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Danielle Smith’s Sovereignty Act Is Even Worse than Expected

Legislation would give premier and cabinet the powers of a dictator and shred Constitution.

David Climenhaga 1 Dec 2022Alberta Politics

David J. Climenhaga is an award-winning journalist, author, post-secondary teacher, poet and trade union communicator. He blogs at AlbertaPolitics.ca. Follow him on Twitter at @djclimenhaga.

Bill 1, the Alberta Sovereignty Within a United Canada Act, was given the wrong name.

Premier Danielle Smith’s signature first piece of legislation, introduced this week after Lt.-Gov. Salma Lakhani read an otherwise typically lacklustre throne speech setting out the United Conservative Party government’s legislative agenda, really should have been called the Alberta Dictatorship Within a Democratic Canada Act.

While the entire Alberta commentariat — journalists, pundits, professors of political science and economics, rival politicians, social media pontificators and even yours truly — expected some kind of frontal assault attempting to prevent the federal government from enacting laws in federal jurisdiction that annoy Alberta’s current government, Smith has done something quite different and unexpected.

“During the UCP leadership race,” Mount Royal University political science professor Duane Bratt tweeted, “I had assumed (wrongly) that the Sovereignty Act was about asserting Alberta’s sovereignty vis-à-vis federal government. It is actually granting massive new powers to the premier/Cabinet vis-à-vis fed govt, AB legislature, and all Albertans.”

That is to say, Smith has brought forward a law that, unchallenged, would allow the provincial cabinet to unilaterally make laws without consulting the legislature as long as complacent government MLAs passed a motion saying the cabinet needed scope to act to counter some federal incursion into provincial jurisdiction, real or imagined.

“What Danielle Smith is advancing,” said political scientist Emmett Macfarlane of the University of Waterloo, “is an unconstitutional affront to the separation of powers, the principle of parliamentary sovereignty, the powers of the [lieutenant governor], and democracy itself. It cannot stand.”

In other words, Macfarlane continued bluntly, it is “perhaps the most blatantly unconstitutional pile of crap ever introduced in a legislature in modern Canadian history.”

“By Bill 1’s own plainly stated text, a federal law could be a valid exercise of federal authority under the division of powers and the Alberta government could still unilaterally amend law and force provincial entities to defy it,” he said, calling it “a naked assault on the rule of law.”

“Under our system of government, purporting to let cabinet rewrite legislation and bypass the legislature is literally the end of democracy,” he continued. “It’s the evisceration of responsible government and representation. It is — without exaggeration — an attempt to impose a dictatorship.

Interestingly, something similar was considered by Conservative Premier Blaine Higgs in New Brunswick early in the pandemic, and later abandoned.

The New Brunswick legislation would have allowed Higgs and his cabinet to override laws without seeking the approval of the elected legislature, as long as an emergency has been declared. It’s the executive that decides whether or not there is an emergency, so the law would allow the premier and his colleagues to rule by decree.

So, obviously Canadian “conservatives,” like their counterparts in other inconveniently democratic jurisdictions that are growing wise to the danger of neoliberal dogma, have been contemplating measures that would allow them to override democracy to continue to advance their agendas.

It’s also been clear for a while that Smith’s advisors — including her campaign manager and former Wildrose party House leader Rob Anderson and University of Calgary professor Barry Cooper — have wanted to create a constitutional crisis.

Perhaps they will succeed with this, although it seems likely that the first place the Sovereignty Act will be going is to court, where chances are good the judiciary will make short work of it.

University of Alberta political science professor Jared Wesley suggested it is likely to be struck down on three grounds. It attempts an end-run around responsible government (the principle that the cabinet answers to the legislature), it would compel provincial entities to break federal law and it usurps the powers of the judicial branch of government by giving the provincial cabinet the powers of the courts.

Of course, when that happens Smith will have an excuse to pursue a more openly separatist agenda which, while it is unlikely to succeed, will certainly harm Alberta and Canada.

There’s plenty more where these quotes came from, and we can expect to hear a lot more on this story in the days and weeks ahead.

I’ll give the last word today to University of Calgary political scientist Lisa Young, whose thoughtful Substack take on the act sets out several troubling ways the Smith government might use the act to “hurt Albertans at least as much (if not more) as it would hurt the interests of the federal government.”

For example, by ordering police to ignore federal gun restrictions in Alberta’s cities, putting Albertans in the line of fire.

“There is no way that the federal government will allow itself to be seen to be caving in to these antics,” Young concludes. “That would invite every province to give itself the same kind of power. At that point, the federal government becomes entirely ineffective and the Constitution starts to unravel.”  [Tyee]

Read more: Rights + Justice, Politics

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