Alberta plans to invoke its "Sovereign Alberta" legislation as part of "fighting back" against federal firearms legislation that bans firearms that are commonly seen as "military-style". As the first application of the "Sovereign Alberta in a United Canada" legislation, you can expect to hear a lot about this subject in the coming months.
I'm not going to opine on the merits of the federal legislation/regulations at issue here. Gun control and rights around firearms in general are contentious at the best of times, and I think that people who are on either side of the issue already have their opinions and arguments set out.
This post is going to be about the "Sovereign Alberta" legislation and what it purports to do.
Smith tabled this legislation a couple of years ago to great fanfare among the Alberta isolationist/separatist crowd. At the time, I looked at it and thought "nope - this is way outside of any legitimate constitutional framework". In essence, it is a declaration on the part of the Alberta government that it would ignore, or selectively apply federal laws that it didn't like for some reason or another.
What does "Ultra Vires" mean? It's a latin legal phrase that simply means "beyond the powers". The "Sovereign Alberta" legislation is arguably ultra vires in the context of Canadian constitutional law. Essentially, the legislation attempts to place the province outside the hierarchy of law set out in Canada's constitutional system.
As I understand it, in order for a law to be declared ultra vires in Canada, it has to fall outside the authority of the legislative house to enact law on somehow. The primary lines of along which this would happen would be:
a). It violates the hierarchy of law established in 1983 when the Constitution formally became a Canadian document.
b). It addresses a matter outside of the authority of the legislature as set out in the division of powers section of the Constitution
Hierarchy of Law
Law is hierarchical. In Canada, the patriated Constitution sits at the top of the legal heap. All laws in Canada must operate with respect to the content of The Constitution (1983), regardless of the legislature which passes them. The purpose here is clear - it sets out a framework within which the exercise of power can be conducted in a manner which is appropriately restrained. There's a reason that the amending formulae in the Constitution are as complex as they are - modifying the Constitution should not be a simple matter of legislative fiat.
The legislation, regulations, and programs of the various levels of government follow that. The Federal government has broader powers of legislation than do the provinces, but provinces can certainly push back on federal legislation which they believe infringes upon their powers and domains of authority.
In the Canadian Constitution, the division of powers is laid out quite clearly. The Provinces have their domains, and the Federal government has its domain. There are areas of overlap, but those also are bounded by certain discretionary powers that while vague, are part of the Constitutional framework. Of course, pushback can exist in both political and legal domains (via the courts).
Just as laws set out frameworks, regulations issued by governments also carry legal weight, and usually refine the application of the law, providing details of process and procedural boundaries for those who interact with the law directly.
Then we arrive at the courts, whose role with respect to the laws is twofold. First, courts are obviously the "administrators" of the laws that come before judges - most often criminal law, and adjacent matters that are governed by legislation. In this context, the judiciary is placed in the position of weighing the facts and arguments put before them with respect to the law and relevant precedent.
The second role the courts play is in determining whether or not a given law operates within the framework and boundaries of the Constitution. This is a much more complex domain, wherein the courts must carefully evaluate the law with respect not only to the Constitution, but also with respect to whatever relevant precedents which may exist.
In this regard, the judiciary operates parallel to the legislature - a fact which annoys people like Danielle Smith who argue that "Parliamentary Sovereignty" means they can pretty much do as they wish legislatively.
Division of Powers
Sections 91 through 126 of the Constitution Act (1867) describe the division of powers. The division of powers matters a great deal in Canada's system of laws because it sets out the authorities and roles of the major levels of government.
In theory, this is supposed to be clear-cut enough as to minimize conflict. The reality is that the boundaries are often contentious, and provinces are often quite jealous of the powers they do possess. We saw this with Alberta's complaints about the 2019 legislation that cleaned up the environmental assessment processes, where the province argued that the legislation unreasonably infringed upon the province's right to manage the development of its resources. Ultimately, the Supreme Court of Canada ruled that the legislation was in fact valid.
Alberta's Sovereignty Act
The Sovereignty Act is, on its face, an attempt to place Alberta outside the regular frameworks of the Constitution and hierarchy of law. The province proposes to use it in several ways with respect to the federal firearms ban. The first is to order law enforcement officials in Alberta not to enforce the ban, the second is to bolster the Alberta rights legislation which contains specific clauses around firearms rights. A third dimension has to do with creating some version of "castle doctrine".
On their face, Alberta's claims appear to be significant deviations from the boundaries of law as set out in the Constitution's division of powers. Matters of criminal law are the exclusive domain of the Federal government. So, Alberta trying to carve out an exception for itself here seems particularly "out of bounds".
Enforcement of Laws
This is a particularly concerning moment because it appears on its face to be a political order to law enforcement to selectively enforce laws. The province sending this message to policing organizations is concerning because it shows a willingness on the part of the government to inject itself in the law enforcement process in a manner that seems questionable at best, dangerous at worst. I'm not at all clear that this specific action depends on the invocation of the Sovereignty Act itself, but it is worrisome that the government is choosing this path at this time.
Rights Legislation Support
While Alberta is free to write into its rights laws more or less whatever it sees fit to do, up to and including some form of property rights, those rights are bounded by other aspects of Canadian law, including The Charter, and a significant body of case law. Property rights aren't an explicit part of The Charter, but certainly there are significant Charter cases which address the issue.
This use of the Sovereignty Act appears to be an attempt on the part of the Alberta Government to lift its rights legislation and place it in a position parallel to The Charter, instead of functioning with respect to The Charter. If allowed to stand, it would break the supremacy of The Constitution as the highest law in Canada.
Castle Doctrine
Alberta attempting to create its own version of the American-style "Castle Doctrine" laws which permit armed force to be used when someone thinks their home is being attacked is hugely problematic. This is essentially a foray into criminal law on the part of Alberta. Regardless of how Alberta wants to frame it, this is a matter of criminal law - which is exclusively the domain of the Federal Government. Again, this would be well outside the legitimate powers of the Alberta Legislature.
Analysis
If Alberta proceeds with all aspects of their plan, I fully expect to start hearing the words "Ultra Vires" a lot as things wend their way through the courts. The Castle Doctrine proposal is arguably the most egregious, and clearly outside of the province's authority. Trying to elevate the Alberta human rights legislation to the same level as The Charter is similarly well outside the province's authority to do. I would expect both to be struck down by the Supreme Court of Canada (SCC) fairly easily.
I'm less clear on the intervention into policing, although I can imagine the courts would be overly impressed by a government deciding it can dictate which laws can be enforced within a given province.
This all appears to be a large scale power grab on Smith's part. She's going to assert all of this power, take a victory lap before it gets into the courts and struck down. Do I care? Yes, absolutely. Because the minute Smith uses the supposed powers of the Sovereignty Act once, you can bet she's going to use them almost immediately in other areas where the rabid base of lunatics that support the UCP think are "needed" ... all before the SCC hands down what might be its first ruling ever to contain the phrase 'Ultra Vires'.
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