Federal options to deal with Alberta ‘sovereignty’ limited
Feds have power, but would they ever use it?
The federal government is not without options if it wants to fight the Alberta Sovereignty Within a United Canada Act. It could invoke the archaic and arguably dormant federal power called “disallowance” to declare the act null and void.
The power, a holdover from the days when Britain wanted to keep the colonies in check, was commonly used in the early decades of confederation, but its usage tapered off as the courts became the main venue to litigate jurisdictional disputes. The last time it was invoked was in 1943, to stop Alberta legislation banning the sale of land to Hutterites and other enemy aliens during the Second World War.
What can the federal government do?
Disallowance is a legacy power that basically allows the federal government to squash any provincial legislation. It has been used 112 times, largely against Manitoba and British Columbia, and remains in the Constitution Act, 1867, but hasn’t been used in decades.
In all likelihood, the sovereignty act will end up in court. Or, if the Alberta New Democrats win the 2023 election, it’s likely that the law would be repealed.
Disallowance is still a hypothetical possibility, though not actually all that likely to be used, said Eric Adams, a constitutional law professor at the University of Alberta, in an interview before Alberta tabled the act.
“We have this curious feature of Canada’s Constitution in which powers which exist on the page and which remain in the text are nonetheless seen by some as to have been abandoned,” Adams said.
Alberta Justice Minister Tyler Shandro’s office said in a recent statement that if disallowance were invoked, it would “provoke a constitutional crisis.”
“While we do not trust the federal government or this Prime Minister, we believe this scenario is unlikely,” the statement said.
Why is disallowance unlikely?
There are a handful of powers that remain in Canada that are legal but really would fly in the face of decades of constitutional convention, said Emmett Macfarlane, a constitutional expert at the University of Waterloo. One example is King Charles stepping in to give a Governor General the boot. It’s unlikely, but still possible.
“We always have these extreme scenarios in the back of our mind for why the institutions exist the way they are,” said Macfarlane.
It’s the same basic situation with disallowance. Using it would spark a constitutional crisis. It would take a constitutional crisis of overwhelming proportions — say, attempted unilateral secession — for such a power to be seen as a solution to the crisis and not a crisis itself.
“So it’s a kind of a legal green light but a political red light,” said Macfarlane.
But the Liberals could use it?
Theoretically, yes. But that’s about it. When asked about doing something to prevent Ontario’s use of the notwithstanding clause to force a contract on school support workers, Trudeau said he’d prefer the federal government not get involved.
“It would be much better if instead of the federal government having to weigh in and say, ‘You really shouldn’t do this, provincial governments,’ it should be Canadians saying, ‘Hold on a minute. You’re suspending my right to collective bargaining? You’re suspending fundamental rights and freedoms that are afforded to us in the Charter?’” he said.