I'll forgive people elsewhere in Canada who might be wondering what the hell is going on in Alberta. A little over a year ago, we were treated to the spectacle of a bunch of Alberta MPs and other luminaries signing the Buffalo Declaration, and today, we get "The Free Alberta Strategy".
For all that there's some genuflection in the direction of keeping Alberta part of Canada, the reality is that this is still the same old separatist garbage that I first encountered in Junior High when the Constitution was being repatriated.
I won't waste your time with the deceitfully written complaints about how being part of Canada is such an unfair burden on Alberta. We've all seen it before, and it's the same old whining nonsense that has more to do with winding up the rubes than it does with any real and legitimate issues.
What is somewhat unique about this document is a series of legislative initiatives that they propose.
- Alberta Sovereignty Act
- Alberta Police Force Act
- Alberta Independent Banking Act
- Equalization Termination and Tax Collection Act
- Alberta Pension Plan and Unemployment Insurance
- Alberta Judicial Independence Act
- Independent International Relations and Trade
That's quite a pile of legislation, and I suspect most, if not all of it, is Ultra Vires a province's authority under the Canadian Constitution.
The authors of the document make quite a sweeping claim at the outset:
The provinces are voluntary members of the Confederation of Canada. Each province’s membership in this country is predicated upon the federal government abiding by its constitutional commitments to its members.
This is a bit misleading, as it contains a certain amount of "Americanism". It makes out that the provinces in Canada are similar to the US States. This is miles from the reality. The relationship of provinces to the greater structure of Canada is not the same as a State to the "Union" that is the United States. A bit of time spent with the BNA Act and other constitutional documents makes it quite clear that the structure is different, and the idea that provinces could simply secede from confederation is dubious at best, ill-informed at worst.
Let's take a closer look at some of the legislation, shall we?
The Alberta Sovereignty Act
To be clear, they really don't do a good job of describing exactly what would be in this act, and instead spend a bunch of verbiage dancing around trying to justify the creation of the act itself. Which is probably a strong clue to its likely status as being ultra vires.
Here's how the authors think such an act should work:
Our proposed cornerstone of the Free Alberta Strategy is the Alberta Sovereignty Act. This would provide Alberta’s Legislature with the authority to refuse enforcement of any specific Act of Parliament or federal court ruling that Alberta’s elected body deemed to be a federal intrusion into an area of provincial jurisdiction, or unfairly prejudicial to the interests of Albertans.
If the above didn't make you snort coffee all over your keyboard and screen, you're doing better than me. This is so obviously out of scope for the powers of the provinces it's not even funny. Were it to stand, it would upend the entire legal structure of Canada, rendering Provinces as having essentially a veto over Federal legislation, and arguably the Constitution itself.
It gets better when they try to explain how they think this would work:
As an example, Alberta’s elected representatives could trigger the use of this legislation to override a federal attempt to regulate or decline a new energy project in Alberta. Once the provincial permit is granted for such a project, that business would be permitted to build and operate independently of any federal regulatory or judicial interference.
Similarly, as it relates to federal laws involving the possession of firearms, carbon taxes or restrictions over health care delivery, the Alberta government would have the unilateral authority to refuse enforcement of those federal laws within the Province of Alberta.
Let me draw this out for you. This legislation would essentially render any legislative or regulatory authority that Ottawa currently possesses moot. If the legislature in Alberta deems it appropriate to ignore it, they will? Anyone with even a passing familiarity with the division of powers between the Federal and Provincial governments in Canada should see immediately the vast overreach of provincial authority that this would represent.
Alberta Police Force Act
They don't say much here other than this:
All municipal police forces (i.e., Calgary, Edmonton, Lethbridge, etc.) already operate under provincial authority. This reform would ensure the Province controls all aspects of law enforcement against the person.
There's several fundamental aspects of this that I consider problematic. First of all, there is a subtle misrepresentation of the RCMP's role. When it operates under contract to the Alberta government, it is in fact under the authority and control of the Alberta government. It should be noted that governments should not be "giving orders to" police forces per se.
The idea that, for example, the RCMP is directed by Ottawa and therefore it is an infringement on Alberta is a bit laughable to start with. The inference that the Alberta government wants to be able to "direct" policing is much more concerning. The police aren't there to execute the political will of politicians, they exist to enforce the law as written - be it federal or otherwise. We should be very cautious about anyone who makes the claim (or demand) that the Alberta government wishes to exercise direct control over the execution of policing - they do not exist to act as political brownshirts.
Alberta Independent Banking Act
This one is interesting, because the language around it is pretty much an admission that it is both ultra vires, and likely impractical:
The Government of Alberta would be unable entirely to shield Alberta businesses and individuals from the financial enforcement of federal laws, regulations, and judgments deemed unenforceable in Alberta by the Alberta Sovereignty Act should those individuals or businesses continue to entrust their financial assets to federally regulated banks.
Alberta’s Government could partially bypass this impediment by providing Albertans with more provincially regulated banking options. Alberta already owns and regulates its own banking institution30 (the ATB) and regulates credit unions.31
If there was ever a declaration of this being a house of cards, it's right here.
Then there's this:
This last point is obviously vital to the Free Alberta Strategy. If, for example,
the Alberta Sovereignty Act was triggered by the Legislature to refuse enforcement of the federal carbon tax, a business operating a gas station could set up its banking with ATB, refuse to collect or remit carbon taxes from its customers to the federal government, and would not be in danger of being shut down by police, having their property seized, or even having their bank accounts garnished by the CRA through federal banks pursuant to a court order.
Yeah ... no. Again, this entire construct relies on the "Alberta Sovereignty Act" being able successfully held as overruling just about every area of federal jurisdiction - including the courts? This doesn't even reach the level of wishful thinking.
Equalization Termination and Tax Collection Act
This starts off with a very old, very tired bunch of whining about equalization, and it's all basically disinformation that misrepresents equalization, the flow of monies through the federal government, and many other things:
Plundering Albertans’ shared wealth has been used by successive federal governments, primarily run by Liberals (largely by those named Trudeau), to purchase the cooperation of other provincial governments and to buy the votes of their populations during and after federal elections. It is a policy that has rewarded provincial governments that adopt expensive, ineffective, and quasi-socialist policies that rely on subsidies from Alberta workers and businesses.34
So, what to do about it? The current Alberta government, and in fairness most of its predecessors, have used the consistently failed tactic of asking nicely for the federal government to ease off the gas a bit and take a little less of Alberta’s productivity and wealth, so that we might invest it at home for the aforementioned purposes. The Federal response to this request has been a consistent and emphatic “No”.
Alright ... you don't like the equalization program. So what? The Federal "No" on this is because equalization is a Federal commitment enshrined in the constitution, and it is a commitment to the provinces.
Nowhere in the Constitution does it stipulate or refer to an equalization formula, nor does it grant the federal government the authority to plunder tens of billions of dollars a year through federal transfer programs from one province, to largely fund the electoral needs of the country’s second-largest province (Quebec).35... and here's the sleight-of-hand twist. The way this is written, one would think that there's a big fat cheque written by the Alberta government to Ottawa, which it then hands over to Quebec. This is completely false. Equalization monies come out of the same federal taxes you pay every year as a taxpayer, and Albertans pay those taxes at exactly the same rates as other Canadians do. In other words, if we pay more in federal taxes, it's because we earn more on average. Short of opting out of paying federal taxes altogether, I don't see how Alberta can magically "opt out" of Equalization.
The Free Alberta Strategy proposes passage of the Equalization Termination and Tax Collection Act. This piece of legislation would:
Establish the “Alberta Revenue Agency” to collect all provincial taxes;
Create the Office of the Alberta Public Sector Employer (“APSE”), which would become the official payor of all Alberta public sector employees. There would be no changes of to any collective bargaining agreements, salaries, pensions, or other benefits for these workers as negotiated by their current provincially funded public employers. The only change would be that the APSE would become the provincial agency issuing their paycheck (much like a private corporation paying its staff through an independent payroll company). The APSE would then remit these withholdings to the Alberta Revenue Agency.
Permit any private corporation banking with ATB or other provincially regulated financial institution the option of transferring all federal source deductions collected from their employees directly to the Alberta Revenue Agency, instead of the CRA.
Mandate that instead of remitting all of the federal tax withholdings collected from private companies and the APSE to the CRA, the Alberta Revenue Agency would instead transfer an amount equal to that of the equalization and federal transfers the federal Ggvernment collected from Alberta during that year to the Alberta Treasury and, any surplus remaining thereafter, to the CRA.
5. Opt Alberta out of all federal transfer and other programs that interfere and seek to influence policy in any areas of provincial jurisdiction (i.e., the Canada Health Act, Federal Heath Transfer, education transfers, national daycare program funding, etc.), and officially request the transfer of our population’s share of these federal programming dollars, either through an annual ‘no-strings-attached’ federal transfer amount (based strictly on a per-capita population basis) or, preferably, through the transfer of tax points from Albertans’ federal tax rate to Alberta’s provincial tax rate. If the federal government refuses Alberta’s request, the Alberta Treasury would, using the same method described in the previous paragraphs, increase the amount of federal tax withholdings it retains by those same amounts.
Again, this is somewhat laughable because I doubt such an act would stand up to a court challenge. In effect, they're going to try and cleave Alberta off from having the CRA collect its taxes (fair enough, that could be done - however wasteful it would be), but then wants to flip it around so that Federal taxes are remitted via some bizarroland calculation where the ATB would deduct Alberta's "equalization contribution" first? Wow. Just wow.
First off, there is nothing stopping the CRA from simply saying "cool - employers are still responsible for remitting taxes at source directly to the CRA". It's not hard to do that. Employers would quickly find themselves caught in a legal maze of remittances they would have to manage directly, and it doesn't take a rocket scientist to understand that larger employers would take one look at the added cost burden this represents and pull up stakes.
Alberta Pension and Unemployment Insurance
Properly planned and managed, opting out of the CPP in favour of an Alberta Pension Plan, and replacing EI with an Alberta Unemployment Insurance Plan, would result in a combination of higher benefits for our seniors and those facing unemployment, and lower contribution rates from the paychecks of Alberta workers, thereby benefiting Alberta families to the tune of hundreds, and even thousands, of dollars each year. These are long overdue reforms.
Wishful thinking does not make this so. Further, the authors ignore a number of key aspects of how the pension and EI programs are structured. A more detailed examination of this proposal would likely turn up that the real proposal is a bit like Jason Kenney's approach to the current COVID-19 pandemic - "let them all burn".
Alberta Judicial Independence Act
Apparently, somehow our federally appointed judges are suddenly a problem:
The inherent conflict of interest that the federal courts exhibit towards provincial autonomy, particularly as it involves Alberta, must be immediately addressed, not only by passing the Alberta Sovereignty Act, but also through enacting the Alberta Judicial Independence Act, which would mandate as follows:
The Alberta government shall appoint all future judicial appointments serving in the Province of Alberta (Provincial, Queen’s Bench and Court of Appeal);
No future federal judicial appointees will be employed by the Province of Alberta at any court level. Current judges and justices would be ‘grandfathered’ and remain fully employed on the Bench thereby ensuring continuity and recognizing their historical respect for the constitutional rights of Alberta; and
The Province would establish a Provincial Tax Court to enforce
all provincial tax collection and enforcement activities within the Province of Alberta free from any interference by federal tax courts and the CRA.
There are many parts of this that are laughable, but we'll come back to them later (probably in another post, because judicial appointments and funding of courts doesn't work the way this implies.
The authors' rationale is basically as follows:
That has generally not been the case in the courts of other provinces nor in the federal courts, where so many decisions have involved either blatant judicial activism44 or bias45 against the constitutionally enshrined jurisdictional rights of Alberta.
One only need examine the recent Alberta Court of Appeal decision46 regarding the unconstitutionality of the federal carbon tax (a tax clearly designed to allow the federal government to govern the primary industry of the Province of Alberta), and contrast that with the decision of the Court of Appeal of Ontario47 on this same issue.
Apparently it's difficult for them to understand that multiple judges looking at the same issue might come to different conclusions. It's like reading and interpreting law requires training and experience or something. In my mind, just because you don't like a ruling, doesn't make the entire system flawed. In fact, it probably means that your own reasoning has problems in it, or there are facts of the case you are not familiar with.
Independent International Relations and Trade
This one is practically comedy gold it's so slipshod. Basically, the upshot is that Alberta should take over "international relations" and "trade" from the Federal government because ... well ... apparently making commitments on matters like climate change just isn't fair to Alberta, donchaknow?.
Alberta permitting Ottawa to look after its international and interprovincial market access has been, and will continue to be, a complete fiasco. If ever there was an example of foxes guarding the proverbial hen house – this would be it.
The federal government’s priorities (particularly its active participation in the Great Reset’s climate crusades and its goal to phase out Alberta’s energy sector from existence53) places Ottawa in a direct conflict of interest with Alberta’s economic and environmental objectives, namely to grow the most economically prosperous and environmentally sophisticated and responsible energy sector on the planet.
I would call it laughable, but it's really kind of pathetic. The authors of this document think that Alberta can just magically take over international relations, ignore Canada's commitments and treaties, just so they can keep mining as much magic bitumen as they can, as fast as they can. Even if Ottawa were to agree on some specific matters that Alberta could negotiate an agreement with another country, or whatever, no country is going to recognize that agreement as being worth the paper it's written on because ... the agreement is with a province of Canada, and provinces simply do not have the requisite jurisdictional authority.
Conclusions
If you've read this far, you're far more patient than I would have been. Suffice it to say that the entire thing is a loosely constructed sham designed to wind up the people who were already primed to believe this nonsense.
... and UofC Law Professor Dr. Martin Olszynski seems to agree that it's 100% nonsense:
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