The Russian invasion of Ukraine entered a new phase last month, partly due to the heroic efforts of the Ukrainian army and partly due to continued support from the West.

Although the success has been impressive, it leaves two concerns for Ukrainians going forward: an exhausted army and a distracted West.

The United States, NATO, and many supporting Western countries have provided training and military equipment to Ukraine, including long-range artillery like the HIMARS precision-guided rocket strike system. It has had significant success on the battlefield against Russian forces, but both countries’ militaries are in rough shape. Russia has 80,000 estimated dead and wounded and has maybe lost half its modern frontline main battle tanks.

Ukrainian losses are estimated at somewhere between 35,000 and 40,000 dead and wounded troops with many civilian casualties and large tracts of the country destroyed by Russian forces. Ukrainian forces are fighting well and by all accounts are tired but morale continues to be good. They are continuously being re-equipped and trained by NATO. The country has fully mobilized its war effort. 

All of the historic weaknesses of the Russian war machine have revealed themselves with this invasion and war with Ukraine. Morale at the front and behind the front appears to be low among Russian forces. Russia has just now started to mobilize for war where its full military numerical advantage can come into play and it has to date avoided the use of chemical and nuclear weapons to press its total war aim to seize the entirety of Ukraine. We also continue to see signs of a Putin-ordered purge in the spirit of Joseph Stalin of his national security infrastructure at home and abroad.

Putin has been around grand strategy and the practice of national security and war at a high level most of his life and he is seemingly being bested by Volodymyr Zelenskyy, a career comedian and actor. If you are Vladimir Putin, frustration and desperation run high. 

A few things are becoming clear as the war drags on. Ukraine will survive and may even better its current situation without meeting its strategic war aim, as long as it continues to stay in the Western press and continues to receive NATO training and heavy military equipment. And, most importantly, if the U.S. and West remain undistracted. Even so, it will have to avoid the prospect of “bleeding itself white” in a counter-offensive in the south at Kherson, Kharkiv, Luhansk, and Donetsk Oblast that leaves it vulnerable elsewhere to a Russian counter-offensive with huge numbers of conscript troops in the coming months and winter. 

Russia still seems to maintain the confidence of its national security and economic elite and Russian society as a whole. Economic sanctions have been tough and harmful to Russian interests but, to date, are not a game changer. Russia is playing at economic, energy, and food security warfare at a high level and very successfully forcing cracks in the EU, NATO, and the UN. Russia seems to have settled into the war of attrition for the long term and will not easily let go of its current positions in Ukraine.

Russia won’t succeed at achieving its war aims with its current strategy and without resorting to full mobilization for war, unless of course the U.S. and NATO are distracted by China and Taiwan, by North Korea, or by Iran. Or unless North Korea sends its offered 100,000 troops to reinforce the Russian war effort. These could be wild card game changers. Just as Ukraine cannot bleed itself white in the south at Kherson or Kharkiv, Russia must avoid the same in its Donetsk offensive. This war of attrition continues with no end or decisive victory in sight. 

Russia’s brutal eight-year war of aggression against Ukraine has served as the backdrop of the Free World’s fight with the axis of evil dictators of today. The war has become a war of attrition where each country is virtually stalled on the battlefield searching in vain for a strategic miracle that has not been forthcoming.

In war, a warring party or state wins when it meets and succeeds in its stated military objectives and war aims. Russia began its February 24 invasion of Ukraine with the strategic war aim of seizing all of Ukraine. Ukraine’s war aim has remained the same since Russia’s 2014 invasion—the liberation of all occupied Ukrainian territory, including Russian-annexed Crimea. Neither state is even close to achieving its stated strategic war aims. 

In 2014, Russia seized Crimea in its entirety in the south on the Black Sea and parts of Luhansk and Donetsk Oblasts in the eastern part of Ukraine. This time, Russia invaded Ukraine with the hope of a blitzkrieg-type campaign to seize Ukraine and its capital Kyiv in days, if not hours. When that failed, Russia reverted to a campaign centred on Kharkiv and the northeast of Ukraine. When the Kharkiv campaign stalled, Russia with some success, pressed its offensive to seize the Black Sea coast all the way to Moldova, but the offensive failed in advancing past Kherson Oblast directly above Crimea.

Russia then conveniently, but not convincingly, restated its war aims as the south coast of Ukraine and all of Donetsk and Luhansk Oblasts in the east, which have already been contested in ongoing active fighting since 2014. 

By September, six months into Russia’s second invasion of Ukraine, Russia held almost the entirety of Luhansk Oblast, large parts of Donetsk Oblast in the east and Zaporizhzhia Oblast, Kherson Oblast, and Crimea Oblast in the south along the Black Sea.

Russia’s main offensive action is to encircle “the Cauldron.”^{1The term refers to being trapped in a boiling containment where the encircled combatant is hotly resisting attack.} The Cauldron takes in the Donetsk Oblast between Izyum and Donetsk in eastern Ukraine, completing the capture of Luhansk and Donetsk and the entirety of the Donbas region. In the south, Russia has surrendered the initiative to a defensive posture against Ukrainian forces engaged in a counter-offensive against the northern parts of Zaporizhzhia and Kherson.

Russia continues to make slow grinding progress with its forces in Donetsk, while Ukraine has modest successes in and around Kherson, but there has not been a game changer. Both belligerents are now coming up against strong defensive works and reinforcements. Ukraine’s surprise Kharkiv offensive has succeeded in liberating Kharkiv Oblast and challenging Russian forces in Luhansk and Donetsk and it has killed Russia’s northern spearhead attacking Donetsk, but it is not clear to what end.

It should be noted that a Ukrainian insurgency has started in the south of the country with some limited successes. But Russia has now moved forward with partial mobilization to put between 300,000 and a million soldiers into the field and forced Russian referendums on occupied territories in Luhansk, Donetsk, Kherson, and Zaporizhzhia.

All four territories “voted” to join Russia in heavily rigged votes and are on their way to being Russian territory protected by Russian nuclear forces as raw Russian conscripts show up at frontline units. In the past few months, the threat of Russia using chemical and even low-yield tactical nuclear weapons has moved from highly unlikely to an imminent threat. 

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 province^{1such 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.