Undermining the separation of powers

In the end, when she passed her Alberta Sovereignty in a United Canada Act last week, Premier Danielle Smith scrapped the controversial Henry VIII clause giving cabinet the power to amend provincial laws unilaterally. But legal scholars are far from certain the bill passes constitutional muster. One concern is how the legislation affects the separation of powers under Section 96 of the Constitution Act, 1867.

"Back in June when Smith hitched her leadership campaign to the Free Alberta strategy, a lot of us raised separation of powers concerns, and that the time, she seemed to be flirting with the idea of ignoring the courts," says Martin Olszynski, a law professor at the University of Calgary. "Since then, the bright minds working for her have decided that rather than ignoring them, she's going to try circumventing them. That intrudes profoundly on the constitutional protection afforded to our superior courts for ensuring and maintaining the rule of law."

The legislation purports to allow the provincial legislature the power to declare federal laws or regulations unconstitutional.

But as Olszynski notes, the decision at Confederation to have a unitary court system, where the federal cabinet appoints all superior court judges was deliberate. It was part of the compromise struck with the provinces. They would be in charge of the administration of justice, but unlike in the United States, the judges would be appointed federally.

"There is a long tradition, especially in Quebec, of being unhappy about that, but usually how this is manifested is in attempts by provinces to create quasi-judicial-like tribunals that effectively exercise the powers of judges that they can then appoint," Olszynski says. "The Supreme Court has been very clear that you can't do that because it would undermine the twin principles underlying Section 96, which are national unity and maintaining the rule of law."

Why does this matter in Alberta? Because we've never seen an instance of the provincial legislature trying to give itself those powers, Olszynski says. He calls it a clear transgression.

"It's the legislative branch reaching into the judicial branch, where the functions and characteristics of each are particularly poorly suited for this," Olszynski says. In provincial courts, there are at least some safeguards in place that come with the adjudication of disputes and that legitimize the exercise of court-like functions, he adds. "Parties have counsel, there is a decision-making process, and reasons are often going to be required," Olszynski says. "None of that exists in the legislature, which is inherently political and partisan."

Judges have training, and follow rules and precedents, which cannot happen in this circumstance. Olszynski is especially concerned with how the situation in Alberta will undermine public confidence in superior courts.

"What happens when a law is challenged in a superior court where the legislature in Alberta has already pronounced it to be unconstitutional?" Olszynski asks. "What happens when a directive under the section 4 of the Alberta Sovereignty Act comes before a superior court, which is premised on a finding of unconstitutionality that no court has never reviewed, because those resolutions are non-binding motions in the House, and they are not directly reviewable."

That will affect superior court judges or politicize their function, which in turn creates an unstable dynamic in the exercise of public confidence in the courts, where the premier can declare that those judges are federal interlopers.

"All of that is made more plain when the premier gets up and says there is no national government in Canada, and that's not how the constitution works," Olszynski says calling her reasons for adopting the Act "bogus." He disputes the notion that "the provinces are somehow hapless when they challenge federal laws as being unconstitutional." They have injunctive remedies they can seek. "It's the forum she rejects because she knows she won't get the outcomes that she wants. That's a parallel court."

The question for Olszynski is under what head of powers can Smith claim to pass her law?

"I don't know what under Section 92 authorizes this kind of law," Olszynski says. "Are these local matters? I don't think so. Federal laws are by definition not local, so I don't really see how that works. It's not property or civil rights in the province—most of the Act is inward-looking and aimed at public institutions, not private ones. It can't be the administration of justice in the province because that would concede the point that these are essentially parallel courts."

University of Ottawa law professor Carissma Mathen says she largely agrees with Olszynski's concerns, but says there is an even bigger issue.

"To me, the more fundamental challenge with this is that it's completely ultra vires the division of powers," Mathen says. "Neither order of government has the constitutional authority to protect the Charter rights of people in as much as they are affected by laws by the other order of government." The only possible exception would be if Parliament chose to respond to a provincial law with its own law that sought to protect those rights, if it was in its own authority where you could have an issue of paramountcy.

Another concern is whether Alberta's law will inspire copycat legislation in other provinces, which Olszynski says supports the case that the scheme is unconstitutional. Each province making declarations regarding the validity of federal laws could only undermine the authority of superior courts in maintaining the rule of law and their function as impartial arbiters of the constitution.

Olszynski suspects the legislation will be challenged provincially, including by First Nations, before the federal government ever gets around to referring it to the Supreme Court of Canada.

"If [Smith] uses it, it will get challenged in court and will probably be vaporized," Olszynski says. "If she doesn't, then it goes the way of the equalization referendum and other angry letter-writing campaigns to the great dissatisfaction of her base."