Alberta’s Proposed Sovereignty Act Simply Asserts Existing Constitutional Powers: Lawyer

Alberta Premier Danielle Smith makes an announcement in Edmonton on Dec. 6, 2022. (The Canadian Press/Jason Franson)

EDMONTON—Alberta Premier Danielle Smith’s Sovereignty Act, having just made it through first reading in the legislature, has generated both praise for its stated purpose of providing a “constitutional shield” against overreach by Ottawa, and suggestions that the bill is unconstitutional and undemocratic.

The act’s stated purpose is to “protect Albertans from federal legislation or policies that are unconstitutional or harmful to our province, our people or our economic prosperity.”

Critics say Bill 1, the Alberta Sovereignty Within a United Canada Act, would give cabinet new powers to bypass the legislative assembly and unilaterally amend provincial laws, something that came to be known as a Henry VIII clause. This term refers to clauses that allow ministers to use executive powers, rather than legislative processes, to modify or change laws without oversight or debate by the elected members of the legislature.

Acknowledging criticism and stating that the bill requires more clarity, Smith said on Dec. 5 that the United Conservative Party has voted to put forward two amendments to Bill 1 to clarify clauses of concern.

The amendments will ensure any changes that cabinet makes to laws under the act will take place in the legislature in the open, with debate and approval. The amendments will offer further clarity on when cabinet can take action on federal policies or legislation that could be harmful to Albertans.

“I think we just have to be very clear that any statutory change has to return to the legislature. That was always the intention,” Smith said.

The amendments have not yet been published, but it is expected the bill will be changed to more narrowly define “harm” as anything a majority of the legislature deems to be unconstitutional federal intrusion into provincial areas of responsibility.

‘Provinces Are Sovereign’

Alberta lawyer Leighton Grey told The Epoch Times that criticism of the bill “comes from a place of profound ignorance about the precise legal structure of Canadian federalism.”

Grey represented several Alberta churches and individuals in their constitutional challenge launched in December 2020 against Alberta government lockdowns—and questioned former chief medical officer of Health Dr. Deena Hinshaw in court in April this year.

The act “simply asserts constitutional powers that already exist in law,” he said in an email.

“According to the SCC [Supreme Court of Canada], there is nothing in the Constitution requiring Alberta to enforce federal laws. Nor is AB required to cooperate with Ottawa in terms of enforcement—the recent gun confiscation legislation being a prime example.”

Alberta constitutional lawyer Leighton Grey, Q.C. (Courtesy of Leighton Grey)

Grey says Canada does “not have a national government” but is rather a “federation of sovereign jurisdictions, and the federal government has certain specific areas of authority.”

“Similarly, the provinces are sovereign within their own exclusive areas of jurisdiction. That is how a federation is intended to work,” he says.

Bruce Pardy, executive director of Rights Probe and a professor of law at Queen’s University, says Bill 1 is a sign that “Alberta is not satisfied with the way the Canadian federation is working.”

“From Alberta’s perspective, the federal government’s interpretation of its jurisdiction and constitutional mandate is problematic, and has taken on the practice of imposing its policy preferences on provincial matters,” Pardy told The Epoch Times.

“In addition, some policy matters are traditionally dealt with in a cooperative manner, but this act signals that the federal government should not take that cooperation from Alberta for granted,” he said.

Pardy adds that the “real value” of the bill is perhaps political, drawing comparisons with Quebec.

“Quebec has received all kinds of favourable treatment from Ottawa since it asserted its uniqueness and dissatisfaction with the constitutional order. For years Alberta arguably has received the short end of the stick from Ottawa. There’s no reason why they shouldn’t rattle the cage.”

University of Alberta law professor Eric Adams, writing for CBC Opinion on Nov. 29, said Bill 1 “fundamentally upends a number of stabilizing principles in our Canadian constitutional order” and a court challenge is inevitable.

Whether Ottawa will go that route remains to be seen. Prime Minister Justin Trudeau told reporters on Nov. 30 that he’s “not going to take anything off the table, but I’m also not looking for a fight.”

Jack Major, an Alberta resident and former Supreme Court justice who sat on the bench from 1992 to 2005, said he doesn’t find the sovereignty act legislation “particularly alarming.”

Smith has said the onus will be on the federal government to sue Alberta if the province decides not to comply with a federal policy or legislation it deems harmful or infringing on provincial jurisdiction.

Amendments

Constitutional lawyer Jesse Hartery says Henry VIII clauses are “problematic for many reasons” and he supports the amendments because of that.

Jesse Hartery, a constitutional law expert with McCarthy Tetrault law firm in Toronto, Ont. (Courtesy of Jesse Hartery)

“Put another way, it is only because the federal government is violating the Constitution that the Sovereignty Act is even necessary. Indeed, in a properly operating federation, this bill would be entirely superfluous,” he said.