Since Alberta Premier Danielle Smith first introduced the Alberta Sovereignty Within a United Canada Act over two years ago, the bill has generally provoked two conflicting reactions.
The first is an alarmist outcry among the press and from some constitutional scholars. One scholar went so far as to call it “the most unconstitutional bill in Canada’s modern history.”
The second is that it is an empty expression of populism—a case of performative politics over substance. Columnist Andrew Coyne for instance has contended that the law is nothing more than “a sham.”
We disagree with both of these viewpoints. At the time, we argued in The Hub that the law appeared facially valid. We also envisioned that though every use of the law wouldn’t necessarily be advisable, it didn’t just need to be a paper tiger either. It could prove to have legal and political utility.
After two years, it’s fair to say that our analysis has held up. The big picture is that Smith has so far used the law in constitutional and constrained ways and that far from being “pointless,” it’s served as an instrument for Alberta to advertise its opinion about the constitutionality of certain federal policies and signal its determination to refuse to cooperate.
This approach appears to have paid off because the federal government has been forced to compromise on some policies. And the potential trade war with the U.S. has once again brought to the fore the fact that there is an ongoing debate about whether Alberta’s restraint is warranted in the circumstances.
The genesis and evolution of the Sovereignty Act
In 2021, the Supreme Court issued an advisory opinion in the References re Greenhouse Gas Pollution Pricing Act, which featured a dissent from Justice Russell Brown predicting that it would lead to “serious tensions in the federation.” Following this, the Alberta Institute published the “Free Alberta Strategy.”
Within the document, there was a proposal for an Alberta Sovereignty Act. Part of it contemplated ousting the role of courts. Smith campaigned on this proposal during the United Conservative Party’s leadership race.
Despite its origins, Smith’s website framed it as focusing on “provincial non-enforcement of specific federal laws or policies.” The language about preventing “judicial interference” didn’t appear on the website, but concern remained about whether Alberta would respect court decisions. Following her election as UCP leader, Smith indicated that Alberta would do so.
The day after the premier’s maiden speech on the bill, we explained that this version of the proposal appeared to be legally valid. But we acknowledged that the text was potentially susceptible to a different interpretation. We also made clear that its constitutionality depended in part on how it was operationalized in practice.We were joined in that assessment by former Supreme Court Justice Jack Major. We explain our position in further detail in a recent podcast.
To be fair, some critics joined us in criticizing Henry VIII clauses, which allow the executive to amend laws passed by the legislature. This was amended, but it did not satisfy the critics.
Alberta’s application of the Sovereignty Act
Alberta’s use of the Sovereignty Act so far is consistent with our view of its constitutionality. It has been invoked with respect to the proposed Clean Electricity Regulations in 2023 and the proposed Emissions Cap Regulations in 2024.
