Question 6: Appointment of Judges and the Rule of Law

Question 6

Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to have provincial governments, and not the federal government, select the justices appointed to provincial King's Bench and Appeal courts?

• At the heart of our judicial system is the fundamental principle that judges are required to act independently and impartially and to apply the law.

• The government’s role is to enact laws that are in the best interests of its citizens; the courts’ role is to ensure those laws are applied correctly and consistently.

• Democracies worldwide require their judges to be impartial and free of any government or other improper influence.

The question as framed appears benign. Those who favour separation will see the proposed change as entirely appropriate. Others, who understand the importance of the rule of law and the underlying intention of the question, will view it with alarm.

How are judges appointed now?

Alberta has three levels of courts: the Alberta Court of Justice, the Court of Kings Bench of Alberta, and the Court of Appeal of Alberta. All three levels of court are established by Alberta legislation. The court houses are built and maintained by the province and the staff (other than the judges) are Alberta government employees.

The Alberta Court of Justice handles the vast majority of legal cases including criminal, regulatory and civil cases such as traffic violations, offences against provincial laws, youth matters, family law and summary criminal offences. As set out in Canada’s Constitution, judges and justices of the peace of this court are appointed by and paid by the Alberta government.

The Court of King’s Bench acts as the superior trial court. It handles the most serious criminal trials (like murder or drug trafficking), corporate litigation, bankruptcy, estate disputes, and divorce. Pursuant to the constitution, judges of the Court of King’s Bench are appointed by and paid by the government of Canada.

The Court of Appeal reviews whether errors of law or fact occurred in judgements by the Court of King’s Bench and the Alberta Court of Justice. It sits as a panel of judges, usually three. As set out in the constitution, judges of this court are appointed by and paid by the government of Canada.

This structure for the appointment of judges to certain courts by the provincial government and the appointment of judges to certain other courts by the federal government has been in place throughout the country’s 159-year history.

The current appointment process for federally appointed judges, designed and implemented by the Mulroney government and subsequently modified by the Harper government, is as follows. Each province has at least one seven-member Judicial Advisory Committee tasked with screening applications for judicial appointment.

The committees are composed of a representative of the province’s judiciary, as well as representatives of the provincial law society and Canadian Bar Association. In addition, each committee has four members at large (provincial residents), three nominated by the federal government and one by the provincial government.

All applicants are required to submit a comprehensive application outlining their qualifications as well as their legal and community experiences. Notably, they are not asked to state their position on any matter they may be called upon to adjudicate if appointed.

The committees carefully review all applications and undertake comprehensive reference and reputation checks to ensure the candidates recommended for appointment possess the personal characteristics and experience required to discharge judicial duties fairly and impartially.

The federal government has promised to appoint only those applicants recommended by the committee and at the present time, this occurs without exception.

This screening process ensures a uniform national standard for the appointment of qualified judges.

Alberta has a similar screening process in place for the appointment of judges and justices of the peace of the Alberta Court of Justice.

So why change it?

Premier Smith has explained her concern. Her dissatisfaction with judicial authority was first voiced during the UCP leadership race to replace Premier Jason Kenney. Ms. Smith announced then that if she were elected Premier, she may decide to ignore decisions from the Supreme Court of Canada that were not in Alberta’s interests. The push back from all but her base was unanimous - the resulting chaos would destroy both the economy and social order; Alberta would be unable to attract investment without a properly functioning legal system. A few weeks after she won the UCP leadership Ms. Smith announced she was abandoning the idea.

More recently, the Premier advised that her government was increasingly willing to resort to the Notwithstanding Clause of our Charter of Rights and Freedoms to counter judicial decisions which in her opinion, strayed too far from the public interest. In other words, that the government would protect legislation that courts may find unconstitutional – another way of overcoming judgments thought to be unfavorable.

In the ensuing discussion the Premier defended her position and shared her philosophy regarding the proper role of the judiciary. As reported by the Canadian Press, the Premier has said:

“Unelected judges making decisions without oversight, and without having to go to the people to get the democratic endorsement of their view – that’s not democracy. When elected officials make decisions, that is democracy.”

That followed an earlier comment by the Premier:

“We are not going to defer to unelected judges who do not have democratic accountability on their side.”

Another time, on her radio program, the Premier mused that she “wished she could direct judges.”

Other than President Trump, no duly elected leader of a democratic society has voiced such thoughts.

Undermining the fundamental role of the judiciary

The statements by the Premier and others evidence a profound and disturbing misunderstanding of the role of the judiciary and the importance of judicial independence.

At the heart of our judicial system is the fundamental principle that judges are required to act independently and impartially and to apply the law. Their decisions are not made on the basis of the political leanings of the party in office when they were appointed. Nor are they made on the basis of what might appear to be popular opinion or the opinion of the majority. In fact, some laws, like the Charter of Rights and Freedoms and the Human Rights Act are expressly intended to protect the rights of minorities.

The government’s role is to enact laws that are in the best interests of its citizens; the courts’ role is to ensure those laws are applied correctly and consistently.

In response to the Premier’s statements, the three Chief Judges of Alberta, leaders of the three levels of court, took the unprecedented step of releasing a joint public statement to explain the importance of the rule of law and judicial independence in a democracy.

No other Canadian province, no other Western democracy, indeed no true democracy anywhere in the world allows its government to “direct” judges or have its judicial independence compromised in any way. The opposite is true – all require their judges be impartial and free of any government or other improper influence.

Judges who would allow their decisions to be influenced to favour the government that appointed them or take direction from that or any government would corrupt our justice system. In fact, this is the very reason judges in Canada are not elected; their role is to decide cases based on the law, not on what they think they need to do to be re-elected.

We must remember that there can be no justice without the rule of law and judicial independence which is an integral aspect of the rule of law. They are the foundation of every functioning judicial system, which in turn is the foundation of every true democracy.

So it is of concern when the Premier and others persist in speaking of the need to bend the judiciary to the government’s will.

And that appears to be the objective of this question Albertans will be asked to answer in October.

Our View

Based on our analysis, we are voting no to question 6.

Question 7: On the Senate

Question 7

Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian constitution to abolish the unelected Senate?

Background: The Role of the Senate

• The Senate of Canada is an integral part of Canada's parliamentary democracy. It was designed to provide "sober second thought" on legislation passed by the House of Commons, to represent regional interests, and to serve as a check on the power of elected governments.

• While the Senate has evolved significantly over the past 159 years, debates about its role, effectiveness, and method of appointment continue to shape discussions about its future.

• The Senate was created by the Constitution Act, 1867 (formerly the British North America Act). The Fathers of Confederation looked to both the British House of Lords and the United States Senate when designing Canada's upper chamber. Several objectives informed its creation. The Senate was specifically designed to represent regions within the federation. Over time, it has also become a forum for voices that may be underrepresented in electoral politics, including Indigenous peoples, linguistic minorities, and other minorities within Canadian society. 

• Seats in the Senate are allocated by region: Ontario, Quebec, the Maritime provinces and the Western Provinces each have 24 seats; Newfoundland and Labrador has 6 seats and the three Territories each have one seat. This distribution reflects the historical reality at the time of Confederation and later constitutional amendments.

• Most bills passed by the House of Commons must also be approved by the Senate before becoming law. Senators review legislation clause by clause and may propose amendments. The Senate can vote against legislation sent to them from the House of Commons, but this happens rarely. Much of the Senate's influence is exercised through its committees.

• Senate committees generally do outstanding work, often taking the time to consider important issues of public policy that House of Commons committees do not have the time for, or interest in taking up. Senate committees often hear from a wide range of people and interests that may not have other means of having their voices and concerns heard.

• Under the Constitution, senators are formally appointed by the Governor General on the advice of the Prime Minister. Historically, appointments were largely partisan, with prime ministers selecting individuals affiliated with their political party.

Senate Reform:

Discussions  and debate about the usefulness of the Senate and its ability to fairly represent the regions of Canada, helped lead to the creation of the Reform Party which demanded a Triple “E” Senate: elected, equal and effective. 

The Reform Party was a powerful voice for change, and when Stephen Harper became Prime Minister in 2006, he began his pursuit of Senate reform. None of his initiatives, legislative or otherwise, succeeded and in 2014 he submitted a reference case to the Supreme Court of Canada, asking a series of questions regarding fundamental change to the Senate, including its abolition. 

The Court’s response to those questions put severe constraints on the possibility of making major changes to the Senate. The Court emphasized that the Senate is a foundational component of Canada's constitutional architecture and cannot be fundamentally transformed without substantial provincial participation. It concluded that: 

• Parliament alone cannot create an elected Senate. 

• Parliament alone cannot impose term limits that fundamentally alter the institution. 

• Abolishing the Senate would require unanimous consent of Parliament and all provinces.

• Changing the fundamental characteristics of the Senate, such as electing senators, altering provincial seat allocations and modifying senators’ tenure, would require approval of Parliament and at least seven provinces representing at least 50 percent of Canada's population: the 7/50 formula.

After the Supreme Court decision, Prime Minister Harper abandoned all attempts at Senate Reform.

In 2016, Prime Minister Trudeau wanted to create a more independent, less partisan Senate but was constrained by the 2014 court decision. 

To make the kind of change he wanted, he established an Independent Advisory Board to vet interested candidates for the Senate and create a short-list from which he could make appointments.

He also removed Liberal Senators from the Liberal government caucus and indicated that they would sit as independents.  Today, individual Senators sit in several caucuses or groups: the Independent Senators Group; the Canadian Senators Group; the Progressive Senators Group; the Conservative Party of Canada; and the Non-affiliated group.

This year, Prime Minister Carney announced that he believes being a partisan should not be a barrier to a Senate appointment. Two of his recent appointments reflect this change. He also appears to be looking for Senators with expertise in areas that will help move his economic agenda through the legislative process more quickly.

The Reality:

Given the 2014 Supreme Court ruling that abolishing the Senate would require the consent of Parliament (including the Senate itself) and the unanimous consent of all ten provinces, it is almost impossible to imagine that any effort to abolish the Senate will be successful.

And considering that one of the founding principles of the Senate is the protection of regional interests, it seems unlikely that Alberta would find many “other willing provinces” agreeing to give up on that principle, however flawed it may be in practice.

The reality is that even if a majority of Albertans vote yes to this question, there is little chance that anything will happen as a result, other than, perhaps, futile and divisive debates, that distract from the more important issues facing Alberta.

Our view

We are voting NO on Question 7.

Question 8: Opting Out is the Wrong Tool

Question 8

Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to allow provinces to opt out of federal programs that intrude on provincial jurisdiction such as health care, education, and social services, without a province losing any of the associated federal funding for use in its social programs?

• The federal government has an interest in national programming so that all Canadians enjoy relatively equal access to the social programs it views as important to the wellbeing of citizens, regardless of where they live.

• The question seeks a constitutional amendment and it’s hard to imagine parliament would agree to a change which limits their power to enact programs.

• The better path is to keep negotiating the terms of federal-provincial cooperation, as governments have done for decades.

Background

In the power-sharing arrangement between the federal and provincial governments, the Constitution provides that the federal government can raise money through its power to tax citizens, both directly, where the tax is demanded of the very person intended to pay it (for example, income tax), and indirectly (for example, customs duties and the goods and services tax (GST)). Provinces can also raise money, but only through direct taxation within the province, such as personal income tax, retail sales tax, and resource royalties.

Building on its taxing and appropriation powers, the federal government is generally understood to have a “federal spending power,” giving it the ability to spend the money it raises and to make grants to provinces or individuals, even in respect of subjects that fall under provincial jurisdiction. The spending power is not defined in the Constitution. It is an implied power, located in a combination of provisions: public property (s 91(1A)), taxation (s 91(3)), and the appropriation of federal funds (s 106).

The Supreme Court of Canada has never definitively ruled on its existence or limits, but appellate courts have upheld it: in Winterhaven Stables, the Alberta Court of Appeal confirmed that Ottawa may spend the money it properly raises and may attach conditions to that spending, so long as the conditions do not in substance amount to regulating a matter outside federal authority.

The democratically elected government of the day may pass laws and set policies to advance the mandate given to it by voters. Its spending choices range from economic ones, such as the purchase of the Trans Mountain pipeline, to social ones such as childcare, health care, pharmacare, and dental care. Some of these areas fall under provincial constitutional authority, which is precisely why Ottawa uses the spending power rather than a direct power to legislate.

Why does the federal government get involved in areas of provincial authority, such as health care, post-secondary education, childcare, and pharmacare?

The federal government has an interest in national programming so that all Canadians enjoy relatively equal access to the social programs it views as important to the wellbeing of its citizenry, regardless of where they live or what their means may be, so that there are national standards for the basics necessary to live a life with dignity. Some provinces have resisted federal conditions on the use of these funds, for reasons that include the long-term sustainability and design of the programs.

Do the provinces have a say?

Yes. For decades, and to this day, federal social objectives have been pursued through the spending power with varying degrees of collaboration with the provinces, expressed in negotiated multilateral and bilateral agreements that provide for reporting and accountability. Courts have confirmed that Ottawa may set, and later change, the conditions attached to these transfers.

In a number of areas, Quebec has secured asymmetrical arrangements with compensation. Canada is, in this sense, like a family of individuals with different philosophies and politics, pooling resources so that each member has enough support to meet basic needs and pursue the life they want, while remaining, constitutionally, equal and coordinated partners rather than dependents.

What is a recent example of the federal spending power used for the benefit of all Canadians?

A recent example is the federal government’s April 2021 commitment to drastically reduce childcare costs across the country. Childcare and family advocates celebrated it as an historic investment. Premier Jason Kenney initially decried the program as supporting only “nine-to-five, urban, government and union-run institutional daycare options,” but Alberta ultimately signed on, illustrating both the friction the spending power can create, and the benefits provinces secure by participating.

What would Question 8 actually require?

This is the part the question does not spell out. Question 8 does not ask for a policy change; it asks for a constitutional amendment. Amending the division of powers engages Part V of the Constitution Act, in particular the general (“7/50”) amending formula: it requires resolutions of the Senate and House of Commons and of the legislative assemblies of at least seven provinces representing at least fifty per cent of the population. Alberta “working with willing provinces” could not achieve this on its own; the federal Parliament would also need to agree; a significant hurdle, since it would mean Ottawa consenting to limits on its own programs.

The closing words of the question deserve particular attention: opting out “without a province losing any of the associated federal funding.” Much of that funding is conditional precisely because it secures the national standards the programs are designed to deliver. In practice, the question asks Parliament to continue the funding while a province steps away from those shared standards.

What does the question really ask?

At its core, Question 8 asks Albertans to support the province’s ability to set its own course on social priorities pursued nationally, while continuing to receive the associated federal funding. Those priorities have historically reflected widely shared Canadian values such as supported childcare and accessible, publicly funded health care, aimed at ensuring that every Canadian, regardless of circumstance, has the essentials to live a life with dignity.

Our view

The concern behind Question 8 is worth taking seriously, and provinces are right to press for a fair partnership. But this particular remedy is the wrong tool for the problem. The better path is to keep negotiating the terms of federal-provincial cooperation, as governments of all stripes have done for decades.

We are voting NO on Question 8.

Question 9: Greater Provincial Powers: Be Careful What you Wish For

Question 9

Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to better protect provincial rights from federal interference by giving a province’s laws dealing with provincial or shared areas of constitutional jurisdiction priority over federal laws when the province’s laws and federal laws conflict?

We ought never lose sight of the great genius of our constitutional structure, which has produced a free and secure democracy, one that has served Canadians well for 155 years. Our ancestors chose a federal, not unitary, structure for a purpose – to unify separate colonies and create a country. The negotiated division of powers lies at the heart of what makes this country what it is, and why, despite significant tensions from time to time, Canada has been able to survive and prosper since confederation. It remains one of this country’s greatest strengths. It will continue to benefit present and future generations as we face the environmental, economic, and security challenges ahead, providing that we respect the principles on which Canada has been founded: federalism, responsible government, and the rule of law.

— Chief Justice C. Fraser, Reference re Impact Assessment Act, 2022 ABCA 165

Background

In 1867, the Constitution — the supreme law of Canada — was drafted to allocate powers, or areas of jurisdiction, between the federal government and the provinces to ensure a functional federalist democracy.

Federal powers include the power to make laws for peace, order and good government, the regulation of trade and commerce, and the criminal law. Provincial powers include the power to make laws for property and civil rights, municipalities, and non-renewable natural resources.

Some areas have a “double aspect”: both governments may share power to make laws, requiring cooperation and determination by the courts if they cannot agree. Shared powers, shaped by judges’ decisions, include the power to make laws regarding the environment.

1. What is the rule now?

When a federal and a provincial law truly clash in an area both can legislate, courts hold that the federal law applies and the provincial law is set aside — not struck down, just paused while the clash lasts. Judges built this rule (called “federal paramountcy”) over more than a century and use it sparingly.

2. What is the question is asking?

It asks Albertans to support reversing the rule about which law applies — so that in shared areas the province’s law applies, and the federal one is set aside where they clash.

3. When does this paramountcy rule matter?

Only where both governments are allowed to make laws on the same topic. In areas that are the province’s alone, like schools or hospitals, Alberta’s law already applies.

4. How was this paramountcy rule established?

Federal paramountcy isn’t written plainly into the Constitution. Judges developed it over more than a century of cases — and they use it sparingly, so most of the time both laws are allowed to stand. An approach of cooperative federalism has developed.

5. What are “shared areas” of power in the Constitution?

The Constitution has no clear list of “shared” areas; judges have made decisions over time as new areas of jurisdiction are identified. One area the courts have decided is a shared power is the environment. Even if the change happened, people would end up in court arguing over which law applies or whether they can co-exist.

6. Can this change occur if there are other “willing provinces” on board?

Alberta cannot do this with a few friendly provinces. Changing the Constitution needs Parliament plus seven provinces holding half of Canada’s people — and Ottawa itself would have to agree to let provincial laws apply instead of its own.

7. Does this change proposed in the question require a full constitutional amendment?

Deciding which law applies when two clash sets the basic balance of power between Ottawa and the provinces, so changing it would need a full constitutional amendment. Governments would likely need to consult First Nations first.

8. Is the constitutional change asked for in the question realistic and possible?

No. The question ignores the complexities and is near impossible to achieve.

Constitutional powers and the legal decisions that have interpreted them over decades are complex, nuanced, and not easy to reduce to simple solutions like that proposed in this question. It seems that Alberta has put this question to a vote simply to stir up controversy, well knowing the suggestion of achieving a workable constitutional amendment on paramountcy is dreaming in technicolor.

Our View

A “yes” vote won’t change any law. It only requires the Alberta government to formally start a process to try to make a change. It would still need Ottawa and most of the country to agree – which almost certainly won’t happen.

We are voting NO on question 9.