The Shambolic Nature Of Government

Government, at the best of times is a chaotic creature, it's even more so when the party in power is driven not by a coherent philosophy, but rather by whatever happens to anger its base the most.  Nowhere is this more visible than in Alberta under Danielle Smith's UCP.  

The Smith-led UCP government stumbles from one issue to another with seemingly no intelligible strategy.  

One of the first things the UCP government did was slam the brakes on the deployment of renewable energy sources like wind and solar in Alberta, and subsequently issued a stack of regulations that more or less killed investment in that sector of Alberta's economy.   At a time when climate change is moving rapidly from urgent into crisis, this seems on its face one of the worst possible decisions to make - certainly not one which benefits Albertans in either the short or long term.

More recently, the UCP has become infatuated with attracting "Data Centres" (basically huge warehouses of servers designed to support "Artificial Intelligence" processing).  Now you can make this out as an effort to "diversify" Alberta's economy.  To an extent, there is a legitimacy to that argument - even if I personally think this is a poor way to go about it.  The problem I have with "Data Centres" as "engines of economic growth" is that the blunt reality is that very few actual residents of Alberta will end up with long term employment at those facilities.  Most of them run 24/7 with a small handful of technicians on hand to make repairs when a piece of hardware fails.  The actual monitoring of these facilities can be done from someone's desktop in another country ... and one person can monitor a handful of data centres at a time. 

If you will, as a business model, I'm sure data centres can be hugely profitable - they're basically leasing out compute time to companies that are running huge AI projects.  Short term, these Data Centres are profitable, but their marketability depends on how up to date their hardware is.  The problem that arises is that different generations of hardware have radically different cooling system requirements - so a data centre built for one generation may not be able to be used for whatever generation hardware comes next.  On top of all that, the hardware changes at a very high rate - so by the time the first generation hardware is amortized out, the cost of upgrading the existing building to accommodate new cooling systems may well exceed the value of the building itself - leaving Alberta with a bunch of abandoned warehouses in 5 years.

Now, what comes out this past week, but the lurching thinking of the UCP when faced with the issue of how are these data centres going to be powered.  Of course the UCP, being thoroughly in the thrall of the Oil and Gas sector, jumps to natural gas fired generation.  Do data centres need power?  Absolutely.  Should they be obliged to furnish their own power sources?  Also, yes.  

The first sign of a project not being truly viable is when "derisking" the project involves having government take over substantial aspects of what that business needs.  In this case, the UCP starts musing about forming crown corporations to ensure that natural gas is delivered to these generation facilities.  Think about that for a moment - the UCP thinking actively about forming a Crown Corporation - a party that is so far to the right that if you had suggested a Crown Corporation for any other purpose would have laughed you out of the room.  (Look at what they are doing to health care in Alberta - literally tearing it apart to sell it off to various private interests). Now, since then, Smith has said "no, I'm not going to do that" ... of course, it's Danielle Smith - you take her at her word at your own peril. 

The only thing consistent about Danielle Smith's government is her allegiance to big oil, and to Donald Trump.  Beyond that, this is a government that lurches from one crisis to another, devoid of any kind of coherent philosophy or strategy.  Smith has been described as a "political magpie" by Thomas Lukaszuk, and that seems an apt description.  She has no vision beyond the current matter that has her attention - and for Alberta, that's disastrously bad news.

Journalists Missing The Picture

I woke up this morning to CBC's Jason Markusoff and The Toronto Star's Richard Warnica talking about Alberta separatism on the Front Burner podcast.  As I listened to the discussion, I found myself getting increasingly angry at the fact that neither of the two speakers seemed to have a clue what is really going on, and were "puzzled" by the apparent lack of a full throated federalist campaign against the separatists.

There is an answer here, and it's not the one you think it is.  If you are expecting a "Federal Prime Minister vs Separatist Premier" grudge match as we've seen in past Quebec referendums, you're misunderstanding the picture on the ground in Alberta. 

Alberta, BC, and Ottawa All Walk Into A Bar ...

This is mostly going to be me processing yesterday's announcements in Alberta and BC.  I haven't quite worked out what I think of it all yet, and maybe by the end of this I will have come to some kind of conclusion ... I'm not sure.  What follows is going to be, at best, slightly ordered stream of consciousness writing.  

So, what was announced?  Well, basically, BC got a whole bunch of Federal funding for some major infrastructure projects with a guarantee that the Tanker Ban would remain in place; and Alberta got a commitment to build what amounts to a third line along the TransMountain pipeline route.  

But that's far from the whole story here.

Anti-Transgender Laws Are "Jim Crow" Laws

This is part of a series of posts sketching out legal paths for challenging anti-transgender laws in Canada.

1. Anti-Transgender Laws Are Jim Crow Laws
2. Charter Challenges of an Anti-Transgender Law

Laws do not exist in a vacuum - the cleverest of legal arguments are often decoupled from the human experience and day to day lives of people.  Therefore, laws must be understood in the context of the society in which they exist, as well as the legal frameworks in place. 

"Jim Crow" laws were laws passed in various states to create a segregation between white people and people of colour in the United States.  These were the laws that forced black people to sit at the back of the public transit bus, or required them to use specific bathrooms (sound familiar?) or drinking fountains.  They also enabled businesses to refuse service to people based on such characteristics. 

I would hope, that in today's world, such laws are seen as the injustices they are - laws designed to target people based on characteristics - humiliating, segregating, and ultimately criminalizing their existence.  In today's Canada, S15 of The Charter specifically prohibits that kind of legislation.  

Anti-transgender laws are, in this writer's opinion, very much the "new Jim Crow" laws.  Largely they are based on ginned up fears of the "dangers" that the targeted group represents for society.  I'm going to walk through why these laws should be invalidated in Canada, and I will do so by deriving a possible test that could be used to objectively identify a "Jim Crow" law, regardless of whom is targeted. 

The Smith Referenda In October

Albertans face a daunting prospect on October 19 - not one, but 10 referendum questions that they will vote on.  On the agenda are a passel of manufactured issues ranging from "control over immigration" to "appointing judges", all topped off with a whipped turd froth of a separation question. 

There are good reasons to be skeptical of all of these referendum questions.  Not the least of which is the complexity of them.  Each one is lengthy reading on its own, and is crafted to confuse the average person reading them.  My intuitive reaction is to suggest that on the basis of the wording being less than clear, that it is utterly appropriate to vote 'No' on the first 9 questions and "A" on the separation question.   That is basically voting for status quo. 

The Clarity Act and Alberta's Tricksy Question

This October, Albertans will vote on a referendum question that arguably rivals the word salad that René Levesque imposed on Quebeckers in 1980 for obfuscation and confusing wording: 

“Should Alberta remain a province of Canada or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?”

I have seen a number of people argue that because Alberta's question does not directly entertain separation, that the Clarity Act does not apply.  I beg to differ.  I think that not only does the Clarity Act apply, but that there is a compelling set of arguments the can be made that would require principles similar to The Clarity Act to apply to all referendums in Canada.

An Exhausting Week In Alberta Politics

This week has been a whirlwind in politics, especially in Alberta. On Thursday, the Premier of Alberta announced what I can only call a farce of a referendum on separating Alberta from Canada.  Then the next day, Premier Smith started talking about rewriting S35 of The Constitution.  

The referendum question Smith proposes is annoying in its obfuscating language, and I think Albertans should be incredibly angry about it.  The question reads: 

“Should Alberta remain a province of Canada or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?”

Reasonably intelligent readers should have already noticed this isn't a "yes/no" kind of question, it's actually two conflicting questions slammed together.  Rumour has it this will be a "select option A or option B" thing on the ballot, but that is still misleading and disingenuous because the second option actively contemplates separation, while simultaneously trying very hard not to look like it does.

No, The SCC Won't Rule Along The Lines Alberta Wants

 I've seen a few people arguing that the Supreme Court of Canada (SCC) is obliged to rule in favour of the Provinces like Alberta (the ones that want to use the Notwithstanding Clause (NWC, S33) any old way they wish).  The argument generally relies on the idea that the NWC is very broadly written and there are no explicit limits to its application in the text.  

Both of those claims are true.  I don't think any reasonable lawyer or judge would argue otherwise.  That analysis is also a very narrow analysis and ignores the rest of The Charter, as well as the role of The Constitution as a whole in Canadian law and government.  

Alberta argues that the NWC does not require any "substantive requirements" and that the courts have no role once it is invoked.  The Alberta argument depends heavily on the case Ford v. Quebec (Attorney General) 1988 (Ford).  However, the Ford case talks about the invocation of S33, and does not interrogate the questions that are before the court in Montreal English School Board et al v. Quebec Attorney General.  The questions before the court now are much bigger in scope, and the impact of those questions is much greater. 

Alberta relies heavily on the notion of "Legislative Sovereignty".  As I argued back here, this concept is an unwritten convention in Canadian law, and while important, not one that is laid out in any meaningful way in The Constitution.  While the legislatures are sovereign in that they are the only body which may enact laws, that doesn't extend to being able to arbitrarily rewrite laws further up the hierarchy of Canadian law.  The Constitution has amending formulas specifically for that purpose.  

Alberta's argument extends the conventions in Ford for using the NWC to argue that not only is there no cause for the courts to examine an invocation of the NWC, but in fact the court has no power to examine a law that is protected by the invocation of S33.  While Ford does set out a set of legal requirements for the "proper legal invocation of the NWC", the case itself did not raise the questions that are now before the court in Montreal English School Board et al - those questions are much more about not merely the invocation of the NWC, but they go more fundamentally to the intended role of the NWC, and the fundamental purpose of The Charter and Constitution, as well as the role of the courts and legislatures in our system of government. 

Alberta in particular seems to argue that "Legislative Sovereignty" is so broad that it actually extends well into the domain of arbitrarily ignoring The Constitution if it so chooses.  The Alberta argument demands that the SCC reject what it calls "Creative Arguments" regarding the NWC.  Unfortunately for Alberta, this requires demanding the SCC ignore contextual and purposeful readings of The Constitution, as well as decades of important precedent cases that guide the manner in which the courts interpret The Constitution, and in particular The Charter.

Questions Before The Court

I have examined this case in depth, and I continue to do so.  Unlike in Ford, the SCC is now having to weigh multiple questions that are arguably much more important: 

1.  What is the context of The Charter as a whole?

Before you say "nah, that's not an issue", consider the arguments put forward by The Attorney General of Canada which argues that the NWC is limited by its context within The Constitution.  Since the Constitution has an amending formula, that the NWC should not be used to arbitrarily amend The Charter through legislation.  This is a huge issue, and the court has never been asked to examine The Charter (and the NWC in particular) in such a manner before.

13.  The text of s. 33 must then be interpreted in light of its context and the scheme of the Charter and the Constitution as a whole. This interpretation, it is submitted, brings to light the constitutional limits on the use of s. 33.

2.  Does the context of The Charter place "natural" limits on the application of the NWC?

Again, the courts haven't really been asked to engage with this question previously.  Legislators have not used the powers in the NWC in the manner that Quebec, Alberta, and Saskatchewan have in the last few years.  All three provinces have used the NWC in a manner which narrows rights in some political social engineering - in Quebec, it's to quash religious symbols; in Alberta and Saskatchewan, it's to quash the existence of transgender people. 

3. In the Canadian hierarchy of law does the NWC allow provinces to place their laws outside the framework of the Constitution?

This is a much more insidious question to consider.  If we accept the Alberta position that the NWC is an all purpose "sledgehammer", then legislation like Alberta's so-called "Sovereignty Act" suddenly moves from being ultra vires to being normal and understandable.  More concerning is that it effectively undermines The Constitution and Charter as defining the legal framework of the country.  

This question itself isn't directly before the courts, but it is a matter which arises from whatever ruling the court does come up with.  However, the way that Alberta and Quebec are utilizing the NWC places laws written in those provinces outside the framework of Canadian law - a reality which could result a much more dangerous context for Canada where the provinces redefine themselves as highly fractured fiefdoms all with dramatically different approaches to law and rights in Canada.

Consider the prospect of a province writing its own "Charter of Rights and Freedoms" which is much narrower and more hierarchical than The Charter, and simply invoking the NWC to insulate their "unique" Charter from scrutiny.  Alberta has already demonstrated that it takes a very different view of rights and law (or at least the current UCP government does), and would quite happily use the NWC to legislate away the rights of many, or make rights conditional on compliance with some religious standard (depending on who has what beliefs). 

4. Does the use of the word "Guarantee" throughout The Charter have any practical weight?

Central to the wording of The Charter is the word guarantee, and it is used a dozen times throughout The Charter.  I've argued previously that this is a very important aspect of the discussion around the NWC.  The repeated use of the word Guarantee provides key insights into the intent of the authors of The Charter.  As the intervener Egale Canada argues, the principle of Minority Protection suggests strongly that in fact there can be limits on the application of the NWC: 

Just as, outside the public law context, discretionary powers may not lawfully be exercised for an improper or extraneous purpose, so too may the extraordinary power of the notwithstanding clause not be used to protect the operation of a law the very purpose of which is incompatible with the principle of minority protection — and thus with the core commitments of a liberal, democratic society.

If, as Alberta seems to desire, the NWC operates without limits, then effectively the courts will have discarded not only the principle of Minority Protection, but more seriously it will have rendered the meaning of the word guarantee moot within the Canadian Constitution.  I cannot emphasize enough how this reaches beyond The Charter and into the broader world of Canadian constitutional law by effectively changing the meaning and importance of a word. 

5.  To what extent do provinces have the power to further constrain the rights enjoyed by their citizens, and for what reasons?

I don't see this as an explicit aspect of this case, it is an implicit one.  The provinces are arguing that the NWC grants them sweeping powers in this regard, and in doing so they appear to be engaging in a serious power grab.  If the NWC is allowed to function without boundaries on it, then we find ourselves in a situation where both The Charter and the courts are rendered moot.

It's this last point that makes me think the courts are unlikely to simply lob the ball to the politicians.  Why would the courts choose not only to negate The Charter, but also to make themselves irrelevant in the interpretation of The Charter, and potentially The Constitution itself?  Doing so would fundamentally change the role of the courts in our system of government - rendering the courts completely unable to make any kind of ruling on legislative violations of The Constitution, and opening all Canadians up to laws which violate their fundamental rights simply because some politician decides they want to. 

How Do I Think The Court Will Rule?

This one is complicated, because there's the answer I'd like to see, and then there's the probability that the SCC will rule somewhat away from that ideal. 

The ruling I'd like to see is for the SCC to adopt the arguments made by the Federal Attorney General fully.  That would restrain provinces from many of the more abusive applications of the NWC that we have seen, if not render the NWC functionally moot. 

Of course, I expect the SCC to be quite circumspect in its analysis, threading something of a line between the provincial notions of "legislative sovereignty" and creating a formula surrounding the NWC that is almost impossible to navigate.  

Across the submissions to the SCC in this matter, the absolute floor ruling will be that even when the NWC has been invoked, that the courts will have the power to examine and make a declaratory ruling on the legislation itself.  While provinces might argue that such cases are moot, I do not see the court taking the position that no law protected by the NWC can be inspected as that would make the courts irrelevant in the processes around rights law in Canada. 

I further anticipate that the court will find that a renewal of an invocation of the NWC is really starting the process of an amendment, and therefore a renewal itself could in fact be subject to direct challenge in the courts on those grounds.  This still creates significant problems for people who find themselves under attack by government laws that infringe upon their rights for at least 5 years.  

As poetic as it is, the Federal argument around long lasting harm caused by the invocation of the NWC may not garner the attention from the SCC that perhaps it actually deserves:

3. ... Accordingly, any right or freedom referred to in an express declaration made under s. 33 must retain its integrity so that it can be fully exercised when the declaration expires—just as a lightbulb should shine as brightly as it did before being temporarily turned off.

5. The constitutional limits of the s. 33 power preclude it from being used to distort or annihilate the rights and freedoms guaranteed by the Charter, or to reduce them to des peaux de chagrin, that is, to shrivel them beyond recognition, if not transform them into mere legal fictions. Courts have the responsibility to ensure that these limits – which were neither considered nor rejected by this Court in Ford – are respected.

As much as I personally think this is a brilliant piece of legal reasoning, it could rely a little too heavily on the arguments around the application of the NWC being an instrument for temporary situations.  I think that the SCC may well sidestep the issue somewhat, and push it back to the politicians to sort out.  Given the current provincial legislative picture, this would not be a good thing. 

The flip side is that the Attorney General of Canada does tie this argument back to the 1998 reference ruling on Quebec Secession, which specifically addresses matters of both rule of law, and protection of minorities.  The SCC may choose to recognize that link to the Quebec Secession reference as significant and be unwilling to discard one of the court's seminal rulings in Canadian constitutional law.  

A final possibility in how the SCC might rule is basically to declare the NWC to be too ambiguous in its role relative to the rest of the Constitution that there is no apparent valid test that the court can come up with that would reasonably guide its application, and therefore it is inoperative until such times as Canada's political leadership is able to agree upon a framework in which it could operate.  

A ruling of this nature would basically be throwing the entire thing back into the hands of politicians, and potentially is even more destructive to Canada's constitutional system than a highly restrictive ruling such as what the Attorney General of Canada is seeking.  If you will, consider the uproar over aspects of both the Meech Lake and Charlottetown accords, and then apply it to today's context where a sizeable number of premiers seem disinclined to actually engage in any kind of good faith negotiation.

How Will The Provinces React?

While I have no doubt that most provinces will be less than happy with any constraints on the NWC, it will be Alberta that makes the most noise about it.  Danielle Smith has already signalled her likely reaction and avenues of response.  

First, she will attack the courts, complaining that "unelected judges" are "making law".  This is a reprise of the "activist judge" meme that gets dragged out every time conservatives don't like a court ruling.  It's not new, nor is it particularly noteworthy.  She will no doubt extend this to claim that the judges are "frustrating the will of the majority" - in spite of the fact that the legislation she has used the NWC to protect is a "concern" only to a small group of people, with most of the public unaware of the topic, much less having any real opinion on it.  

Smith has already begun attacking the judiciary and the courts.  Demanding more political control over judicial appointments, and complaining loudly about not being able to "direct the courts".  As a citizen of Canada, the idea of a politician "directing the courts" is horrifying to me.  The potential for gross miscarriages of justice is enormous when a politician decides that a particular case should be used to their advantage in getting re-elected. 

On the matter of "an elected judiciary", I am firmly opposed to the concept.  The idea of a judge interpreting/applying the law whilst simultaneously having to concern themselves with how "the public" might perceive what they do is simply putting the judge in a position of a direct conflict of interest between their job and their desire to keep that job.  As I have learned in my own relatively casual study of law and in particular constitutional law in Canada, it is a job far more akin to that of a surgeon than it is that of an elected politician.  Surgeons often do things which "the average person on the street" would see as unpalatable, but they do it because it's necessary in the moment for the patient.  Likewise, judges have to read and apply law in a manner that much of the public will not fully understand.  I don't "vote" on who becomes a surgeon, nor do I think it wise to vote on who gets to be a judge. 

I would not be surprised to see Smith pull out her much vaunted "Alberta Sovereignty Act" and declare that Alberta will simply disregard The Charter because it infringes on her "legislative sovereignty".  I have long argued that this legislation is ultra vires - the province of Alberta does not possess the power to simply declare itself exempt from a federal law that it doesn't like.  There is nothing in our Constitution which permits that kind of "I turn my back on you" action.  The province always has the right and resources to challenge a Federal law that infringes on its powers in the courts. That is the correct path for these issues.  

Smith has already begun lobbying other Premiers to garner support to push for revisions to the current judicial appointments processes.  This will create pressure on the Federal Government to open a Constitutional Amendment process, which is no doubt where provinces like Alberta would demand expanding the scope of the NWC, as well as seizing further powers for themselves in an effort to make any kind of federal oversight of the provinces even more difficult. 

Addendum

I would like to draw your attention to the above quote from paragraph 40(iii) of the Attorney General of Canada's submission.  It raises several very extreme, but important hypotheticals that the Attorney General of Canada wishes the court to consider in its deliberations over the NWC.  These might seem extreme today, but they are important analogues to very real situations emerging today.  

Let's consider the prospect of a province tabling a US-style "bathroom bill" excluding trans women from using female gendered washrooms and locker room facilities.  These types of bills are very much "Jim Crow Laws" - designed to separate, segregate, and humiliate their targets.  They are not just laws in any real sense of the word "just".  These are laws with a particular social engineering goal in mind, and it is a goal that attacks a group on the basis of assumed characteristics rather than demonstrable characteristics. 

The SCC has a very real issue to consider here.  If they rule that the NWC is an unbounded tool, the question becomes "what is there to stay the hand of a government that chooses to pass any law it wishes, no matter how much damage it does to the notion of Canada as a Free and Democratic Society?". 

In particular, given Alberta's recent heavy handed applications of the NWC, the SCC should be considering this type of hypothetical scenario very carefully - because it's really not that hypothetical. 

Novel Arguments For Challenging Anti-Transgender Laws In Canada

Since Alberta has decided to make itself the beachhead in bringing an "American-Style" attack on transgender people through legislation that is largely unconstitutional in Canada unless the province invokes The Notwithstanding Clause (S33), I thought I would address some potential arguments that could be used where the Notwithstanding Clause remains an "escape hatch".  

For the most part, the key parts of The Charter which anti-transgender laws violate would be S2, S7, and S15.  These all fall under the scope of S33.  For the purposes of this discussion, I am going to assume that the Supreme Court of Canada (SCC) has not expressed an opinion which substantively limits the ability of provinces to use S33.  

Argument 1:  Section 1 Extends Broadly To Encompass S33

S1 of The Charter enjoins the invocation of S33 is an extension reading of The Charter.  S1 is the so-called "reasonable limits" clause that allows the legislature to pass laws which infringe upon the rights guaranteed in the rest of The Charter, "within reason".  

What Exactly Does The Alberta UCP Mean By "Neutrality" In Schools?

 When the Alberta government tabled Bill 25 last week, they made much ado about "bias" in the classroom - complaining that teachers were "telling students what to think", and engaging in "ideology".  Anytime a politician starts yammering on about "those guys are engaging in ideology", you should be suspicious.  When it's a UCP politician, we should absolutely suspect that this is far more insidious.   

Smith Attempting To Rule By Decree

Under Danielle Smith, Alberta is rapidly being transformed into a place where there are no guardrails on the exercise of power.  In this sitting of the legislature, the government has introduced a pile of legislation that in one way or another is a massive attack on everything from basic rights to division of powers in the Constitution. 

Consider the following: 

Bill 18 - "Safeguards for Last Resort Termination of Life Act"

Imposes arbitrary limitations on MAiD by abusing the Health Professions act to impose hard restrictions on practitioners, creating ethical double-binds and imposing "mandatory sanctions" which effectively turn regulators into policing bodies. 

Bill 23 - "Justice Statutes Amendment Act, 2026"

Not only does this once again rewrite the rules for citizen initiatives (what is this - the third go-around for the UCP?), and allows the government to simply sit on, or ignore petitions it doesn't like.  

The bill also includes prohibitions on AI-generated "deepfakes" that go after politicians (fair enough - to a point), but it is so broad that it gives the government the power to go after people for parody and other long held "acceptable use" expression.  This will have a chilling effect on free speech, particularly during elections.

Bill 24 - "An Act to Remove Politics and Ideology from Classrooms and Amend the Education Act, 2026"

Again, this is another censorship bill.  Now the government is going to dictate to teachers what topics they can talk about.  If the government decides that a topic is "too political" (whatever that means), they can order teachers not to talk about it.  We all know what this really is - it's an import of the US "Don't Say Gay" legislation - although it's been broadly written so the UCP can simply write new regulations for anything they decide they don't like.  

Expect it to be used to attack 2SLGBTQ topics first (gotta keep the SoCons happy), followed by abortion, feminism, trade unions, and other subjects that conservatives have come to hate.

Bill 25 - "Immigration Oversight Act"

This is part of the government's attack on immigration.  In this case, it creates impediments to workers moving from other provinces by indirectly imposing controls on the hiring of foreign workers by Alberta companies.

The law is clearly designed to undermine the Federal legislation around immigrant workers, and tries to impose some bizarre "Alberta Standard".  

Over and above that, we have a Premier who seems all too willing to limit the rights of those she "disagrees" with, and willing to move the goalposts for those she favours (e.g. Alberta Separatists).  This isn't an accident. It's intentional, and it's meant to tie things up in the courts for years to come.  

Every piece of legislation I've enumerated here can be challenged on constitutional grounds ranging from unreasonable infringements on rights to breaches of the powers of the province.  The goal is to drive wedges into the bedrock of Canadian law by directly challenging The Constitution and demanding that it be changed to suit her desires.  

If you don't think you've seen this before, I invite you to consider the approach that the GOP has taken for _AT LEAST_ the least 26 years in the United States.  Obstruct everything your political rivals propose, and when you do gain power, do everything you can to polarize things further.  I could make longer ranging arguments here, but I think if you start with GWB's presidency and the approach taken to everything by the GOP then, and roll forward through the GOP's approach to both Obama and Biden, I think the pattern is clear enough.  Smith is engaging in very similar strategies here.

Smith's approach is basically daring the Federal Government to challenge her directly, which she will immediately weaponize by claiming the mean old Feds are trying to strangle Alberta.  It's a lie, and she knows it - but she has the backing of enough of Alberta's idiot class to make it a viable political strategy. 

 

 

 

 

 

 

 

Now She Wants To Amend The Constitution

 So, having had her public temper tantrum over appointing judges, Smith now wants to amend the Constitution so that the decision about who gets to sit as a judge is made by her alone. 

To be abundantly clear - painfully so - this is a power grab.  Worse, given Smith's track record, this would ultimately turn out to be nothing less than the politicization of the judiciary.  

She claims that Alberta doesn't have a say in appointing judges to the senior courts in Alberta.  This is false - Alberta very much has a seat at the table, but the political seat at the table is not the controlling seat, and that's what Smith is actually upset about.  

Unjust Laws and Restricting Rights Unnecessarily

Alberta has already begun restricting transgender rights, and in the wake of the shooting in Tumbler Ridge this week,  I fully expect that the UCP government will move to further restrict transgender rights in Alberta - there's already plenty of noise on various conservative discussion forums demanding "action", and if there's one thing that Danielle Smith is good at, it is doing her party's bidding when it is at its most loathsome.  

I have spent considerable time analyzing those laws, and at best they are ill-thought out reactionary responses to imagined problems rather than actual issues.  However, in a country where politicians can legitimately override rights by invoking the Notwithstanding clause, what can we the public do to undo the damage done by a reactionary government?  

Implications For Alberta Separatists From Trump's Invasion of Venezuela

 Yesterday, the US attacked Venezuela and captured its president and his wife.  This move has significant implications not only for Venezuela and its people, but it also stands to have significant consequences for Alberta and its oil industry.

To put it mildly, this has major implications for Alberta separatists, and in particular those who are in a great big hurry to make Alberta "the 51st State".  Let's talk about that.

We Are In A Constitutional Crisis

We Are In A Constitutional Crisis

Lots of people are arguing that if the Supreme Court of Canada (SCC) rules to restrict the Notwithstanding Clause (S33) or the Governor General dusts of the disallowance powers, that it wil trigger a constitutional crisis in Canada.  They are mistaken.

The minute Alberta and Quebec decided to legislate to unreasonably restrict or eliminate rights guaranteed under the Charter, they thrust a constitutional crisis upon all of us.

Quebec, with its "Bill 21" has imposed an unreasonable limitation on religious freedoms for those who work in the civil service of that province.  Quebec’s CAQ government has wrapped a thinly veiled attack on non-Christian faiths in a blanket ban on religious symbols and public prayer.  I don't care how much you want a "secular society", this is going way beyond anything that is defensible under S1 of The Charter. 

In comparison to Quebec, Alberta has been much more aggressive, using S33 to strip workers of rights to collective bargaining, labour action, etc. and to attack transgender people in Alberta.  Further, several of the UCP's more recent actions involve "invoking" Smith's so-called "sovereignty act" - a piece of legislation where the government claims it can simply ignore laws from Ottawa that it doesn't like.  Arguably, that law is on its face unconstitutional - it's little more than a power grab on Alberta's part. 

Make no mistake about it, we are in a constitutional crisis right now.  The minute that two provinces decided that they could redefine what rights citizens in their provinces could enjoy for purely ideological reasons, we were thrust into a crisis. 

Quebec's use of S33 with Bill 21 does not stand up to scrutiny - especially not when it came out in the wake of a failed bid to ban hijabs and other "traditional" headwear.  Bill 21, although it doesn't say it, attacks those whose religiosity is publicly visible - to what end?  What crisis is this addressing that makes the invocation of S33 justified?  As far as I can tell, there is none.  

Similarly, Alberta's use of S33 are indefensible.  The teacher's strike issue might contain a shred of justification in that it is important to resolve the strike quickly.  However, it fails on a subsequent test of whether the government had used (and failed) all of its statutory options - however the government left any number of instruments on the table, up to and including binding arbitration, and went straight to the nuclear option.  

The Alberta government's anti-trans legislation is based on a horrendous amount of disinformation, lies, and hysteria.  It does not stand up to any kind of scrutiny - the evidence it is based on is largely the same pseudo-science evidence that gave us The Cass Review in the UK.  I cannot imagine any aspect of Bills 26, 27 and 29 standing scrutiny under S1 of The Charter.  Smith went to the Notwithstanding option when it was becoming clear that those laws would collapse in the courts under Charter review.

How exactly does Alberta and Quebec end up in what seems like a most unlikely alliance?  Well - truthfully, I don't know the exact answer to that, but we do have some clues.  Really, it stems back to Kenney courting Alberta's extremist fringes, and then musing out loud about "the flames of separatism".  Kenney would go on to provide political support to the "Yellow Vest Convoy" and the subsequent "Freedom Convoy" protests.  Kenney definitely set the UCP on course to align with a separatist/isolationist government in Quebec. 

It should not come as any surprise that a separatist leaning government in Alberta would pivot towards asking Quebec for advice.  It's an old saw in Alberta politics that Quebec receives unmerited "special treatment".   So, an Alberta government desiring to "have more influence" might well look to Quebec for ideas and political strategy.  

Make no mistake about it, Danielle Smith has played a central role in pushing things to where they are.  It is a crisis, and it is a constitutional crisis.  Just because you aren't directly affected by the rights that have been revoked by the UCP in the last 2.5 months, the fact is that the UCP has declared that they see themselves as the final arbiters of what rights you are allowed in Alberta.  If this is allowed to stand, the use of the language "guarantees" in The Charter becomes meaningless, and that would be the most significant change to human rights in Canada since 1982. 

Consider the implications of major cases before the SCC now:

S33 has been used to limit rights without any kind of urgent situation in play.  Sure, Smith and the UCP will argue that there is "urgency" around Bill 26 because "there might be harm to children", and Legault's government no doubt argues that there is "urgency" in fostering a "secular society" that is free from religious symbolism.  Neither party has shown that they are responding to an actual emergency situation.  The governments in both cases could have taken far less drastic steps than they have to develop a basis upon which to act.  

Having taken the actions that they have, Alberta and Quebec have essentially taken the position that "provincial legislatures get to decide your rights".  Think about that carefully for a few moments.  This means that the entire civil rights regime in Canada for the last 40+ years has just been upended and is now very much in limbo.  Your fundamental rights under The Charter at this point are no longer guaranteed as a Canadian.

I want to be very clear about how dangerous that really is.  The approach being taken by the provinces is essentially "we can legislate however we like, and you have to just suck it up".  This is extremely dangerous for minority rights in Canada - especially gender and sexual minorities who are already subject to significant discrimination and marginalization.  Looking at Quebec's actions, even religious freedoms are subject to arbitrary limitations made by governments who decide that they don't like one religion's practices.  

Pick any other right you can think of, including matters of justice.  A province could decide that it is going to legislate that "anyone accused of a certain class of crime must be held in custody", and presto, there goes your right to bail.  Again, even though that is technically criminal law, the province could still invoke S33 to enforce it.  Similarly, a province could decide that a people with particular characteristics need to be held in custody "for their own good" (see Alberta's approach to addictions), and invoke S33 to prevent challenges based on "security of the person" and other individual freedoms.  

This is very much a crisis.  It might not affect your rights today, after all trans people are only a fraction of a percent of the overall population, and likewise, members of the Quebec civil service are also a relatively small fraction of the population of the province.  You probably know people who are affected by these changes directly, but because they don't affect you directly, it may seem a little abstract.  I encourage you to look through history where governments have chosen to strip people of rights for political reasons, and consider the idea that a government willing to strip one group of rights is more than willing to strip you of yours. 

If allowed to stand unchallenged, Danielle Smith and François Legault may well have ended the ordered constitution of Canada. 

Governments Seizing Powers They Have No Right To

In Alberta recently the UCP government has written a number of laws which undermine the role of the courts as a check on power.  There are several strategies that are being deployed, and all of them ultimately attempt to make it impossible for citizens who are affected by these laws to access any kind of remediation for the harms done by the law. 

There are several strategies in play that we need to talk about.  Some of them I have already talked about in considerable depth here, the others I have not addressed yet, and this post will serve as a jumping off point for thinking about these things.   

The strategies that are being used are: 

1. The Notwithstanding Clause
2. Final Decision Rests With The Minister
3. Self-Indemnification Clauses 

May I Introduce The Phrase "Ultra Vires"?

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.

The UCP Is Not A Reasonable Party

 So, Danielle Smith was booed at the UCP annual convention last night.  Why?  Because she signed a deal with Ottawa.  Nobody should be surprised by this - least of all Danielle Smith.  

I'm not going to analyze the "MOU" that was signed in this post - that's a topic for another post when I have some time to digest the implications of that deal.  This is about the UCP and the fundamental nature of the party.  

Formation of the UCP

The UCP is not a "reasonable party", and it was never intended to be. The UCP arose not from the PCs, but from most radicalized wings of the Wildrose Party - the ones who remained after the disastrous floor crossing that Smith and Prentice engineered in 2015.  That was always the foundation group.  Then Kenney spent much of 2016-17 cobbling together an "alliance" of PCs upset that they lost the 2015 election, and a collection of increasingly radicalized groups including known neo-nazi groups, separatists, and the usual assortment of religious extremist groups and so on.  

Now, while I don't count Kenney among the separatist and neo-nazi types, his own background is hardly one of moderation.  He learned to stow his worst instincts in the mill of Ottawa politics, where moderation is an absolute because you won't get very far if you piss off various major factions.  Kenney himself comes straight out of the Prairie Reform movement, and his entry into politics had a lot to do with a stint as an anti-abortion activist in a US college.  He is rumoured to be connected to the hardline Catholic group Opus Dei.  His opposition to gay marriage was vocal and persistent, even after the fight was long lost. 

Naively, Kenney believed that he could do the same thing his buddy Harper had done federally - hold them together with a combination of identity politics and an iron fist.   That fell apart when the COVID pandemic hit, and suddenly the necessities of governing required Kenney to act pragmatically, rather than ideologically.  

Instead of acting decisively on the pandemic, Kenney waffled about attempting to both assuage the fears of everyday Albertans who were looking at what was happening in China, Italy, and other countries with horror, and simultaneously trying to keep a base of party members who had swallowed the paranoid conspiracy theories around COVID.  

Make no mistake, Kenney gave oxygen to conspiracy theorists and other radicalized types by providing direct support to the "Yellow Vest Convoy" (remember that?), and then tacit (and back channel) support to the "protestors" who occupied the Coutts border crossing as part of the larger "Convoy Protest" in Ottawa.

Kenney's Downfall

What Kenney no doubt tried to frame as "pragmatic governance" didn't mollify the radicalized types in his party like David Parker, who set about engineering Kenney's ouster in late 2022, paving the way for Danielle Smith to take over with the backing of Take Back Alberta and others. 

As he was exiting his role as party leader, Kenney darkly quipped about "the lunatics are taking over".  He was correct, but in doing so was ignoring his own role in their power in the party.  Whether he admits it or not, he gave the extremists a political home, and then fed them. 

Remember his threats about "Alberta Separatism" in 2019?  2019 Jason Kenney saw these people as tools he could control and manipulate the way that Harper did.  He misunderstood the dangers that giving extremists a voice carries in politics.  Extremists - and yes, I include Manning-era Reform backers in this group - don't want to listen, and they resent any effort to reason with them.  They're convinced they know the answers already.  

Kenney the political organizer met his match in David Parker - also a political organizer.  Kenney's miscalculation cost him his opportunity to step back into Federal politics with a reputation in CPC circles as an organizer who knows what he's doing, and with "cred" having been a "successful premier".  Kenney didn't fight back publicly against Parker's paranoid conspiracy theory laden activism.  Instead he tried to play things through the back channels of the party - a party which he constructed, but also that had the very internal weaknesses that had plagued Kenney's efforts in Ottawa.  

He acquired the nickname "Bumbles" in conservative Ottawa circles for the inevitable fumbles and overplays that seemed to follow him.  That same blindness to optics, and a belief that he could lie his way out of anything, ultimately came at a very high price for Kenney as Parker organized a backroom ouster right under Kenney's nose by leveraging paranoid conspiracy theories left and right. 

Kenney's UCP was fundamentally a vehicle for Kenney to ride back into federal politics, and hopefully the Prime Minister's offices.  From that perspective, the UCP was little more than a cynical creation of a man driven not by ideology, but by power.  Kenney was an opportunist, but he was also bounded by his experiences in Ottawa.  He wasn't a good premier per se, but he wasn't the authoritarian we see in Smith.

The Rise of Smith's UCP

In the wake of Kenney's ouster at the 2022 AGM, who should emerge as a replacement for Kenney but none other than Danielle Smith.  Smith's political history is one of making a bigger mess every time she surfaces.  Her first foray into elected politics was as a Trustee for the Calgary Board of Education (CBE).  That was cut short when the province stepped in and dissolved the board because of the levels of dysfunction and conflict that Smith herself played a central role in creating. 

Smith would disappear from elected politics for a while, surviving as a columnist for the Calgary Herald - writing such illuminating works as arguing that there might actually be benefits to smoking, among other gems of wisdom.  She would return to elected politics by becoming the leader of the Wildrose Party in 2010 - only to snatch defeat from the jaws of victory in the 2012 election.  This was followed by a disastrous floor crossing exercise in 2014, which torpedoed her support. 

Again, Smith left elected politics, this time becoming a lobbyist for the energy industry, and sometime talk radio host.  

I'm sure you see the pattern by now - every time Smith gets involved in elected politics, she makes decisions which are horribly detrimental to those around her.  In this respect, "Smith's UCP" really isn't her party.  It's the party of malcontents like David Parker and TBA, with Smith as the "useful idiot" figurehead.   

Smith's UCP (or perhaps more accurately TBA's UCP) is clearly authoritarian - and not in a good way.  Smith and her government are ignoring Albertan's voices and concerns, plowing ahead with an agenda which they actively avoided campaigning on during the 2023 election cycle.  

More pointedly, the government has taken the approach that their first legislative priority is based on whatever the party slid into the "party platform" during the last AGM.  This was made abundantly clear in 2024 when Smith announced a series of legislation attacking the transgender community.  That was definitely not a matter on the election agenda, and outside of the queer community, I'm pretty sure that most people were stunned by it.  

Then, let's look at their approach to "negotiating" with teachers.  Instead of negotiating, the UCP legislated them back to work (a perfectly common approach).  However, the legislation was very telling.  Instead of committing to binding arbitration, the government simply legislated a contract that had been overwhelmingly rejected twice by teachers, and then slammed the door on any kind of "labour action" by invoking the Notwithstanding Clause (S33) in The Charter of Rights and Freedoms.  

Meanwhile, they are actively tearing apart the healthcare system, without the consent of Alberta voters.  This dismantling is again, largely driven by the manufactured outrage of TBA and its leadership in the wake of the COVID pandemic.  Policy driven by anger, or other emotions, is seldom "good policy", similarly, policy which is not carefully moderated by pragmatic consideration is also going to be bad policy.  It's not new in Alberta that there has been a faction that wants to align the province with US policy on many fronts (usually with the greatest amount of cruelty possible).  

Past governments have carefully avoided following those pressures, knowing full well that such things are contrary to the broader values of Albertans.  Not the UCP.  The UCP forges ahead in the most violent way possible - taking a wrecking ball to the infrastructure of civil society, and using moral panics like their attacks on transgender people as a distraction.  

This is not a party that actually supports individual freedom, it is now a party that supports "freedom for me, not for thee" - if they don't "approve" of your particular brand of freedom (e.g. being transgender), well - expect them to legislate it away from you and then tell you that it's their right do so.  

Smith herself may or may not be an "authoritarian", or she may simply be their "useful idiot" who is willingly standing in front of the public and doing as she is told.  It doesn't really matter - either way, she has cast her lot with people who ARE authoritarians, and have decided that instead of having a discussion with Albertans, they are going to seize power and impose their will on the rest of us. 

There is no reasoning with the UCP in its current form.  The best we can hope for is that they continue to break into factions fighting over control of the party.  Hopefully those factional squabbles will eventually tear the party apart, as it should have done once the project Kenney set the party up for collapsed on itself. 

Bill 9 and Smith's Justification For Invoking S33

 Over at the Government of Alberta website, we have the government's propaganda piece trying to justify using S33 to stomp all over the rights of transgender Albertans, their parents, and women in Alberta sport.

I will put screen captures of the whole page at the bottom ... just in case the UCP decides to disappear this link.  

As you might expect, it's largely a load of bollocks with a side order of moral panic thrown in.  Let's talk about that for a moment, because Albertans deserve far better from our government than this. 

An Open Letter To Premier Smith

Dear Premier Smith, 

It wasn't that long ago that you were standing at the podium telling us that Bills 26, 27, and 29 were so well crafted that you were certain that they would prevail in scrutiny before the courts.  Today, you stood up and told Albertans that these laws were so vital and important that you were going to invoke The Notwithstanding Clause (S33) to bring them into force.  

What changed? 

It wasn't the content of your hateful legislation - I read Bill 9 - it didn't do anything except add in the invocation of S33 to each of them.  So, your legislation didn't change, nor did the intent behind that legislation.  I don't think we need to kid ourselves about the intent either.  

Was it your rabid base of TBAers getting restive because the court cases were taking longer than their pathetic attention spans?  Or did you need another distraction from the blatant corruption and mismanagement that your government has been foisting on Alberta since you became Premier?

Frankly, I don't really care.  You just abused S33 again - proving that your oh-so-heartfelt concerns about "parliamentary sovereignty" are little more than a power grab - one where you put yourself in the position of arbiter of who gets rights in this province, who gets their freedoms stripped from them, and who is considered a valid citizen of not only Alberta, but in fact Canada.  

Fuck you, Danielle.  Do the province two favours:  retract Bill 9, and resign.  Alberta deserves so much better than a wannabe dictator who sees Canada's Constitution and The Charter of Rights and Freedoms as an obstacle to be ignored.  

- A Citizen of Canada