An Alberta Sovereignty Ordinance?

Yesterday I argued that the Lieutenant Governor shouldn’t withhold royal assent for the so-called Alberta Sovereignty Act. Both supporters and critics of the proposal agree that it’ll be unconstitutional by design. The whole point is to provoke confrontation, confusion, and chaos. If that’s the idea, why wouldn’t the Lieutenant Governor be justified in withholding assent? How could the Crown assent to a bill designed to undermine the rule of law? And how can we ask the Lieutenant Governor to leave it up to the courts to determine if the law is unconstitutional when the law will apparently rob the courts of their authority in Alberta?

If we were to strongman the argument here, we would point out that the Lieutenant Governor is the only actors who can stop this maddness, since once the law is granted assent, the Alberta government will simply ignore the courts. She can’t simply wait for the judiciary to do its job, because a Smith government has no intention of listening to judges applying federal law or the constitution.

There’s one big problem with this argument, though: if the Alberta legislature and government would refuse to abide by court rulings, why would they simply accept a denial of royal assent by the Lieutenant Governor? If they’re going ignore the courts, why wouldn’t they ignore the Crown, too?

Those pinning their hopes on a refusal of royal assent seem to think that would be the end of the story. The bill would be denied assent and there’s nothing anybody could do about it. Frankly, that seems quite optimistic, given what we know about the purpose of the proposed law.

Above all, as we’re already seeing, the legitimacy of the Lieutenant Governor would be called into question because the federal government decides who holds the office. It’s unclear to me why the Sovereignty Act people would refuse to accept the applicability of federal law and the rulings of federal courts, but kneel before the discretionary authority of the federally appointed vice-regal representative.

I suppose the idea is that they would have no choice. The bill couldn’t become law without royal assent. End of story. Except that we’ve seen this kind of thing before and it didn’t turn out that way. In 1642, the English Parliament sought the authority to appoint military commanders without having to secure the King’s approval. When a bill to that effect was brought before the King for royal assent, he refused to grant it. Did the parliamentarians shrug and give up? Not exactly. Undeterred, Parliament declared that the bill was a duly passed and binding ordinance. When their bill couldn’t become an act without assent, they came up with an alternative construct that had the same effect. When royal assent became an obstacle, parliamentarians found a way around it.

Do I think Alberta would pivot to an Alberta Sovereignty Ordinance if it could not get royal assent for a Alberta Sovereignty Act? Probably not, since this whole thing sounds more like a stunt than anything else. But it should force us to ask why we think those who are prepared to undermine the rule of law would think twice about circumventing the Lieutenant Governor. Indeed, if what they’re looking for is fight more than anything else, the vice-regal representative may be an ideal first target.

All this to say, if the argument is that the Lieutenant Governor can’t rely on the courts because the judiciary will be ignored, why should we think that the Crown will be treated any differently than the courts?

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