Criminal Law Power

The criminal law power is a legislative power allocated to Canada’s federal government via the Constitution Act, 1867.  More specifically, section 91(27) of this Act gives Parliament exclusive jurisdiction over “The Criminal Law, except the Constitution of the Courts of Criminal Jurisdiction, but including Procedure in Criminal Matters.”[2] This means that legislation that falls within the scope of section 91(27) must come from the federal Parliament (and not provincial legislatures) to avoid being struck down as ultra vires — i.e. beyond the responsibilities legally allocated to the government.[3]

The Scope of Section 91(27)

The criminal law power is notably broad.[4] According to the Supreme Court’s landmark judgment in the Margarine Reference, section 91(27) extends to any legislation that contains a prohibition, a penalty, and a valid criminal law purpose. In that case, for example, the Court held that a federal ban on the manufacture and sale of margarine was ultra vires, because the true purpose of the ban — protection of the dairy industry — didn’t constitute a valid criminal law purpose.[5]

In general, however, all elements of the criminal law power test (prohibition, penalty, and purpose) have been interpreted liberally by the courts. Prohibitions can include exemptions[6] and regulations,[7] and while the list of valid purposes was originally framed to include “public peace, order, security, health, [and] morality,”[8] this is a non-exhaustive list — neither “frozen in time [n]or confined to a fixed domain.”[9] As a result, recent decades have seen the emergence of new valid purposes alongside novel issues, such as environmental protection or the reduction of tobacco use through restrictions on advertising.[10]

Provincial Governments and the Criminal Law

Jurisdictional disputes will sometimes come up between the federal and provincial governments around the criminal law power. This is because section 92 of the 1867 Act sets out areas of provincial jurisdiction which can sometimes conflict or overlap with the federal criminal law power. Examples include section 92(13), which addresses “Property and Civil Rights in the Province,”[11] and section 92(16), which addresses “Generally all Matters of a merely local or private Nature in the Province.”[12] Where it is unclear if a law falls under one of these sections or section 91(27), courts will resolve the lack of clarity by assessing the pith and substance of the legislation to determine 1) what the dominant characteristic of the law is, and 2) which head of power that characteristic falls under.[13]

Although Parliament has a monopoly over the creation of criminal law and procedure per section 91(27) of the 1867 Act, it is important to point out that provincial governments continue to play an important role in the implementation of criminal law. The administration of justice, for example, is placed within the purview of the provinces via section 92(14),[14] and they accordingly exert significant influence over criminal law through their “decisions to investigate, charge and prosecute offences.”[15] Moreover, the provinces also maintain control over prisons per section 92(6) of the Act, and can legislate punishments (including imprisonment) for provincial laws per section 92(15) — as long as such laws simply enforce other legislation within provincial jurisdiction ).[16]

 

[1] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

[2] Ibid at s 91.

[3] Cambridge Business English Dictionary, (Cambridge University Press, 2011) sub verbo “ultra vires”, (online): <dictionary.cambridge.org> [perma.cc/8T2K-BSXV].

[4] RJR-MacDonald Inc v Canada (Attorney General), 1995 CanLII 64 (SCC) at 201.

[5] Peter Hogg, Constitutional Law of Canada, 5th ed, vol 1 (Toronto: Thomson Carswell) at 18-5.

[6] Supra note 4 at 202.

[7] Supra note 5 at 18-30.

[8] Reference re Validity of Section 5 (a) of the Dairy Industry Act, 1948 CanLII 2 at 50.

[9] Supra note 4.

[10] R v Hydro-Québec, 1997 CanLII 318 (SCC).

[11] Supra note 1 at s 92.

[12] Ibid.

[13] See, for example, Westendorp v The Queen, 1983 CanLII 1 (SCC).

[14] Supra note 5 at 19-2.

[15] Ibid at 18-2.

[16] Ibid at 18-3.

Environmental Jurisdiction

Who Can Regulate the Environment in Canada?

The provincial and federal governments share jurisdiction over the environment.[1] The legislative powers of both levels of government are derived from sections 91 to 95 of the Constitution Act 1867, but these sections do not explicitly allocate power over “the environment” to one level or the other.[2] Consequently, environmental regulation has often been a complex area for governments to navigate.

Federal Environmental Jurisdiction

The federal government can use several of the legislative powers granted to it under section 91 of the Constitution Act, 1867 to regulate different aspects of the environment. These include federal jurisdiction in relation to trade and commerce (91(2)), taxation (91(3)), fisheries (91(12)), Indigenous peoples (91(24)), navigation and shipping (91(10)), and criminal law (91(27)).[3]

For example, the Supreme Court of Canada (SCC) decision in R v Hydro-Québec demonstrates that the federal government can validly regulate the environment under its criminal law power.[4] For the federal government to use this power, its legislation must take the form of a prohibition, backed by a penalty, with a valid criminal law purpose.[5] In Hydro-Quebec, the SCC found that environmental protection was a valid criminal law purpose, and that a federal law that empowered government ministers to regulate the release of certain “toxic” substances into the environment was a valid exercise of the federal criminal law power.[6]

The Federal “POGG” Power

The opening paragraph in section 91 also allows the federal government to regulate matters affecting the “Peace, Order, and Good Government of Canada” (POGG for short). Today, courts recognize three branches of POGG: the national concern branch, the emergency branch, and the residual branch. A recent valid use of POGG in the context of the environment is seen in the References re Greenhouse Gas Pollution Act (GGPPA) from 2021.[7]

In this case, a majority of the SCC found that the GGPPA, a federal law aiming to regulate greenhouse gas (GHG) emissions by implementing minimum national standards of GHG pricing stringency, was constitutional.[8] This case came to the SCC on appeal after the Alberta, Ontario, and Saskatchewan governments asked their courts of appeal if the federal government had overstepped its jurisdiction by passing the Act.[9] In a landmark ruling, the SCC held that federal POGG powers enabled the government to pass the Act.[10] The Court framed the issue of establishing minimum national standards vis-à-vis carbon pricing as a matter of national concern that provincial governments were unable to address on their own (see here for a more comprehensive analysis of the GGPPA decision).[11]

Provincial Environmental Jurisdiction

Like section 91, there is no explicit reference to the environment in section 92, which enumerates most of the provincial government’s legislative powers. However, provinces can regulate the environment through multiple heads of power, including their powers over natural resources (92A), local works and undertakings (92(10)), property and civil rights (92(13)), and matters of a local or private nature (92(16)).[12]

A recent case that highlights the potential for inter-governmental conflict over environmental issues is the Reference re Impact Assessment Act (2023).[13] The Impact Assessment Act is a federal law that allows the government to assess the environmental impact of different types of “designated projects” and to place restrictions on projects with purportedly adverse effects.[14] Here, the SCC found that some sections of the Act were constitutional, but the “balance of the scheme” was ruled unconstitutional due to its overbreadth.[15]

This decision was celebrated by the Alberta government, which had initiated the action against the law. In response, Premier Danielle Smith suggested that the federal government should take the decision as a lesson to “abandon their ongoing unconstitutional efforts to seize regulatory control over the electricity and natural resource sectors of all provinces.”[16]

Following the decision, the federal government proposed amendments to the law to fix its constitutional defects.[17] However, the Alberta government has already criticized the amendments, stating that they are unconstitutional, and that they will consider challenging them in court.[18]

Looking Forward

The recent Canadian case law reflects the extent of intergovernmental tensions over environmental regulation, with jurisdictional disputes continuing across the country. For example, the Government of Saskatchewan decided to stop remitting the federal carbon tax in response to the federal government’s decision to exempt home heating oil but not natural gas from the carbon tax (the latter is widely used in Saskatchewan for home heating).[19] This shows that environmental jurisdiction remains exceptionally contentious in Canada, and will likely result in many future actions in the courts.

 

[1] Peter Oliver et al, The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017) at  494.

[2] Ibid.

[3] Ibid at 495-6.

[4] Ibid at 496.

[5] Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1 at 50.

[6] R v Hydro-Quebec, [1997] 3 SCR 213 at para 146 [Hyrdro-Quebec].

[7] References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11.

[8] Ibid at paras 57 & 221.

[9] Ibid at para 39-46.

[10] Ibid at para.

[11] Ibid at para 167.

[12] Oliver et al, supra note note 1 at 499.

[13] Reference re Impact Assessment Act, 2023 SCC 23.

[14] Ibid at para 5.

[15] Ibid at paras 215-216

[16] Premier Danielle Smith and Minister Mickey Amery, “Supreme Court of Canada ruling: Joint statement”, Government of Alberta (October 13, 2023), online: <https://www.alberta.ca/release.cfm?xID=89093A2A5472B-F26C-C1A2-A129EE73F4A01853>.

[17] David Thurton, “Alberta calls Ottawa’s impact assessment changes unconstitutional”, CBC News (12 May 2023), online: <https://www.cbc.ca/news/politics/impact-assessment-alberta-1.7202785>.

[18] Ibid.

[19] Jeremy Simes “Sask. government introduces law to stop collecting carbon tax on natural gas”, CBC News (16 November 2023), online: <https://www.cbc.ca/news/canada/saskatchewan/government-introduces-law-stop-collecting-carbon-tax-natural-gas-1.7030339>.

Panel Video: Bill C-92 at the Supreme Court

Interview Video: Indigenous Self-Government & the C-92 Reference w/ Lisa Weber

Event Video: Federalism and the Environment w/ Justices Grant Huscroft & Kevin Feehan

Lecture Video: Alain-G Gagnon, 34th Annual McDonald Lecture

The Impact Assessment Act Reference: Interview with Prof Andrew Leach

Alberta Sovereignty Act

What is it?

 

The Alberta Sovereignty Within a United Canada Act (also known as the Sovereignty Act)[1] is a piece of legislation passed by the Legislative Assembly of Alberta on December 8, 2022.[2] It is a novel piece of legislation that provides a process for the Government of Alberta to suspend provincial enforcement of federal legislation or initiatives that the legislature regards as unconstitutional or potentially harmful to Albertans.[3] For example, if the federal government imposed a ban on a certain type of firearm, the provincial government could pass a resolution through the process outlined in the Sovereignty Act and direct the executive branch to cease enforcement of the ban.

 

What are experts saying about it?

 

Since the first draft of the Act was unveiled in November 2022, it has faced criticism from constitutional scholars in and outside of Alberta. The main concern that many of the Act’s critics share is that it arguably allows the Legislative Assembly to usurp the role of the courts. For example:

 

 

By contrast, some commentators have defended the constitutionality of the Act. For example, Geoffrey Sigalet and Jesse Hartery have argued that, as drafted, the Act appears to constitute legislative recognition of the province’s existing power to decline to enforce federal laws.[7] To quote Sigalet and Hartery: "the provincial executive branch is not required to co-operate in the administration of federal laws or programs."[8] 

 

At the time of publishing, the Act has not yet been employed by the provincial government and the federal government has not raised constitutional challenge against it.

 

***

 

[1] Alberta Sovereignty within a United Canada Act, SA 2022, c A-33.8 [Sovereignty Act].

[2] Alberta, Legislative Assembly, Hansard, 30th Leg, 4th Sess, No 6 (December 7, 2022).

[3] Sovereignty Act, supra note 1, s 3(b).

[4] Martin Olszynski & Nigel Bankes, “Running Afoul the Separation, Division, and Delegation of Powers: The Alberta Sovereignty Within a United Canada Act” (December 6, 2022), online: ABLawg <https://ablawg.ca/2022/12/06/running-afoul-the-separation-division-and-delegation-of-powers-the-alberta-sovereignty-within-a-united-canada-act/>.

[5] Emmett Macfarlane, “Alberta's Sovereignty Act passes after amendments — yes, it's still garbage” (December 8, 2022), online: Substack: Declarations of Invalidity <https://emmettmacfarlane.substack.com/p/albertas-sovereignty-act-passes-after>.

[6] Eric Adams, “Danielle Smith didn’t give us a watered-down version of Alberta’s Sovereignty Act” (November 29, 2022), online: CBC News <https://www.cbc.ca/news/canada/calgary/opinion-danielle-smith-breaking-down-alberta-sovereignty-act-1.6668760>.

[7] Geoffrey Sigalet & Jesse Hartery, “Opinion: The Alberta Sovereignty Act appears to be constitutional” (December 1, 2022), online: The Hub <https://thehub.ca/2022-12-01/opinion-the-alberta-sovereignty-act-appears-to-be-constitutional/>.

[8] Geoffrey Sigalet & Jesse Hartery, "Opinion: Alberta's Sovereignty Act is constitutional but needs nuance" (December 7, 2022), online: National Post <https://nationalpost.com/opinion/alberta-sovereignty-act-constitutional-but-needs-nuance>.

[9] Macfarlane, supra note 5.

[10] Ibid.

Student Article: Is the Federal Impact Assessment Act a Trojan Horse?

By Stephen Raitz (CCS Summer Student, 3L UAlberta Law)

Note: This article was completed in August 2023, before the release of the Supreme Court’s decision in the Impact Assessment Act Reference.

Introduction

The Impact Assessment Act (IAA) is a piece of federal legislation that sets out processes for federal oversight of projects that impact the environment in Canada.[1] Though this sounds mundane, the IAA has the potential to have a significant effect on Canadians across the country. For example, it applies to projects that cause noise or pollution, and projects that extract the natural resources and energy that we use in our daily lives (including “mega-projects” like the development of mines, dams, or highways).[2]

In March 2023, the Supreme Court of Canada (SCC) heard an appeal regarding the constitutionality of the IAA.[3] The Alberta Court of Appeal (ABCA) had previously ruled that the IAA was ultra vires the federal government’s authority, which means that the feds lacked the constitutional power to pass it.[4] The SCC’s forthcoming decision on appeal will have important implications for the federal government’s role in environmental regulation and management. If the SCC finds that the IAA is valid, then the federal government can continue to exercise considerable oversight of large development projects across Canada. If it does the opposite, the federal government may be sent back to the drawing board.

Federalism Analysis

To determine if a piece of legislation is within federal powers, courts begin by considering the pith and substance of the law.[5] Another way of describing this is “the basic purpose and effect of the law,” or the essential character of the law.[6] To evaluate this, the courts consider an array of factors, including a law’s contents, the process of passing it, and its legal and practical effects.[7] This is known as the “characterization” stage of federalism analysis.

After defining the pith and substance of a law, the court will then determine whether the pith and substance falls underneath a head of power for the level of government that enacted it. This is called the “classification” stage of the analysis. If the legislation is within one of the enacting government’s heads of power (listed in the Constitution Act, 1867), it is valid. If it is not, it is not valid and can be struck down by the court. Striking the legislation down means it is no longer in force.[8] The court could also trim the unconstitutional parts of the law and/or add parts to the law to make it constitutional, thereby allowing it to remain in force.[9]

This analysis is particularly complicated where the law at issue is an environmental regulation. In the past, the Supreme Court has described the environment as “too diffuse a topic to be assigned by the Constitution exclusively to one level of government.”[10] This is because aspects of many areas of jurisdiction at either level of government have an environmental angle, as the diagram below indicates.

Because the IAA regulates the environment, it is prone to these difficulties. Certain provisions of the IAA very clearly direct for assessment of a development project’s impact on matters under federal jurisdiction (fisheries, navigable waters, birds),[11] but others are less clearly couched under an area of federal jurisdiction (social and economic impacts of projects).[12] It is therefore a very complicated and multi-faceted case.

Understanding the Main Issues

In what follows, some of the key issues are reviewed from the perspective of the appellant (the federal government) and the respondent (the Alberta government). However, many other issues were raised by these parties that are not covered in this article.

Additionally, interveners participated in the SCC hearings, including several other provinces[13] and a range of non-governmental organizations, such as the World Wildlife Fund Canada, Eco-justice, several First Nations, the Canadian Tax-payers Federation, and the Canadian Association of Petroleum Producers. They also raised other issues not covered in this article.

The Federal Government

As the appealing party, the federal government focused on critiquing the ABCA decision and asserting that the IAA is constitutional. In their factum, they claimed that the ABCA improperly took a project-based approach as opposed to an effects-based approach to understanding the IAA.[14] The idea of project-based and effects-based approaches is clarified in the diagram below.

 

 

The federal government also asserted that the ABCA’s approach was inconsistent with the existing case law that favours a co-operative approach to federalism and shared federal-provincial jurisdiction over the environment. The idea of co-operative federalism envisions provincial and federal governments working collaboratively to achieve mutual goals, rejecting a strict approach to defining the powers of each level of government.[15] Applied, this approach often allows overlap between provincial and federal laws.[16]

Above all, the federal government states that the ABCA was wrong to have dismissed federal jurisdiction to regulate the effects that development projects have on federally regulated matters (e.g. fisheries).[17] Relatedly, they also asserted that the ABCA interpreted the province’s ability to regulate natural resources under 92A too broadly.[18]

The Alberta Government

Alberta took the position that the IAA is unconstitutional, describing it as a “sweeping regime” that does not fit under any federal head of power.[19] To them, the IAA treats provinces as “subordinate levels of government” and not equals within Canada’s federal constitutional system.[20] Some of Alberta’s specific concerns with the IAA include that:

1) Even if the federal government can validly regulate under a federal head of power, they may deny the project based on grounds beyond that federal head of power.[21] For example, Alberta explained that the IAA could allow the federal government to assess a project under its fisheries power (section 91(12) of the Constitution Act, 1867), but ultimately make a decision based on a litany of other factors, including broad public interest considerations.[22]

2) The IAA is focused on regulating physical activities themselves and not their effects due to the comprehensiveness of the regulatory regime, in that section 64 of the IAA allows the feds to place conditions on and monitor relevant projects.[23] To Alberta, this means the IAA extends into and undermines areas of exclusive provincial jurisdiction, including natural resource projects and electricity generation facilities.

To summarize, Alberta’s viewpoint is that the IAA is a “Trojan horse,” which goes far beyond regulating effects of large projects on matters within federal jurisdiction and invades areas of provincial jurisdiction.[24]

Conclusions: Is the IAA Really a Trojan Horse?

The federal expansion of some facets of the environmental impact assessment process does not necessarily mean that the IAA is a Trojan horse galloping unconstitutionally into provincial areas of jurisdiction. Rather, one may argue that prior (more minimal) federal approaches to environmental impact assessment were examples of “federal deference for provincial preference,” meaning that the federal government opted not to regulate in the past — despite having constitutional jurisdiction to do so — because they deferred to the provinces in these areas.[25] However, Alberta’s submissions raise important questions that could result in the IAA receiving a bit of a trim, at the very least. For example:

Question 1: How far can the federal government go with its POGG powers?

The federal government’s power to make laws for the “peace, order and good government of Canada” (or POGG for short) has been used to uphold environmental regulations in the past. How far does this power allow the feds to go, though, in regulating major projects that have interprovincial impacts?[26]

Question 2: Can the federal government assess under one power, but decide under another?

Alberta’s concern that an assessment initiated under the guise of something like the fisheries power, but decided based on other public interest considerations, presents the Court with the opportunity to finesse its direction provided over thirty years ago in Friends of Old Man River. There, the Court said that environmental assessment can be broad and may consider potential consequences for “a community's livelihood, health and other social matters from environmental change.”[27] Presumably, though, there’s a limit to the role that these factors can play. In this regard, Alberta highlighted other parts of the Friends of Old Man River decision, which suggested that the scoping of the assessment will depend on what federal head of power is being relied on.[28]

***

To conclude, federal attempts to regulate environmental impacts are not necessarily Trojan horses seeking to invade provincial jurisdiction. Engaging the counter-factual is vital here, as Greckol J does in her dissent at the ABCA.[29] As she suggests, the province could validly say “no” to a major project under section 92(10) of the Constitution (local works and undertakings), while the feds could say “yes” to the same major project under section 91(12) due to a lack of negative impacts on fisheries or other matters within federal jurisdiction. In this scenario, the province would not have stymied the federal government’s ability to say “yes” to the project. Rather, the federal government’s approval is simply insufficient in making the project move forward based on environmental considerations.

That said, it is worth reiterating that the heads of power being relied on by the federal government may support varying scales of intrusion into areas of provincial jurisdiction.[30] If the Court finds that the power being relied on does not support such broad federal intervention, and if it is possible to read down the legislation in those areas, the SCC could try to give the law a trim to better reflect the scope of those heads of power. Or, if the Court embraces broader acceptance of Alberta’s position — that the federal law is truly a “Trojan horse” that massively intrudes into provincial jurisdiction — it could also end up taking the IAA or substantial parts of it to the glue factory.

 

[1] Impact Assessment Act, SC 2019, c 28, s 1 [IAA].

[2] David V Wright, The New Federal Impact Assessment Act: Implications for Canadian Energy Projects, 2021 59-1 Alberta L Rev 67 at 72.

[3] Elise von Scheel, “Supreme Court examining controversial environmental assessment law this week”, CBC News Calgary, March 21, 2023.

[4] Reference re Impact Assessment Act, 2022 ABCA 165 [ABCA].

[5] Peter W Hogg & Wade Wright, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters Canada) ch 15, § 15:4–5.

[6] Ibid.

[7] Ibid.

[8] R v Big M Drug Mart, [1985] 1 SCR 295 at 355-356, 18 DLR (4th) 321.

[9] R v Smith, 2015 SCC 34 at para 31; Schachter v Canada, [1992] 2 SCR 679, 93 DLR (4th) 1.

[10] Friends of Oldman River Society v Canada, [1992] 1 SCR 3, 63, 64, 70 (FORS); POGG, 5th edition 2022 (30:31)) [FORS].

[11] IAA, s 2.

[12] IAA, s 22.

[13] This includes Ontario, Manitoba, NB, and Quebec. BC also intervened and proposed a different approach, which supported allowing the federal government to assess projects, but not to have ultimate approval or denial powers over whether a project proceeds.

[14] Appellant Factum, paras 1-5.

[15] Eric M Adams, “Judging the Limits of Cooperative Federalism” (2016) 76 SCLR (2nd); Quebec (AG) v Canada (AG), 2015 SCC 14 at para 17 .

[16] Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 149.

[17] Appellant factum, paras 32, 51-56.

[18] Appellant factum, paras 143-148.

[19] Respondent factum, para 14.

[20] Respondent factum, para 22.

[21] Respondent factum, paras 76-77.

[22] Respondent factum, para 77.

[23] Respondent factum, paras 108-112.

[24] Respondent factum, paras 145-146, citing FORS at 71-72.

[25] Marie-Ann Bowden and Martin Olszynski, “Old Puzzle, New Pieces Red Chris and Vanadium and the Future of Federal Environmental Assessment” 2011 89-2 Canadian Bar Review 445 at 480; William R MacKay, “Canadian Federalism and the Environment: The Literature” (2004) 17 Geo Int’l L Rev 25 at 34.

[26] R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401 at 417 and 438; Interprovincial Co-operatives Ltd et al v R, [1976] 1 SCR 477 at 513-514 and 520.

[27] FORS at para 37.

[28] FORS at 67.

[29] ABCA at para 758.

[30] FORS at 67.

Q&A with Professor Emmett Macfarlane: The Alberta Sovereignty within a United Canada Act

In this Q&A, CCS summer student Stephen Raitz talks to Professor Emmett Macfarlane (University of Waterloo, Department of Political Science) about the constitutional implications and potential future of the recently passed Alberta Sovereignty within a United Canada Act. Professor Macfarlane argues that the Sovereignty Act is not only unconstitutional, but anti-constitutional, too.

 

Q: Starting with the basics: what does the Sovereignty Act purport to do?

 

A: The Sovereignty Act purports to allow Alberta’s legislative assembly to determine whether a federal law violates the constitution and, read plainly, it purports to permit the provincial cabinet to direct “provincial entities” — defined to include provincial agencies, municipalities, universities, and even police forces — to ignore or potentially even violate federal law. The Act was explicitly framed by Premier Danielle Smith as giving Alberta the same type of power that Quebec enjoys (although it is worth noting that Quebec has never tried to enact a law like it and does not enjoy such power).

 

Q: Are there any other examples — in Canada or elsewhere — where a provincial or state government has attempted to pass a piece of legislation like the Sovereignty Act? For example, are there similarities between the Sovereignty Act and the recently passed Saskatchewan First Act? And if there are, why are we seeing these types of initiatives right now?

 

A: I’m not aware of a constituent unit in another federal country that has enacted a legislative framework quite like the Sovereignty Act. One of the reasons the Sovereignty Act is so controversial is that it basically usurps the traditional role of the judiciary to determine the constitutionality or validity of legislation passed by another order of government. Even the Saskatchewan First Act, which purports to assert jurisdiction and contains its own controversial provisions — including provisions asserting unilateral amendments of the Constitution Act, 1867 and the Saskatchewan Act, 1905 (these are plainly unconstitutional: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4156421) and establishing “economic impact assessments” of federal legislation — is not quite so broad in its framing as Alberta’s Sovereignty Act.

I believe there are multiple factors that explain why legislation like this was enacted now, and they interact in complex ways. These factors include: right-wing populist appeal and the ideology of Alberta’s current government; a somewhat subtle but important shift in tactics with respect to intergovernmental relations (for example, many of Smith’s other initiatives and plans with respect to federal and provincial policy, such as floating a provincial police force and a provincial pension plan, are modelled quite explicitly on Quebec nationalism); and a reaction to federal assertiveness in environmental regulation, particularly around carbon pricing, environmental impact assessments, and pipelines. What it is not is particularly coherent or principled concerning federalism or the division of powers.

 

Q: Despite all the press it has received, the Alberta government has not used the Sovereignty Act yet. How likely is it that the Act will ever be used? And are there particular federal laws that could be targeted by the current AB government, or is the Act more a matter of political posturing?

 

A: There is certainly an element of political posturing driving the legislation. It is worth noting that, strictly speaking, the Sovereignty Act is simply unnecessary for the Alberta legislature to pass future laws relating to its own jurisdiction. If Alberta wanted to enact a legislative response to federal initiatives, it could always do so — the question would simply be whether such legislation was constitutional within whatever context it emerged. The Sovereignty Act is thus in many ways symbolic, although how and when the government might issue orders to “provincial entities” respecting federal initiatives, and what the nature of such orders might be, seems to be the primary issue. It is therefore difficult to predict when and how the Sovereignty Act might be employed, but that will ultimately come down to the government’s political calculus, not the law, because one order of government cannot “declare” a law of another order of government unconstitutional in any meaningful sense.

 

Q: How might a legal challenge to the Act materialize? And if it did, what specific constitutional rules or principles might be at play?

 

A: We’ve seen a number of arguments respecting the Sovereignty Act’s legal constitutionality. As I’ve noted, the Act effectively presumes that the legislature can usurp the role of courts with respect to determining the constitutionality of another order of government’s law. Martin Olsynski and Nigel Bankes have written that, arguably, there is simply no legislative authority for the Act, and that its very pith and substance is to create an unconstitutional framework for passing judgment on federal initiatives (see here: https://ablawg.ca/2022/12/06/running-afoul-the-separation-division-and-delegation-of-powers-the-alberta-sovereignty-within-a-united-canada-act/). They argue that the Act may thus violate section 96 of the Constitution Act, 1867 by impairing the independence and impartiality of the courts.

I’ve written that the very purpose of the Act might be regarded as unconstitutional because it seeks to target and even obstruct the operation of federal law. It is important to note, though, that there is no specific provision of the Act that constitutes a direct intrusion on federal jurisdiction. In this regard, it is not clear what the courts would say about this “purposive” critique in a legal sense.

Rather than constituting an infringement on a specific head of federal power, the Act stands as an attack on the very foundation of the division of powers. A “structural” view of the Constitution would therefore conclude that the Sovereignty Act stands on a very weak legal foundation. Similarly, the Act plainly flies in the face of the unwritten principles of federalism and the rule of law, and while the Supreme Court’s decision in City of Toronto v Ontario makes it clear that a law cannot be invalidated on the basis of unwritten constitutional principles alone, the Sovereignty Act may still be unconstitutional in the broader sense of the spirit of the Constitution, even if not in the legal sense.

 

Q: Some defenders of the Act's constitutionality have referred to previous examples of provinces choosing to not enforce federal legislation, including Quebec’s decision to stop enforcing the criminal law on abortion in the 1970s. Is this a fair argument? If not, what distinctions would you draw between what the Sovereignty Act does and those other instances of provincial non-enforcement?

 

A: I don’t think the comparison is particularly effective. There is a valid scholarly debate about whether provinces can refuse to enforce federal law, but I don’t think most reasonable observers would say, for example, that a province could validly stop enforcing all criminal law. The Supreme Court has spent far too much energy promoting a collaborative and working federalism for that to be permissible. And that’s the fundamental problem: the terms of the Sovereignty Act don’t contemplate a workable federation or division of powers. It is gateway legislation that, if read plainly, opens the door to the provincial government deciding to obstruct federal law whenever it wishes or it gets a stamp of approval from the legislature that it controls. By contrast, Quebec’s decision in the 1970s took place in a very circumscribed and specific context. Quebec had attempted repeatedly to prosecute Dr Henry Morgentaler for breaching anti-abortion laws, and its decision to stop enforcing them came only after he was acquitted in multiple jury trials.

It is true that there would be nothing stopping the federal government from stepping in to enforce its own laws. But the Sovereignty Act doesn’t just contemplate non-enforcement, it seems to pave the way for active non-compliance or even violation of federal law. Section 2(b) of the Act explicitly carves out a loophole for “provincial entities” to do so. In this sense the law is not so much unconstitutional as it is anti-constitutional.