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.