We do but flatter ourselves, if we hope ever to be governed without an arbitrary power. No, we mistake. The question is not, whether there shall be an arbitrary power, whether one man or many? There never was, nor ever can be any people governed without a power of making laws, and every power of making laws must be arbitrary. For to make a law according to law, is contradictio in adjecto.
– Robert Filmer, The Anarchy of a Limited or Mixed Monarchy.
As the United Conservative Party’s leadership campaign comes to a merciful end, there remain ongoing debates about the legal and political ramifications of the presumed front-runner Danielle Smith’s controversial proposed Alberta Sovereignty Act.
The legislation would, according to Smith and the proposal’s proponents, permit the Alberta legislature to prevent, by Special Motion, the province’s executive bodies from enforcing certain federal laws.
While various commentators have examined the constitutionality and wisdom, or lack thereof, of this proposal, most have overlooked the fact that provincial nullification of federal laws has actually been practiced for decades. The takeaway from this history is a set of three notions that may influence how policymakers and the public come to understand the spirit, if not the substance, of the Alberta Sovereignty Act.
These three notions are: (1) it is often politically possible to do indirectly what one cannot do directly (to paraphrase Patrick J. Monahan), (2) nullification may be used justly for reactionary ends, and (3) nullification illustrates how executive power engages in the dialectic of what makes good positive law.
Smith’s first error is in attempting direct nullification through the legislature. Any piece of positive law like the Alberta Sovereignty Act will surely be challenged in court and struck down for trenching on federal jurisdiction. Conversely, nullification by diffuse administrative actions, directed through cabinet, will be far more effective, draw less attention and survive greater legal scrutiny.
Nullification typically begins at street level, with non-enforcement by police. The clearest modern instance is the adoption, by the Vancouver Police Department in 2013, of its “Sex Work Enforcement Guidelines“. These stipulate that the VPD will not enforce federal prostitution laws per se, absent extenuating circumstances such as the involvement of minors.
Police practice manuals/guidelines lack the force of law and do not bind police; accordingly, they are not subject to Charter scrutiny. Nonetheless, such manuals serve as a template for everyday officer conduct; therein lies their ability to effectively enable a policy of nullification. The effect of the VPD policy is that arrests of pimps, johns, and madams virtually ceased in Vancouver after 2013, while such arrests still regularly occur outside city limits where similar policies have not been pursued.
Courts consider such broad police discretion permissible, on an individual or policy level, if it is justified rationally, transparently, on valid grounds, and on the basis of objective factors. The VPD goes to great lengths in its “Sex Work Enforcement Guidelines” to rationalize the policy. Since provinces maintain a constitutional right to appoint, control, and discipline their own police, police nullification is a straightforward matter if a provincial government uses its appointment power judiciously.
It should be noted that federally-created police are not subject to provincial oversight (even while under provincial contract) as are provincially-created police. The RCMP’s replacement in a given province1such as has been proposed in Alberta. would surely be a necessary step toward nullification in that province.
Professor Dennis Baker argues that discretion has likewise been carefully woven into Crown Policy Manuals to “contextualize” prosecution and thereby change the law. For decades, provincial attorneys-general, including Quebec’s Marc-André Bédard and Ontario’s Arthur Wishart, effectively suspended federal abortion laws through open and notorious policies of non-enforcement. The B.C. Prosecution Service did much the same regarding assisted suicide in response to Rodriguez v. British Columbia; its policy manual “gave a number of factors that made prosecution of a qualified medical practitioner who ended the life of a terminally ill person with their consent very unlikely”, per Baker.
While these policies are seldom the subject of court review, courts have expressly affirmed that non-enforcement is included within prosecutorial discretion. Three 1987 cases from the superior and appeals courts of Ontario and Quebec—Campbell, Harvey, and Faber—were plain in their affirmation that prosecutorial discretion is subject to censure only by the legislatures or Parliament. Even a blanket policy of non-enforcement will unlikely constitute “abuse of process or flagrant impropriety”. Cabinet collective responsibility enthusiasts, take note.
Because the logistical and financial burden of enforcing criminal law, and in particular, the Criminal Code, across Canada necessitates the participation of provincial attorneys-general, their prosecutorial discretion must be respected by the federal government. Considerable influence is afforded to provincial governments through the power of attorneys-general, allowing government preferences to modify federal policy.
Which brings us to Filmer, whose words began this article. Sir Robert is no nihilist; a profound belief in natural law of divine origin, to which princes and plebeians alike must be held, suffuses all his works. His point in the preface to The Anarchy is merely that human law is, au fonds, arbitrary, and must be so. The remaining questions are, who shall serve as an arbiter, by what means, and to what ends?
The evolution of both Canadian progressivism and federal-provincial relations throws these questions into stark relief. One federal law provides that none may take the life of an unborn child. Another imprisons fathers for refusing to accept false anthropologies inflicted on that child after birth. A province might choose to abrogate either, and in each case the action would be arbitrary.
Yet, the actions could hardly be further apart in moral foundation and effect. The former is abrogating justice, the latter injustice. If our political principles prevent our seeing this difference, we have already lost. We can gnash and wail about norms (long since abandoned by our opponents) and the spirit of the law (see previous set of brackets) when said opponents successfully employ nullification, or we can adapt.
I have significant reservations about any form of administrative nullification. It is a half measure, dependent on legal finesse, considerable guile, and the fickle nature of changes in government. So be it. Politics is a vulgar business, and perfect justice comes not in this world, nor by human hands. That lies elsewhere.
These complex questions about law, authority, and political power may soon be back in spotlight if Smith is elected leader of the UCP and in turn Alberta’s next premier and moves to bring expression to the Alberta Sovereignty Act.
