Alberta could ignore court rulings under Smith’s sovereignty act

United Conservative Party leadership candidate Danielle Smith says her proposed Alberta Sovereignty Act would allow the legislature to ignore court rulings that find the province in violation of Canada’s Constitution by not enforcing federal legislation. 

In a Tuesday news release, Smith outlined how the legislation would work. 

A special motion, passed via a free vote in the Alberta Legislature, would identify problematic legislation, explain the harm to Alberta and describe how the province and its agencies would not enforce the law. 

If Ottawa believed Alberta was acting unconstitutionally, it would be up to the federal government to file a constitutional challenge. 

Smith’s description of the act states that Alberta could choose to ignore the court if it ruled in favour of Ottawa. 

‘Banana republic’

Premier Jason Kenney said Tuesday that such an act would turn Alberta into a “banana republic” that would frighten international investors, such as ones he met in South Korea earlier this month. 

“The Alberta Sovereignty Act would be like kryptonite for them,” Kenney said during an unrelated news conference in Calgary. 

“They’re interested in political stability, not political chaos. They’re interested in a jurisdiction that respects the rule of law and the authority of the courts.

“Not one that thumbs its nose, banana republic-style, at those foundational principles.”

Smith’s news release stated the ideas of the Alberta Sovereignty Act are constitutional and decried the “woke” media and “so-called ‘experts'” who use “fear-mongering and disinformation” to discredit the act. 

By allowing Alberta to ignore federal laws it opposes, the act would represent concrete action against a “lawless” Ottawa that regularly hurts Alberta’s interests, Smith said.

Smith did not respond to CBC’s request for an interview. 

Governments not above the law

Legal experts said allowing a provincial legislature to ignore a court decision upsets the checks and balances set out in the Canadian democratic system, where the judiciary can provide a remedy for citizens if a government infringes on their rights or oversteps its authority.

Eric Adams, a law professor at the University of Alberta, said the idea of a provincial government declaring a law unconstitutional is not part of the Canadian system of government. 

He said it is also troubling that Smith’s act appears to give Alberta quasi-judicial powers to assess the constitutionality of another government’s law and propose a remedy, such as refusing to enforce it. 

Consider the mayhem that could result if Alberta refused to enforce a federal change to the Criminal Code that it didn’t like, he said. 

“What’s a police officer supposed to do when you’ve got one level of government saying ‘Don’t apply that law,’ the Parliament of Canada saying ‘That is the law’ and citizens throwing their hands in the air saying, ‘I’m just not sure what system of law governs what anymore,'” Adams said. 

Martin Olszynski, a law professor at the University of Calgary, is similarly alarmed that the act would allow the Alberta government to ignore the court’s authority.

Governments in Canada are not supposed to be above the law, he said.

“You can’t bypass the courts when you don’t like the outcome. That’s the difference between the rule of law and rule by individuals. And what I refer to in other instances, of course, is tyranny,” Olszynski said.

“When governments decide that they’re above the law, we’re no longer dealing with democratic government.”

Smith has said she will introduce the Alberta Sovereignty Act this fall if she wins the UCP leadership. 

The party will announce the results of the leadership vote on Oct. 6.