Someone needs to explain to Alberta’s Lieutenant Governor, Salma Lakhani, who yesterday suggested that she might refuse to grant royal assent to Danielle Smith’s proposed Alberta Sovereignty Act, that constitutional law isn’t math: you can’t correct an unconstitutional Act with an unconstitutional act. Two negatives, in this case, don’t make a positive.

Rather than cancel each other out, Smith’s political gambit and the spectacularly inappropriate public musings of Alberta’s viceroy could compound and build into a perfect storm of unconstitutionality. That is, if one or the other doesn’t reconsider her position. To understand why, it may be helpful to review the fundamental but often (and understandably) misunderstood concept of unconstitutionality in our system of government.

The sense of “unconstitutional” with which most Canadians are familiar is the sense in which a court uses it when it nullifies a law or disapproves an act of government. It means that the law or the action is of no legal force or effect because it is inconsistent with the court’s interpretation of the constitution (usually, but not always, the written text of the Charter or the division of powers between the provinces and the federal government).

But there is another, older sense, which you hear more commonly in countries like the United Kingdom that do not have a federal system of government and have not given the courts the power to strike down duly enacted laws. In this sense, “unconstitutional” means that a law or an act is inconsistent with established and generally accepted political practice, despite being of legal force and effect.

This second sense of “unconstitutional” is also important in Canada because much of the constitution we inherited from Westminster is unwritten or written in informal and easily-amendable documents like the standing orders that govern the conduct of business in Parliament or the provincial legislatures. Famously, the role of the prime minister is not defined anywhere in the Canadian constitution and the cabinet, which is for most practical purposes the Government of Canada, isn’t even mentioned.

This means that how our government actually works is often not specified by text but carried on as processes that are, or should be, familiar to the institutional actors involved. Among these processes are what are known as constitutional conventions. Constitutional conventions are a curiously fragile paradox. They are foundational but ephemeral; binding but unenforceable; well-known but nowhere written down. Their role is not to tell us what cannot be done, but rather what must not be done.

It is in this second sense that, if the Lieutenant Governor followed through on her suggestion, she would be acting unconstitutionally. First, because in our system of government, laws are presumptively constitutional until they are formally declared to be unconstitutional by a court. And second, because the Queen’s representatives are neither equipped institutionally nor empowered constitutionally to opine on the legality of a bill presented to them for royal assent.

But wait, I hear some of you say. Hasn’t this happened before? Haven’t Lieutenant Governors in fact refused to grant royal assent to provincial legislation that they believed was unconstitutional? Yes, this is true. Section 55 of the Constitution Act, 1867 says that a Lieutenant Governor may “reserve” the decision on royal assent, which kicks the approval decision to the federal government.

This happened most infamously in 1937, when Alberta’s Lieutenant Governor John Bowen reserved royal assent for three bills introduced by the Social Credit government while the Supreme Court of Canada opined on their constitutionality.^{1The full history of the bills, one of which was effectively a “Fake News” bill avant la lettre, and of the admirably petty retribution taken by the government, including cutting off the utilities to the Lieutenant Governor’s house and forcing him to move into rooms at the Hotel Macdonald, is available here.} The Supreme Court of Canada eventually declared the legislation to be beyond the power of the provincial government.

The last time a Lieutenant Governor used the power of reservation was in 1961. In that case, Saskatchewan Lieutenant Governor Frank Bastedo withheld assent to a bill from the province’s CCF government that altered legal rights associated with several hundred mineral contracts. Although Bastedo’s advisors urged him to sign the bill, he objected that “[t]here is grave doubt as to its validity.” Eventually, the federal cabinet overruled his misgivings and granted royal assent.

Since then, no Canadian viceroy has exercised the power of reservation. In retrospect, we can see Bastedo’s nakedly ideological use of the power as a constitutional turning point. It didn’t help that, in both of the cases described above, the viceroy withholding royal assent was a former partisan of the opposition party. In Bowen’s case, he was the former Liberal party leader; in Bastedo’s case, he was the president of the Regina Conservative Association.

Over the intervening 61 years, the practice of restraint has almost certainly calcified into a constitutional convention, regardless of the viceroy’s motivation. This means that exercising the power of reservation would be unconstitutional in the second sense described above even though it would not be unconstitutional in the first sense, because the power remains in the text of the constitution.

Or, to put it another way (and one that illustrates the subtle shadings of constitutional theory and practice), the convention of vice-regal impotence, though unenforceable in law, now carries more constitutional weight and legitimacy than the constitutional text, which remains the law.

But before supporters of the Alberta Sovereignty Act get too indignant, they should reflect that their hands are less than clean in this affair. The only reason that Lakhani—or any of us—is talking about the Alberta Sovereignty Act is that it is both in essence and by design flagrantly unconstitutional. As one of its authors has written, “that is the whole point”!

Smith has been rather coyer. Although she has not ruled out using the act in unconstitutional ways, she has defended that it is “a tool, based in the rule of law,” that would simply protect Alberta against Ottawa’s unconstitutional intrusions on the province’s constitutional powers. As she put it in response to the Lieutenant Governor’s comments, the act will be “rooted in the Constitution, specifically Sections 92-95, with special notion (sic) to 92A along with the Canadian Charter of Rights and Freedoms.” But this confuses unconstitutional means with constitutional ends.

The problem with the Alberta Sovereignty Act is not its diagnosis of the problem (I agree that the Supreme Court of Canada has often been overly deferential to federal power), but its proposed solution. According to Smith, the act would give the Alberta legislature the authority to make a final determination of what is and what isn’t constitutional when the province and Ottawa disagree. That, to be blunt, is just not how the constitution works, or ever could work.

In a dispute between two governments, each sovereign in its own sphere, it is not for one of the two disputants—in this case the provincial legislature—to decide which is right.^{2In fact, our constitution provides various ways in which, in extreme cases, the federal government can resolve a clash between itself and a provincial government in its favour, which means Smith’s proposal is not merely unconstitutional but would flip the constitutional order on its head.} Instead it should fall to a third party to arbitrate the dispute, and in our constitutional system that is the judiciary.^{3Until 1949, the Judicial Committee of the Privy Council in the UK played this role. Interestingly, it was often criticized for promoting provincial power at the expense of a centralized federal government—the opposite of the criticism you rightly here today of the Supreme Court of Canada.} Both Smith’s plan and the Lieutenant Governor’s reaction misunderstand this—the first because she doesn’t like it, the second because she apparently doesn’t understand it.

It is hard to say which is worse, intentional unconstitutionality or ignorant unconstitutionality, but neither is good and together they could prove combustible. Smith has good, if cynical, political reasons for taking the position she has, so I don’t expect her to moderate it, but Lakhani has no such excuse for her position and every reason to correct it. Quickly, please.

The history of mankind has mostly been one of starvation and scarcity.

For the vast majority of human existence, humans devoted the bulk of their time and energy to the acquisition of two things essential for life: food and fuel. As recently as two hundred years ago, 79 percent of the American labour force was engaged in agriculture. This is unsurprising; many have observed that civilization is “only nine meals away from anarchy”. Survival of the nation demands the dedication of whatever resources are needed to provide the necessities of life. 

This skewed division of labour changed with the invention of the internal combustion engine. Previously, the amount of energy available to till a field or reap a harvest was a function of the stamina of the farmer and whatever draught animals he might have. Since the amount of energy in a single barrel of oil is equivalent to 23,000 man-hours of labour,^{1What is a Human Being Worth (in Terms of Energy)? https://twitter.com/David_Mulroney/status/1565285864061779974?s=20&t=mdNUXFxVXMHqr5BiNLcmxg} the use of machinery freed up many people to apply their skills in other pursuits. Today, less than two percent of the Canadian workforce is engaged in agriculture. Due to the application of concentrated energy in the form of fossil fuels, mankind enjoys a lot of things today that would have been incomprehensible just two hundred years ago along with a greatly improved standard of living and confidence that the necessities of life will always be available when we want them.

In fact, it is so easy to become complacent in the face of all the abundance that we, perhaps inevitably, take it for granted. We observe that the things we need have always been there and conclude therefore they will always be there. We lose appreciation as to how they came to be available in the first place; electricity comes from the wall socket, steaks come from the butcher shop, gasoline comes from the service station, etc. Our appreciation for supply chains fades with time and distance, exacerbated by the increasing amount of time we spend in the digital, rather than the physical world.

This lack of awareness might be the kindest explanation for the onslaught of policies emanating out of Ottawa that seem designed to put Canadian society back on the road to deprivation and scarcity that we only escaped from a few generations ago.

Having mounted a spirited attack for the last several years against Canada’s most important export industry (oil and gas), our government has recently turned its attention to impairing the country’s ability to feed itself through the imposition of fertilizer regulations which farmers assert will dramatically reduce crop yields. Learning nothing at all from the self-immolation of the Sri Lankan economy under comparable diktats, Canada is preparing to rush headlong into a similar predicament. 

In a world facing impending food shortages and dealing with wicked price inflation, this makes little apparent sense. One wonders if Hanlon’s Razor applies here.^{2Hanlon’s razor advises that we “should not ascribe to malice what can easily be explained by incompetence.”} For substantiation, listen to this interview of the Minister of Agriculture with CBC Radio. The minister acknowledges that she is not farmer and not a scientist and really has no answer for all the experts that question this foolish policy, but fear not: she intends to hire a lot more bureaucrats!

Shortly thereafter, Justin Trudeau advised the President of Germany, which is about to endure possibly the coldest winter in decades due to a shortage of natural gas, that there has never been a “business case” for the export of LNG from Canada. This would be news to the many private companies that have been attempting to build such facilities with private capital over the past decade. It is estimated that our failure to build LNG terminals due to government interference has an opportunity cost to the Canadian economy equal to nine figures worth of GDP every day.^{3Canada Set To Miss Out On A Massive LNG Opportunity https://oilprice.com/Energy/Natural-Gas/Canada-Set-To-Miss-Out-On-A-Massive-LNG-Opportunity.html} At the same time, he maintains that there is a business case for the export of hydrogen, an element that actually consumes more energy to produce than it provides in its combustion. 

The dismissal of LNG in favour of hydrogen is preposterous. LNG is sold into an enormous and established global market. It is essential to the German economy for heat, power, and manufacturing. Canada has it in abundance and private companies are willing to invest the necessary capital. In contrast, hydrogen as fuel is not yet utilized at scale anywhere in the world and will require much research, time, and investment before it can be widely deployed. Not to mention gobs of government money. Yet the absurdity of Canada’s position seemed to be meekly accepted by the media and population at large. 

So…once again it comes down to food and fuel. Critical for maintaining civilization yet blithely taken for granted by political leaders and the population generally. Perhaps it is inevitable this insouciance will continue to prevail until the things we think will always be there, aren’t.

Economic decisions invariably involve trade-offs; there are always costs AND benefits. A singular fixation on carbon “pollution”, to the exclusion of all other considerations, prevents consideration of the other side of the equation. This includes factors such as economic growth, employment opportunities, and food security. This myopic perspective is leading to the inexorable dismantling of essential parts of the Canadian economy. Canada has already experienced capital flight totalling billions of dollars over the past seven years^{4Canadian Investors Shatter Records By Putting $115 Billion in Foreign Securities https://www.bloomberg.com/news/articles/2022-01-17/canada-foreign-investment-spree-hits-record-amid-capital-bleed} and is forecast to have the lowest GDP growth over the next twenty according to the OECD.^{5OECD predicts Canada will be the worst performing advanced economy over the next decade…and the three decades after that https://bcbc.com/insights-and-opinions/oecd-predicts-canada-will-be-the-worst-performing-advanced-economy-over-the-next-decade-and-the-three-decades-after-that} 

And yet, while we deteriorate, we are imposing anti-development policies that favour radical environmentalism and global virtue-signalling over logic and economic self-interest. All in the name of averting a climate catastrophe which we cannot avert because Canada contributes only 1.5 percent of emissions while major emitters remain largely unconstrained.  

Constraining Canada’s ability to produce food and fuel, thereby costing the country economically and ceding competitive advantage to other nations, in exchange for an immeasurably small environmental impact, is reckless and destructive. It’s well past time for Canadians to say “enough”. Canadian public policy should put the interests of Canada first.