Danielle Smith declares war on the rule of law

When it comes to Alberta politics, always bet on chaos. That’s been the lesson of the last decade, and it’s clearly going to be the overriding theme of Danielle Smith’s tenure as premier. After winning the leadership of the United Conservative Party on the back of a promise to assert Alberta’s “sovereignty” more aggressively, many people (myself included) expected Smith to add water to her wine to win over more moderate urban voters. Instead, with the Orwellian-sounding “Alberta Sovereignty within a United Canada Act” she tabled yesterday as her government's Bill 1, she opted for some arsenic. The question now is which will die first: her government or the rule of law in Alberta.

“We need the power to reset the relationship with Ottawa,” Smith said during the press conference explaining the proposed legislation. “That’s what this is all about. We’ve tried different things in the past, and it hasn’t worked. So we’ve got to try something new.” That “something new” is actually something quite old: a so-called “Henry VIII clause” that allows cabinet to amend existing legislation without the consent or approval of the legislature. As constitutional scholar Eric Adams wrote, “the cabinet may bypass the legislative process entirely to temporarily amend — for years at a time it would seem — any other provincial law, presumably to further provide measures to resist the application of federal law.”

These sorts of powers are generally reserved for times of genuine crisis, whether that’s war with another country or a public health emergency like the one we recently faced. Indeed, back in April 2020, the Kenney government gave itself a similar set of powers in its Bill 10, the Public Health Emergency Powers Amendment Act. That provoked an almost immediate constitutional challenge from the Justice Centre for Constitutional Freedoms, a group that consistently stood against mandatory public health measures during the pandemic and which was well-represented at the recent Public Order Emergency Commission hearings.

So what’s the current crisis that apparently calls for their return? The federal government’s determination to do something about climate change and gun crime, of course. Smith suggested the Trudeau government was “actively attempting to landlock” Alberta’s resources, a statement that’s hard to square with its $21.4-billion commitment to the Trans Mountain pipeline expansion and its generous support for LNG Canada. Meanwhile, the much-repeated bogus claim that Ottawa is forcing farmers to cut their fertilizer use by 30 per cent is actually a proposed federal target for a 30 per cent reduction in fertilizer emissions by 2030 — one that will be supported by hundreds of millions of dollars in federal largesse.

When oil and gas royalties and revenues are at record highs, companies are awash in profits and Ottawa is funnelling billions of dollars in new subsidies their way, it’s going to be tough to sell anyone on the idea that this constitutes a “crisis” for Alberta, much less one that demands extraordinary new powers. But Smith seems determined to test just how far she can push the meaning of that word. As Globe and Mail columnist Andrew Coyne tweeted, “WELCOME TO THE PERMANENT EMERGENCY, ALBERTANS!”

For those who have been loudly protesting the federal government’s usage of the Emergencies Act earlier this year (like, say, the JCCF), this is a deeply awkward moment. Their ongoing attempts to depict Prime Minister Justin Trudeau as a “dictator” have fallen flat, in large part because it’s impossible to actually be a dictator in a minority Parliament. Smith’s bill, on the other hand, is more clearly dictator-adjacent — and if Trudeau was the one trying to implement it, you’d be able to hear the howls of outrage from right-wing politicians and pundits from outer space.

But this implicit bet on the hypocrisy of their own supporters is one that conservative politicians have been making, and collecting on, for a while now. They understand that the people who complain most loudly about freedom, democracy and the rule of the law can also be the ones most willing to look past the threats to them when they come from their own side of the partisan fence. During his first term in office, Doug Ford invoked the notwithstanding clause, unilaterally slashed the size of city council in Toronto and restricted the political speech of his opponents — and won an even bigger majority in last June’s election. The CAQ’s François Legault deployed similarly heavy-handed tactics in Quebec and was rewarded in kind with his own expanded majority.

It’s not just conservative voters who show this sort of situational commitment to freedom and democracy. Back in September, four of the leading UCP leadership candidates held a rare joint press conference in order to denounce Smith’s signature idea. Rajan Sawhney, one of those candidates, said: “We have a moral imperative to tell the truth about the potential of this very destructive piece of legislation.” That moral imperative has apparently disappeared, given Sawhney, Travis Toews, Rebecca Schulz and Brian Jean all now sit at Smith’s cabinet table — and all will benefit from the enormous new powers Bill 1 confers on them.

There’s been talk the federal government could use its power of disallowance to override Bill 1, or that the lieutenant-governor could refuse to give it royal assent. In reality, neither is likely and both would be catastrophic — the political and constitutional equivalent of dumping jet fuel on a dumpster fire. Instead, it’s up to Albertans to show they care more about their own democratic rights and freedoms than fighting an imaginary enemy in Ottawa by voting in next May’s election. If they don’t, they’ll only have themselves to blame for what follows.