Can Danielle Smith’s Sovereignty Act Hold Up in Court?

Danielle Smith has set herself apart in the UCP leadership race by vowing to enact the Alberta Sovereignty Act (the “Sovereignty Act”). Many commentators question the legality and wisdom of such legislation. But there is more nuance to law and policy than can be found in media soundbites. The constitutionality of the Sovereignty Act is very much an open question. What is more, while Smith’s Act represents misguided policy, it can serve as the basis for more productive initiatives to defend Charter rights through limited provincial non-enforcement.

First things first, the Sovereignty Act would be a revolutionary piece of legislation. Danielle Smith has not published a detailed blueprint of the Act, but her public comments are ambitious. She has stated that her Act would broadly empower the “provincial government to refuse to enforce any law that attacks Alberta’s interest or our provincial rights.”[1]

It is not clear that the Sovereignty Act would exceed our province’s constitutional powers.

Our Constitution is neutral on whether federal or provincial entities should enforce federal laws. The proposed Act would allow Alberta’s government to refrain from enforcing undesirable federal laws, but the Federal government would necessarily retain the power to directly enforce those laws within Alberta. Institutional arrangements under which provincial entities do not enforce classes of federal law are fully within bounds. The Supreme Court has, for instance, held that the federal Criminal Code could potentially be exclusively enforced by the federal government. Provinces thus only enforce the criminal law because Parliament has freely delegated this task to them.[2]

The federal government probably cannot legally bind Alberta’s government to enforce all federal laws by means of a voluntary delegation of power. After all, provinces are “inherently sovereign” in their own jurisdiction and thus “will always retain the ability to resile” from an interjurisdictional scheme.[3] Indeed, provincial governments have long refused to enforce select criminal laws as a matter of public policy.[4] Examples abound, from Quebec’s refusal to enforce the federal abortion ban during the 1970s,[5] to  British Columbia and Ontario’s defiance of the federal Firearms Act during the 2000s, [6] along with Saskatchewan’s rejection of the federal long-gun registry shortly thereafter,[7] until Quebec’s statutory repudiation of the federal Euthanasia ban in 2014.[8]

Principles of federal-provincial comity probably do not bar Alberta from constitutionally exercising its prerogative to selectively refrain from enforcing some federal offences simply because this would undermine federal law enforcement. The Supreme Court affirmed in the Quebec (AG) v Canada (AG) that the Constitution does not “impose a positive obligation to facilitate cooperation where the constitutional division of powers authorizes unilateral action.” Consequently, when the Harper Government abolished the federal long gun registry, it did not need to facilitate Quebec’s creation of a provincial replacement by handing over all federal data on Quebecois long gun owners.[9] To put it bluntly, the Constitution allows provincial and federal governments to ‘play hardball’ in exercising their ordinary constitutional powers.

As the federal government is entirely capable of enforcing its laws without provincial assistance, it is likely not apt to apply the competing maxim that federal and provincial powers “may not be used in a manner that effectively eviscerates another.”[10]

Ironically, the same feature of the Sovereignty Act that might render it constitutional would also render it counterproductive in the long run: no federal government worth its salt would stay idle while its flagship initiatives are routinely defied in in Alberta. If push came to shove, the Federal government could—and would—directly enforce its own regulations through the Federal RCMP. Any provincial resistance at this stage would be lawless. Broad invocations of the Act would thus paradoxically greatly expand the federal government’s presence in Alberta.

Smith and her supporters would be well-advised to narrow their provincial non-enforcement proposal to cases where, in the provincial government’s considered judgment, a federal law violates the Charter rights of Albertans. This would allow the provincial government to set a distinct course on some human rights issues of key import to Albertans: vaccine mandates, emergencies act invocations, and restrictions on online speech. But it would also keep the political costs to the federal government sufficiently small as to stave off an increased federal presence in Alberta.

If the courts do strike down the Sovereignty Act as an indirect breach of the constitutional division of powers, this might lead to a reappraisal of indirect federal interferences with provincial jurisdiction such as the federal spending power. The federal spending power allows the federal government to make monetary grants to the provinces conditional on matters that have no connection to federal jurisdiction provided that said conditions are “not in substance legislation on a provincial matter.”[11] If a provincial failure to enforce a federal law indirectly violates the constitutional division of powers, then surely the same must hold when the federal government denies a province benefits that the province was taxed for until the province agrees to follow federal policies in areas of exclusive provincial jurisdiction. Even if the Sovereignty Act fails, it might leave a deep impact on our constitutional jurisprudence.

In sum, there is a strong argument that Alberta could constitutionally enact Smith’s Sovereignty Act, but it would be improvident to realize this vision as it stands. A more cautious approach to provincial non-enforcement will likely yield better results for provincial autonomy in the long run.

[1] Tyler Dawson, “UCP Leadership Contender Danielle Smith Wants Alberta to Ignore Federal Laws It Doesn't Like,” The National Post (17 June 2022), online: <https://nationalpost.com/news/politics/ucp-leadership-contender-danielle-smith-wants-alberta-to-ignore-federal-laws-it-doesnt-like>.

[2] Canada (AG) v Canadian National Transportation Ltd, [1983] 2 SCR 206 at 223

[3] Reference re Securities Act, 2011 SCC 66 at para 119 (original citation applied to interprovincial schemes, but there is no reason why the same logic would not equally apply to partnerships between a province and the federal government). See also Dennis Baker, “The Provincial Power to (Not) Prosecute Criminal Code Offences” (2017) 48:2 Ottawa L Rev 417 at 438-439.

[4] Dennis Baker, “The Provincial Power to (Not) Prosecute Criminal Code Offences” (2017) 48:2 Ottawa L Rev 417 at 424.

[5] Bernard St-Laurent, “Veteran Reported Recalls Historic Morgentaler Decision,” CBC (30 May 2013), online: <https://www.cbc.ca/news/canada/montreal/veteran-reporter-recalls-historic-morgentaler-decision-1.1389901>.

[6] Matthew Ramsey, “Victoria Won’t enforce Firearms Act: A-G,” Vancouver Sun (6 June 2003) at A3.

[7] Mark Carter, "Recognizing Original (Non-Delegated) Provincial Jurisdiction to Prosecute Criminal Offences" (2006) 38:2 Ottawa L Rev 163 at 167.

[8] Rheal Seguin, Quebec First Province to Adopt Right-to-Die Legislation, Globe and Mail (5 June 2014), online: <https://www.theglobeandmail.com/news/politics/quebec-first-province-to-adopt-right-to-die-legislation/article19009781/>.

[9]  Quebec (AG) v Canada (AG), 2015 SCC 14 at paras 20-21.

[10] Reference re Securities Act, 2011 SCC 66 at para 7

[11] YMHA Jewish Community Centre of Winnipeg Inc. v. Brown, [1989] 1 SCR 1532 at 1549