Not Just an Independent Country but a Political Ideology

In August of this year, one of the leading organizations behind Alberta’s separatist movement issued a draft constitution for an independent Alberta entitled “The Foundation of Freedom.” In it, the Alberta Prosperity Project proposes an independent Alberta designed to entrench a particular political ideology.

Ordinarily, one would expect the constitution of a democratic country to establish the structure of the government, for example: the creation of an elected parliament or congress of elected representatives, the creation of an executive branch to carry out law, and the creation of an independent judiciary to interpret and apply the law. Within that structure, the people would be free to elect their representatives, who would be free to govern in accordance with the will of the people, subject to the protection of certain fundamental rights and freedoms of individuals within the society.

The “Foundation of Freedom” document goes well beyond this, entrenching a political philosophy and rigid rules which would forever limit the ability of government to respond to future needs and changing circumstances.

This draft constitution sets out certain limited categories in which the government is allowed to legislate. It then sets out a series of “absolute prohibitions” including “regulation or funding of the media”, “any area not clearly tied to defence, trade, or peace and order”, and “creation of new rights, obligations, or social programs” outside the categories specifically enumerated in the document.

This reflects a political ideology that the role of government should be strictly limited. That is an ideology that members of the Alberta Prosperity Project are entitled to hold, but this draft proposes entrenching that ideology into the constitution, to be binding on everyone, regardless of the will of the people at any point in time and regardless of the circumstances that may arise at any point in time.

Foundation of Freedom goes further, prescribing that annual income taxes shall not exceed 10% of net income, that consumption taxes shall not exceed 10% of the net purchase price of goods or services, and that government may not operate a deficit for more than two consecutive years within a given term. It prohibits a government from incurring debt for operational or recurring expenditures and permits debt for capital infrastructure projects (like roads or schools or hospitals) only if approved by referendum. It further prescribes a spending cap tied to the gross domestic product of the country, which may be exceeded only in the event of a formally declared emergency or armed conflict.

These strict financial limitations would severely constrain the role of government. It is difficult to conceive, for example, how the government could create a publicly funded health care system or establish any form of social safety net with these limitations in place. By constitutional dictate, regardless of the will of the people at any point in time, the wealthy would pay less tax; the poor, the elderly and the disabled would receive fewer supports.

Foundation of Freedom then prescribes that these parts of the constitution, among others, can never be amended, again regardless of the will of the people at any point in time, and regardless of the circumstances that may arise at any point in time.

This draft constitution includes protections of certain fundamental rights and freedoms, but it does so in a way that is quite different from the Charter of Rights and Freedoms.

For example, it recognizes certain rights of every citizen (excluding permanent residents, temporary foreign workers, and refugees) to bear arms and to liberty, freedom of expression, freedom of religion, and peaceful assembly, among others. Unlike the Charter of Rights and Freedoms, these rights are not subject to such reasonable limitations as may be demonstrably justified in a free and democratic society. That would bar anti-hate speech laws. That might even bar laws prohibiting child pornography because they conflict with freedom of expression and no exceptions are allowed.

The document also includes a constitutional right to protection against discrimination on the basis of race, ethnicity, gender, religious belief, and a category called “Lawful Sexual Orientation”. However, unlike the Charter of Rights and Freedoms, it does not provide protection against discrimination on the basis of age or disability, and it prohibits the courts from implying any such grounds. Again, the elderly and persons with disabilities get the short end of the stick.

The document goes on to prescribe how courts must interpret and apply the constitution. In particular, it requires that the constitution must be interpreted solely by its text, read in its immediate structural context. Presumably, that means the broader societal context may not be taken into account. It also requires that the courts must interpret the constitution and all other laws according to its original meaning. This is called the “originalist” doctrine, which has been advocated by the most conservative judges on the United States Supreme Court, and which has upended rights, like abortion rights, in recent years.

This is in direct opposition to the “living tree” doctrine that has been the law of Canada for almost 100 years, allowing courts to interpret the constitution to adapt with the changing times. This doctrine was articulated in a 1929 case in which the court interpreted the reference to “persons” in the constitution to apply to both men and women, even though that might not have been contemplated in 1867 when the constitution came into force.

With the publication of Foundation of Freedom, the organization leading the separatist movement has shown it is looking not only for an independent Alberta, but an Alberta mandated by the constitution to forever reflect their own political ideology.