Pandering to Pandora

Why the UCP’s four constitutional questions are threats to provincial autonomy

This post is co-authored with Don Padget, Alberta constitutional lawyer, LLM (Constitutional Law)

As part of this fall’s record-setting referendum, the Alberta government is asking residents to weigh in on four questions about reforming the constitution:

• giving provinces more control over judicial appointments,

• abolishing the Senate,

• putting brakes on federal spending in areas of provincial jurisdiction, and

• giving provinces the ability to nullify federal laws that overlap with theirs.

These four questions are getting the least attention of the ten. And for good reason. They have less of an impact on people’s everyday lives. They’re also less likely to result in any meaningful change whatsoever, as implementing them would almost certainly require the approval of other provinces and the federal government. That’s not going to happen, for reasons we explain below.

So why should Albertans care enough to vote “no” on these four questions? Because by endorsing the Smith government’s constitutional cosplay, we are agreeing to another election cycle’s worth of distraction and blame-avoidance from the real challenges facing Alberta.

At best, “yes” votes will give the premier a mandate to tour the country, drumming up elusive support for constitutional changes, rather than focusing on real policy challenges and basic needs here at home.

At worst, in the highly unlikely event Smith is successful in bringing the rest of Canada to the bargaining table, she risks opening Pandora’s box — inviting another round of divisive and potentially detrimental constitutional debates that not only waste time and energy. This could well reduce, not expand, provincial autonomy.

Quebec and other provinces will raise a suite of other constitutional changes, and the federal government may seek to lower barriers to the use of its own power.

This is not to dismiss the grievances at the core of Smith’s four referendum questions. We can address those beefs with non-constitutional reforms, however, as we’ve done in the past.

Photo by Gio Bartlett on Unsplash

Pandora’s Box

As written elsewhere, Canada’s constitution is like a series of Gordian knots — intricately and tightly-wound pacts that are difficult to untie. Attempting to loosen one thread tugs on others, meaning that isolated changes to the constitution involve a whole host of trade-offs and unforeseen consequences. This is why micro-constitutional reform (making one-off, discrete changes) often devolves into mega-constitutional reform (with entire packages addressing the grievances of everyone involved).

We’ve tried on numerous occasions to unwind and re-bind the constitutional bargain, and have been successful only once. The deal reached in 1981-82 included a delicate balance between federal authority (centralization) and provincial autonomy (decentralization), with Indigenous self-government left largely unrealized.

The federal government (and Canadians) got the Charter of Rights and Freedoms, for instance, while provinces got the notwithstanding clause. Ottawa retained the ability to spend on anything it wanted, including in areas of provincial jurisdiction, while the provinces got equalization and strengthened control over natural resources and taxation.

Even that deal was tenuous, given that the Government of Quebec did not agree to the new constitution. These circumstances sparked a national unity crisis that consumed the country for over a decade before non-constitutional fixes restored greater stability to Confederation.

Danielle Smith’s invitation to reopen the constitution puts this delicate balance back in play. To secure the massive devolution of power from Ottawa she’s proposing, provinces will be forced to give up some of the powers they currently enjoy. Natural resource revenue would top the feds’ list of demands, as would interprovincial trade. The federal government would retain control over energy and resource exports, including critical minerals, pipelines and power lines — all key for provincial efforts to expand resource development. This control can be important for leverage in trade disputes as we see now with the United States.

That is the great risk involved in saying “yes” to the Smith government’s constitutional questions: in the name of gaining provincial autonomy, Alberta could unwittingly launch negotiations in which it is asked to surrender the most valuable powers it already possesses.

Alberta might well be outnumbered around the bargaining table with provinces siding with Ottawa to tighten central control over things like natural resources to secure more revenue and leverage in international trade negotiations.

Indeed, separatists sell our ongoing debates over independence as a means of preventing Prime Minister Carney from treating oil and gas as a bargaining chip in trade negotiations with President Trump. Re-opening the constitution risks handing Carney that power directly.

To the extent that she’s committed to selling these reforms to the rest of Canada, Premier Smith is framing them as a list of demands to be met. She appears to believe Ottawa will simply concede power without seeking meaningful concessions. While this idealist posturing may satisfy her base, this approach defies history and logic.

Jason Kenney’s foray into constitutional reform shows how ineffective the strategy can be. He convened a referendum-to-nowhere on removing the equalization formula from the constitution. Not a single government in the rest of Canada took serious notice, and the “leverage” he aimed to generate for negotiating a “fair deal” for Alberta evaporated before it could be used. The gambit seemed more like theatre than strategy.

When “leverage” isn’t leverage

That’s the best we can hope for from a “yes” vote to Smith’s four questions: that it amounts to nothing but another intergovernmental embarrassment.

At worst, the premier will spend the next several years attempting to follow through on her commitments to change the constitution. This would be a disappointing and fruitless distraction from the priorities Albertans and Canadians hold for their governments.

It will also waste the political capital needed to pursue realistic intergovernmental objectives like economic growth. Worse yet, it will be another in a long string of ill-conceived constitutional stunts that only serve to reduce faith in government when they come to naught.

But there are other ways to achieve the sort of rebalancing that Smith is suggesting.

A Better Way

Judicial Appointments

Take judicial appointments. Ottawa selects judges to the Court of King’s Bench and Court of Appeal in Alberta. Handing that formal appointment power to the province would require a constitutional amendment that Ottawa would only approve with major concessions. (We don’t even think they’d entertain the idea, in the first place.)

But let’s not ignore the fact that the Alberta government already participates in the selection process, along with representatives of Alberta’s legal profession, and that it results in Albertans being appointed to our bench.

These Albertans have come from conservative, progressive, moderate, and unknown perspectives. Folks from across the spectrum and our province have been elevated to the Alberta Court of Appeal and the Supreme Court of Canada. And there is little evidence that their rulings reflect their personal ideological biases, particularly compared to the situation in the United States.

Even in the US, where ideology has sometimes figured more prominently, judges often rule against the interests of the party that appointed them and they often rule more moderately in accordance with the law and not a more radical view of it.

Even if we take the Alberta government’s argument at face value, it’s important to remember that most cases in our own Court of King’s Bench and Court of Appeal involve criminal law (federally-defined) and family law (mostly provincially defined). The remaining caseload primarily covers private disputes like contract, torts, and other concerns over property and civil rights. And provinces already oversee court procedures and most of administrative law. As a result, the vast majority of these cases have little room for ideological imprinting.

It’s not as if the decision is made in a smoke-filled room in Ottawa and some Laurentian elite is parachuted into position from afar. The Judicial Advisory Committee includes a nominee of Alberta’s Attorney General, alongside representatives of the provincial law society, the Canadian Bar Association, and the judiciary itself.

A Modest Alternative

If Alberta wants more influence on judicial appointments, they could negotiate changes to the terms of reference for the Judicial Advisory Committee. A reasonable request would involve equal federal/provincial representation, a codified role for the Attorney General of Alberta, and/or the creation of a non-binding provincial longlist from which a shortlist would normally be made. None of that requires a constitutional amendment.

Let’s also not forget the motivation behind the Smith government’s push for control over judicial appointments. They want to choose judges who reflect “Alberta values” (as yet, completely undefined). The current process is in place, in part, to protect against this sort of regionalization and politicization of the bench. Ask the Alberta Lawyers for Judicial Independence, who make a solid case that:

• “independent judges protect everyone

• federally-appointed judges are Albertans

• politics has no place in the courts”

Taking over judicial appointments is also part of a much broader plan to dismantle checks and balances on the premier's power. As written elsewhere, Smith has systematically sidelined the legislative branch while attacking and circumventing the courts. This referendum question appears to be driven by the same motives. It’s a move pulled from the most well-worn pages in the MAGA Playbook.

Real conservatives respect and defend courts

Federal Spending Power

The constitution doesn't need to be amended to restrict the federal government’s power to spend in areas of provincial jurisdiction.

Led by Quebec, provinces have been trying for over half a century to rein in the federal spending power via constitutional amendment. Various constitutional proposals leading up to the Patriation deal in 1981-82 failed, as did those embedded in the Meech Lake and Charlottetown processes. If this history amounts to anything, the Smith government’s constitutional proposal is a non-starter — not just in Ottawa, but among have-less provinces where national programs are welcome substitutes for provincial ones.

A Modest Alternative

As outlined elsewhere, formal intergovernmental accords like the Social Union Framework Agreement (SUFA), produced real results. The 1999 deal can be renewed, revamped, and reinvigorated to prevent Ottawa from establishing new national programs without majority provincial consent and the ability of unwilling provinces to opt out with compensation. This model was established by the Chretien government and undergirded Harper’s approach to open federalism. Few ideas carry this sort of durable, inter-party support. Smith could table a revised SUFA at the next meeting of premiers or first ministers.

Provincial Paramountcy

Then there is the question of provincial laws taking priority over federal ones. This would reverse the current constitutional rule, which provides for federal paramountcy — one of the reasons Ottawa would be highly unlikely to approve it.

A Modest Alternative

Provincial governments have many tools at their disposal to prevent this sort of federal overreach or policy overlap. Alberta uses these all the time, whether it’s successfully negotiating equivalency agreements to cut down on duplicative regulations (e.g., methane) or successfully challenging federal laws in court (e.g., national securities regulation). This coordination and contestation is now commonplace.

As it stands now, courts often try to allow both federal and provincial laws to operate, to the extent possible. We have both federal and provincial laws applying to interprovincial trucking, for instance, and few would argue this has led to major problems.

Abolishing the Senate

You cannot abolish the Senate without changing the constitution, and doing so would require unanimous agreement among all provinces and the federal government. Even Danielle Smith admits that's never going to happen given the attachment many provinces feel to their representation in the Upper Chamber. She’s on record as saying that this vote is only to “prove a point.” Which raises the question: why make abolition the goal? If the concern is that Alberta lacks influence in Parliament, work on Alberta’s influence.

Western representation in Parliament has been increasing in recent decades and can be expected to continue to do so as these provinces grow.

Modest Alternatives

The existing Senate appointments process uses an advisory board containing two members from the province affected by the vacancy. As it stands, provincial governments are consulted in the naming of those individuals; it wouldn’t take a constitutional amendment to reform this process to increase the number of provincial members on the board or to make these members provincially-appointed.

One of my Lead Not Leave colleagues will have more to say about more substantive changes to the Senate appointment process in the coming days. He calls for the prime minister to appoint some or all senators from lists provided by the provincial governments. This could be accelerated by using Section 26 of the Constitution Act to temporarily add new Senators so that it better reflects provincial interests.

As it is, the Senate does not often hold up legislation from the House for long. It has been known to study and emphasize regional and minority rights and interests and find an accommodation with the House of Commons.

Return to Reality

Many hardline federalists will have no problem denying the premise of the Smith government’s four referendum questions on the constitution. They don’t buy that Ottawa has too much authority in Confederation and that provinces like Alberta need more authority. They point to the fact that Canadian provinces have more powers than similar provinces and states in other countries.

For autonomists, soft separatists, and frustrated federalists, though, there are reasonable alternatives to reopening the constitution that would provide provinces like Alberta more influence over national decisions that impact them directly. We can do this without risking the authority we already have, or tying up all of our attention and political capital when other, more important issues confront us.

We don’t need another Meech Lake process or Charlottetown debacle hanging over our governments and dominating our agendas with years of fruitless haggling. That will only distract us from improving the federation and dealing with real policy challenges. We can vote “no” to all four constitutional questions and get down to the real business of leading, not leaving.