Legal Brief for September, 2022

Sovereignty Act - A Good Idea Or Total Nonsence?

There has been much publicity lately about the notion put forward by a candidate running in the campaign for a new leader for the United Conservative Party that Alberta should enact what has been termed a Sovereignty Act.  The purpose of such an Act would be to purportedly give the Province of Alberta the right to ignore any federal government laws that were deemed to be contrary to the best interests of Alberta.  The Act has been proposed in the guise of "needing to stand up for Alberta" against a federal government that is allegedly bent on among other things "destroying the Alberta economy".  (The recent announcement by the Alberta government that it will have a $13 billion surplus this year certainly puts that notion to the test.)

Alberta is part of what is known as a federal system of government.  A federal system features a national level of government, which has the right to pass laws that apply across the entire country.  The system then has a set of 2nd level governments for the various territories in the country, which have the right to pass laws which apply only within the boundaries of that territory.  In Canada those units are known as provinces while in the U.S.A. they are known as states.

There is already in the Canadian federal system a process for one level of government to take action if it believes that the other level of government has passed a law which is beyond the rightful powers of what it has jurisdiction over.  This process is known as determining whether a law is ultra vires the jurisdiction of the government that passed it (meaning that it did not have the legal right to pass a law for that matter) or whether the law is intra vires the government (meaning that it was within the legal jurisdiction of that government).  If it is determined for example that a law passed by the federal government is intra vires, then the federal government has the right to have the law take effect across the country and to enforce its provisions in all provinces, regardless of whether the government of one of the provinces does not like or agree with the law.  In a democratic state the ultimate right of the citizens if they are opposed to a law is to try to vote in a new government at the next election, or to try to amend the constitution of the country to change the powers that each level of government is responsible for.

The British North America Act which was passed by the U.K. parliament in 1867 to create Canada had a listing of what areas the national (federal) government could pass laws in and the areas that the provinces could pass laws in.  The inherent principle of the Act is that one level of government cannot pass laws that the other level of government has exclusive jurisdiction for.

Our courts are the forum which determines whether one government's laws are ultra vires or intra vires.  A recent example of a law tested for this purpose was the federal government's carbon tax law.  The governments of Alberta, Saskatchewan and Ontario brought legal challenges to the validity of the tax, arguing that it was ultra vires of the federal government.  The various court actions were tried as one case by the Supreme Court of Canada, and the law was ruled as being lawfully within the jurisdiction of the federal government.  The proposed so-called Sovereignty Act is a direct and blatant flouting of the principles of a federal system of government.  Once a territorial unit is part of a federal system of government it has to take so to speak the good with the bad.  Imagine the chaos that would ensue if every province of Canada decided to enact its own version of the Sovereignty Act.  The logical end result of such a set of circumstances would appear to be the elimination of a need for a national government, and just let all of the provinces go their own way as independent nations.  Perhaps this scenario is what lays behind the thinking of the candidate who has proposed this ill conceived and quite frankly bizarre concept of a Sovereignty Act.