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Opinion: The Alberta Sovereignty Act appears to be constitutional

Commentary

Premier Danielle Smith has officially unveiled the Alberta Sovereignty Within a United Canada Act, one of her most widely discussed policies. While the debate surrounding the merits of the policy will now begin in earnest, it appears to be constitutionally compliant based on existing law.

It was not always clear what shape this bill would take, and much remains open to debate. The idea of a law protecting Alberta’s sovereignty was thrust into political discussions by a report called the Free Alberta Strategy. The authors of the report, Rob Anderson, Barry Cooper, and Derek From, advocated, among other things, a law that would authorize Alberta’s legislative assembly to:

refuse enforcement of any specific Act of Parliament or federal court ruling that Alberta’s elected body deemed to be a federal intrusion into an area of provincial jurisdiction, or unfairly prejudicial to the interests of Albertans.

This would unconstitutionally oust the jurisdiction of courts in defiance of the rule of law. The idea was reminiscent of South Carolina’s attempt to “nullify” federal laws during Andrew Jackson’s presidency, a dark chapter in the states’ rights controversies that would eventually lead to the Civil War. But Smith’s official description of her plan on her campaign website and the comments following her election as leader of her party did not seem to embrace the idea of nullification. Instead, they focused on provincial non-enforcement of federal laws or programs. And with good reason. As one of us noted elsewhere, a province cannot relieve someone of an obligation to comply with federal laws or ignore court rulings declaring provincial action unconstitutional. However, a province can decline to implement and enforce federal laws or programs.

A province’s ability to do so stems from the division of executive authority outlined in the Constitution, which is a fundamental aspect of Canada’s federal structure. Each order of government has its own executive branch, which is accountable to its legislature and can be tasked with executing its laws. It is not required to implement and enforce the laws or programs of another order of government.

While the Supreme Court of Canada has permitted administrative inter-delegation between the orders of government, it has held that the provinces and the federal government have no “positive obligation” to cooperate with each other. The Court permits and encourages cooperation, but it has never mandated it. Indeed, the Court has held that provinces and the federal government “are coordinate and not subordinate one to the other.” And history shows that the provinces have availed themselves of the ability to decline enforcement of federal laws.

This brings us to the bill released on Tuesday.

The proposed law begins by making clear that it should not be “construed” as “authorizing any order that would be contrary to the Constitution of Canada”. It then operationalizes the distinction mentioned above and notes that it does not authorize a directive to “a person, other than a provincial entity, that compel the person to act contrary to or otherwise in violation of any federal law”. In other words, the Alberta Sovereignty Within a United Canada Act and the orders made under it do not and cannot relieve individuals from their obligation to comply with federal laws.

That being said, one point merits clarification because the latter clause exempts a “provincial entity” from its scope. On the one hand, this could be read as permitting provincial officials from refusing to comply with federal laws of general application, which cannot be done. On the other hand, in our view, when read in conjunction with the indication to avoid construing the law in a manner “that would be contrary to the Constitution of Canada”, the proposed law exempts provincial entities because it is directing them, in their executive capacity, to contest the reach of federal laws should that be necessary. For instance, if a federal law or program mandated provincial implementation or enforcement of federal laws, which is unconstitutional, the provincial executive could decline to obey that aspect of the law.

To use an example: provincial officials can be required to comply with laws of general application in the Criminal Code if they choose to engage in such activity, but the provincial executive branch is not required to investigate and prosecute the offences carried out by their own provincial officials. Therefore, the bill does not and cannot authorize provincial nullification of federal laws.

Instead, the proposed legislation appears to be focused on the issue of provincial non-enforcement, which is wholly constitutional. It bears noting that, when the provinces do decline to enforce federal laws, they usually do so through executive action. In addition, the provinces need not justify their decisions to decline enforcement of federal laws. These decisions are usually announced through a press release or ordinary legislative action without much fanfare.

In this case, section 3 of the Alberta Sovereignty Within a United Canada Act goes beyond that requirement by providing the grounds on which the legislature may approve a resolution—that is, if, “in the opinion of the Legislative Assembly”, a federal initiative: (i) intrudes into provincial legislation jurisdiction; (ii) violates the rights and freedoms of Albertans under the Canadian Charter of Rights and Freedoms; or (iii) causes or is anticipated to cause harm to Albertans. In other words, the law requires the legislature to provide reasons for declining enforcement of federal laws or programs.

The province can even decline to enforce federal laws if the courts rule that those laws are constitutionally compliant. For example, if the Supreme Court had held that Canada’s abortion laws were constitutionally compliant in 1988 instead of striking them down, Quebec would still have been under no obligation to enforce them itself. It could express its disagreement with the courts and require the federal executive to enforce the laws itself, with its own funds.

While this does not prevent the federal executive from enforcing its own laws, declining provincial enforcement can sometimes be effective in practice because the federal government often relies on provincial cooperation. Accordingly, there is no doubt that this legislation will have teeth. And indeed, historically, the Canadian provinces and sub-national entities in other federal systems have used non-enforcement as a structural protection of liberty and a check on government power. The actions taken by some American states and cities in response to some of former President Donald Trump’s policy decisions are perhaps the most prominent recent example. But as long as Alberta limits itself to provincial non-enforcement, its actions are constitutionally compliant based on existing law.

More controversially, the bill includes so-called “Henry VIII clauses”, which allow the executive to amend laws passed by the legislature. Some have argued that these clauses are fundamentally undemocratic because they circumvent the legislative process. And indeed there is a proper concern in Canadian democracy about the expansion of executive power, particularly the power of the prime minister or premiers, at the cost of cabinet and the legislature. Henry VIII clauses may contribute to this problem. While we believe those advancing this position raise important points, we note that these clauses have not been held to be unconstitutional. Indeed, the Supreme Court recently reaffirmed their constitutionality in the References re Greenhouse Gas Pollution Pricing Act, over the objection of Justice Côté’s dissent on this point.

We would add that the Henry VIII clauses deployed in this bill appear to be less democratically objectionable than those previously endorsed by the Supreme Court. The purpose of the clauses at issue here, as we understand them, is to give effect to a resolution of the legislature. Put differently, rather than have every relevant provincial law amended through the legislative process, the Alberta Sovereignty Within a United Canada Act provides that, once the legislature has made its policy choice known through a resolution, the executive has the tools to operationalize that democratic decision.

That is, the bill does not provide the executive with the discretion to amend any provincial law at will. It can only do so in an effort to give effect to a resolution approved by the legislature. Crucially, any such amendments must comply with the Constitution. In some cases, no change will be needed because provincial non-enforcement can be done through ordinary executive decision-making. However, in cases where provincial legislation speaks to the method of enforcing federal laws or cooperating with the federal government, the legislation at issue will need to be modified to reflect the legislature’s policy decision.

In sum, the Alberta Sovereignty Within a United Canada Act as written appears to be constitutional and consistent with our constitutional tradition, in which federalism is a foundational principle that does not entail central domination. This does not mean the provinces should decline to enforce federal laws, but simply that the Constitution does not prevent them from doing so.

Steve Lafleur: You want to support workers? Build more housing

Commentary

Labour negotiations are often fraught. This is particularly the case with workers in the education and health-care system. It’s understandable that people feel especially sympathetic towards people who are there for them when they’re sick, or people who help care for their kids. It’s no surprise that people will casually mention that they think teachers or nurses are underpaid.

I’m not here to tell you how much we should pay any particular group of workers. What I wonder, though, is why no one brings up housing when they talk about how, say, educational assistants are underpaid. After all, housing is one of the biggest expenses most people face. Especially in big, expensive cities like Toronto or Vancouver. Increasing the taxable income of health care or education employees by a few percentage points would obviously help them pay the bills. 

But do you know what would be really helpful for educational assistants or nursing assistants? Paying five hundred dollars less a month in rent. 

I didn’t pull that number out of thin air. That is roughly the amount by which average rents increased between October of 2012 and October of 2021 in Toronto according to the Canadian Mortgage and Housing Corporation (the story is similar in Vancouver). Put another way, that’s about $6000 per year. And, remember, this is after-tax spending. To earn an extra $6000 after tax, someone earning $40,000 per year in Ontario would have to earn around $8000 extra per year.Someone earning $40,000 in Ontario would fall into the first federal and provincial tax brackets, which are 15 percent and 5.05 percent, respectively. In addition to the 20.05 percent marginal tax rate they would face on that additional $8000, they would also have higher CPP/EI premiums. This would lead to a reduction of after-tax income of around $2000, or around a quarter of that incremental income. In other words, in order to get the equivalent of a $500 rent decrease, a single worker earning $40,000 would require a twenty percent pay increase.

It isn’t just that working-class people are paying more for rent. It’s also that in many cases they have to commute from further than they might have ten years ago. As the most desirable neighbourhoods in the city core get pricier, it’s harder for people earning less than six figures to live in the most walkable transit-accessible neighbourhoods. While urban professionals get to walk or take a short train to the Financial District, an educational assistant or nursing assistant might need to take a bus or two in from the suburbs or endure a punishing drive.

The irony is that much of the housing that the upper middle class now lives in was working-class housing not so long ago. My neighbourhood in East Toronto is a perfect example. It’s a classic streetcar suburb where most of the houses are what we now refer to as the “missing middle.” Rowhouses, semi-detached, townhouses—the sort of houses where working-class people used to be able to raise a family. As of October of 2022, the average price in my neighbourhood was over a million dollars (down from a peak of over $1.4 million).I rent, so don’t get too jealous. And most of the houses here aren’t especially fancy. But we haven’t built this kind of cozy yet walkable neighbourhood in a long time. 

Toronto townhouses. Photo credit: Steve Lafleur.

It’s not that people don’t want to live in neighbourhoods like mine. People aren’t paying a million dollars for a small, attached house for no reason. It’s that most of the GTA wasn’t zoned for anything other than single-detached housing. Roughly two-thirds of residential land in Toronto is zoned for single-family houses only. While recent changes by the Ford government are a big step toward building this sort of housing again, more action is needed. 

We don’t just need to change the rules. We also need to change our attitudes. After all, we didn’t keep denser housing out of newer neighbourhoods because we wanted to make housing a luxury good. It’s that a lot of people are perfectly happy with how things are. If you’ve got a comfortable detached house within walking distance of a subway stop, you’re probably fairly content. Surely other people can just move somewhere else? If enough people feel that way—and are willing to tell their city councilors—things don’t change. 

We need to get past the idea that existing homeowners should always be privileged over prospective residents. Because education and health-care workers need to live somewhere too. Paying them a bit more is a nice thought. Allowing them to live in your neighourhood would be even better.