Canada”, the entire Act is premised on the potential of authorizing orders that are unconstitutional and embroiling provincial institutions and individuals in doing the same.