In mid-September, Alberta Premier Jason Kenney openly disagreed with UCP leadership hopeful Danielle Smith over her proposed Alberta Sovereignty Act (ASA), calling the legislation destabilizing, unconstitutional, and a disaster for Alberta.
Kenney’s former principal secretary, Howard Anglin, in fact, said ASA should stand for “the Alberta suicide act.”
Accused of meddling in the selection of his successor, Kenney reminded everyone that, as premier, his job is “to defend the vital interests” of Alberta, thereby suggesting that the proposed ASA would do the opposite.
A week later, however, Alberta Solicitor General Tylor Shandro notified the federal government and the RCMP of his government’s intention not to cooperate with Ottawa’s plan to confiscate Albertans’ lawfully procured firearms, dismissing the federal policy as politically motivated.
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He ordered the RCMP, under the authority of the 2011 Provincial Police Service Agreement (PPSA), to disregard Ottawa’s instructions for the “buyback.” Ottawa’s plan, Shandro said, did not follow Alberta’s priorities. Under section D of the PPSA, the federal cops are bound to “respect Alberta’s constitutional jurisdiction over the administration of justice” and, under section G, to implement “the provincial policing objectives, priorities and goals.” Shandro also announced Alberta’s intentions to intervene in the relevant court cases against Ottawa.
Shandro’s move could be construed as the opening salvo of the Alberta Sovereignty Act, with Alberta using its jurisdictional authority to push back against Ottawa when Ottawa is perceived to be acting against the interests of Albertans. In a sense, the Alberta government is stepping into a line of fire to shield the rights of individual Albertans.
Such spirited defence of Albertans rights is, in significant part, what Smith’s proposed ASA aims to do. Its announcement, surprisingly, represents Kenney’s tacit endorsement of Smith’s proposal.
Albertans who may have been wondering about the rationale and virtue of implementing the ASA now have a concrete example for an answer. In a nutshell, the ASA is a response to the Ottawa problem, which is its tendency to hinder provincial authority and development through a combination of inaction, obstruction, and intrusion. In recent examples, Ottawa’s inaction allowed unconstitutional blockades to Alberta’s exports; Ottawa obstructed new energy developments such as Teck Frontier; and Ottawa intruded in Alberta’s jurisdiction with its desire to grab the lawful property of Albertans.
The ASA simply asserts Alberta’s authority to refuse provincial enforcement of specific federal policies or laws that violate the jurisdictional rights of Alberta under the Constitution or that breach the Charter rights of Albertans.
The ASA is not an instrument for “independence,” as some have wrongly suggested. Alberta has every right to occupy the fullness of the jurisdictional spaces that the Constitution confers to provinces. Canada’s Constitution divides the country’s sovereignty into specific jurisdictions, some of which are the exclusive domain of each level of government, and some of which are shared.
For example, education is an exclusive provincial jurisdiction, and Ottawa has zero authority to make laws regarding education. Foreign and monetary policies, on the other hand, are Ottawa’s exclusively. Immigration and transportation are examples of shared areas, adding even more tension to the mix.
While inherent tensions exist in federal structures, they are magnified in Canada when Ottawa is actively hostile toward a province or region. Faced with such open hostility, Western provinces must be proactive in shielding their citizens against intrusions or punitive abuses.
The history of Western Canada is tainted with jurisdictional transgressions, punitive violations, and overreach from Ottawa to the detriment of provinces. The ASA is simply a defence of the constitutional authority Canada’s Constitution gives to provinces under sections 92-95 of the 1982 Constitution. All provinces enjoy such sovereignty to govern their own affairs without external interference. And doing so is lawful, constitutional, and, in Kenney’s words, a “vital interest” of each jurisdiction.
Shandro’s defence of Alberta’s rights is, without a doubt, the most important development in Canadian constitutional affairs in decades. Already emulated by Saskatchewan and Manitoba (New Brunswick may be next), it sets a precedent for provinces to defend their constitutionally-apportioned sovereignty. It lays the ground for Danielle Smith to introduce her legislation, should she win as expected.
How Ottawa reacts will have significant implications for the federation. Specifically, how the RCMP responds may determine the future of the federal police acting in provincial spaces in Western Canada.
Marco Navarro-Génie is a senior fellow at the Frontier Centre for Public Policy and president of the Haultain Research Institute. He is co-author, with Barry Cooper, of COVID-19: The Politics of a Pandemic Moral Panic (2020).
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