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Alberta

IN CASE OF EMERGENCY, READ THIS! ALBERTA’S COVID-19 REPORT

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42 minute read

From the Frontier Centre for Public Policy

By Barry Cooper

The report calls for emergency management experts – not doctors or health care bureaucrats – to be in charge when such disasters strike, with politicians who are accountable to the people making the key decisions. Most important, the report demands much stronger protection for the individual freedoms that panic-stricken governments and overbearing professional organizations so readily quashed.

Nobody needs reminding that the Covid-19 pandemic – and the official responses to it – left hardly a person, group or country unaffected. From the lost learning of school closures to the crushed businesses and ruined lives, to the recurring social separation, to the physical toll itself, the wreckage came to resemble recession, social disintegration, war and the ravages of disease all in one. Yet the governments and organizations that designed and oversaw the emergency’s “management” have proved decidedly incurious about delving into whether they actually did a good job of it: what went right, what went wrong, who was responsible for which concepts and policies, who told the truth and who didn’t, and what might be done better next time. Few countries are performing any such formal evaluation (the UK and Sweden being prominent exceptions).

In Canada, the Justin Trudeau government has rebuffed calls for a public inquiry (perhaps a small mercy, as it is hard to envision this prime minister not politicizing such an exercise). Nearly every Canadian province is also ignoring the matter. The sole exception is Alberta, which in January created the Public Health Emergencies Governance Review Panel to, as its terms of reference state, “review the legislation and governance practices typically used by the Government of Alberta during the management of public health emergencies and other emergencies to recommend changes which, in the view of the Panel, are necessary to improve the Government of Alberta’s response to future emergencies.” The Panel’s inquiry fulfilled a promise made by Premier Danielle Smith when she was running for the leadership of the United Conservative Party.

These terms of reference need to be understood because they greatly influenced what followed – both the restrictions on the Review Panel’s inquiries and the broad scope of its recommendations, released in a densely written Final Report (367 pages including appendices) on November 15. The Panel was chaired by Preston Manning, Leader of the Official Opposition in Ottawa some 25 years ago but who more recently became a prominent voice of skepticism regarding the pandemic response, particularly the dismissive treatment of Canadians’ rights and liberties. With this report Manning has driven and led not one but two major pandemic-related reviews, as he was also central in the non-governmental National Citizens Inquiry on Canada’s Response to the Pandemic, which heard wrenching personal testimony.

Despite working under limitations, Manning and his colleagues have rendered valuable and, indeed, unparalleled public services with each effort. Here one must note whom Manning requested for Alberta’s Review Panel. They are in alphabetical order: Martha Fulford, an academic pediatrician at McMaster University with numerous scholarly articles to her credit; Michel Kelly-Gagnon, a businessman and President Emeritus of the Montreal Economic Institute; John C. Major, a former Justice of the Supreme Court of Canada; Jack Mintz, arguably Canada’s most distinguished living economist; and Rob Tanguay, a Calgary-based clinical psychiatrist specializing in treating addiction, depression and pain. Additional specialists prepared several of the report’s 11 appendices.

This is important because the response of Alberta’s NDP and its left-wing media helpers has been to accuse the Panel of mongering conspiracy theories and attempting to legitimize quack pseudo-science. They are using Manning, the founder and longtime leader of the Reform Party of Canada, as a convenient whipping boy. But they are effectively calling the entire panel – including a former member of the nation’s highest court who stood out for his calm and measured approach – a bunch of nutters if not worse. These critics seem to have emitted not one positive thought about any aspect of the Panel Report. That tells you a great deal about them, including that they probably didn’t even read it.

The report also prompted some balanced to favourable coverage, including from several journalists who previously were pro-lockdown, pro-masking and/or pro-vaccine. Edmonton Sun columnist Lorne Gunter, for example, termed the report “sensible and moderate,” noting that it calls for following “all of the credible science.” Gunter’s use of “all” is significant for, he notes, “a lot of what was pitched to the public as definitive scientific knowledge, such as the vitalness of mask and vaccine mandates, school closures, event cancellations and lockdowns was questioned by solid, reputable scientists (not just streetcorner anti-vaxxers and ‘I did my own research’ social-media experts).” Calgary Herald columnist Don Braid, a habitual UCP critic, also sounded impressed.

Alberta had a thoroughly designed, tested and previously deployed emergency plan. It just chose not to use it against Covid-19. This bizarre and gravely damaging decision has still not been explained. 

So what is actually in the report? Chapter 1’s review of the Panel’s purpose notes it was set up to review the procedures Alberta has to respond to “any public emergency, including a public health emergency,” and how its preparations could be improved, including by broadening and deepening “the role of science in coping with future emergencies.” Its purpose was not to criticize Alberta’s actual responses to the Covid-19 event. While the Covid-19 public health emergency was the initial reason the panel was established, its recommendations would apply more broadly. And while science should be considered central to good public policy, science should not be regarded as consisting of a single narrative. Accordingly, “alternative perspectives” (Report, p. 5) should also be considered.

Alberta Emergency Management Agency

The spring 2020 spectacle of wildly shifting statements from public health officials and political leaders, its blizzard of decrees and edicts, proliferating “mandates,” haphazard changes of direction, imposition of seemingly arbitrary rules, public chaos, and sheer aura of panic – sweat-drenched faces, bulging eyes – might lead any citizen to believe that governments had never planned for or faced an emergency. The promiscuous use of “unprecedented” to describe Covid-19 only added to this feeling. In fact, Alberta had a thoroughly designed, tested and previously deployed emergency plan. It just chose not to use it against Covid-19. This bizarre and gravely damaging decision has still not been explained.

The Final Report’s largely overlooked Chapter 2 discusses improvements to the Alberta Emergency Management Agency (AEMA), making it important on several levels. The Panel recommends AEMA be adequately funded and remain the lead agency in dealing with any future emergency, including any future medical emergency. This alone is huge and hugely welcome. To ensure that individuals who are capable of dealing with emergencies and not just apprehended medical crises are in fact in charge, the Panel recommends several legislative changes to the Emergency Management Act and Public Health Act. Even better.

This sound recommendation rests upon the distinction between emergency management and normal policy decisions made by bureaucrats. The original Alberta emergency plan was developed in 2005 to deal with an anticipated influenza pandemic, and was in turn based on planning initiated across North America following the 9/11 terror atrocity. Alberta’s plan was similar to the approach followed by Sweden in 2020, which despite widespread initial condemnation proved highly successful. Its essential feature was that it was written and was to be implemented by individuals who specialize in emergencies, not by individuals with alleged expertise in the specific attributes of an anticipated emergency such as influenza or Covid-19, what the Panel on page 25 refers to as “subject-matter experts” (a more extensive quote is below).

By way of analogy, societies well-prepared to deal with emergencies do not put a limnologist in charge of an emergency response when riverbanks are unexpectedly breached and cause catastrophic flooding. Nor do they scramble to place a vulcanologist in charge when a volcano erupts and threatens lives and livelihoods. The purpose of putting highly trained emergency professionals in the lead during difficult situations is to remove as much as possible the shock effect from the surprises that emergencies typically bring, especially to normal politicians and conventional bureaucrats who expect normalcy to last forever and who panic when it doesn’t.

The emergency plan Alberta had going into 2020 was designed by David Redman, a former senior Canadian Forces officer whose 27 years of service included combat experience, a vocation that typically deals with unexpected surprises. The problem as the pandemic began was not in any lacunae that the Alberta emergency plan may have contained. Rather, as Redman, who at the time was director of Community Programs for Emergency Management (i.e., coordinating local responses), told C2C Journal in an interview in late 2020, “Governments took every plan they had ever written and threw them all out the window. No one followed the process. [The politicians] panicked, put the doctors in charge, and hid for three months.”

Redman was also emphatic on the question of fear, which is inevitably transmitted by panicked officials. He spent countless hours during the pandemic trying to warn every Canadian premier and many federal politicians that discarding emergency management principles and giving healthcare bureaucrats unprecedented authority was dangerous and would likely lead to disaster. Specifically, he urged healthcare officials and politicians to avoid expressing fear. Instead, he sadly noted in an interview with the Western Standard last week, “They used fear as a weapon. In emergency management you never use fear. You use confidence. You show confidence that the emergency can be handled and present a plan to show how this will be achieved.”

The Government of Alberta made a catastrophic and, as said, never-explained mistake when it turned the province over to a narrowly focused, unimaginative career bureaucrat credentialed only with an M.D. To be fair, this was probably too much for any one person, and Chief Medical Officer of Health Deena Hinshaw was placed in a near-impossible position. The consequences of this decision led to the removal of Premier Jason Kenney, and it is also why nearly the first thing his successor did was fire Hinshaw. That is also why the Manning Panel was commissioned.

So let us agree that the Panel’s recommendations to strengthen AEMA would improve emergency management the next time it is needed. That said, the Panel ignored the fact (or at least declined to state) that, had existing procedures been followed in 2020, things would have turned out much better.

Making Proper Use of Science – and Avoiding the Dictatorship of “Experts”

Chapter 3 deals with the place of “science” in public policy. It was self-evident to the Panel that science could help fashion sound public policy responses but could also be used for “political expedience and ideology.” Here the Panel was half-right. On the one hand it advanced a notion of “the scientific method” that dominated science classes a couple of generations ago. According to this account, a researcher develops testable hypotheses that can be modified in light of experimental results. Such was the philosophy of science that I was taught in grade 7 physics.

Its great defect is that it takes no account of what we now call conflicting paradigms or of what German Enlightenment-era philosopher Immanuel Kant called the power of judgment. A pandemic, for example, is not a “fact” but the product of somebody’s judgement. On the other hand, the Panel showed great clarity in asserting that “science is open to the consideration and investigation of alternative hypotheses…and is subject to some degree of uncertainty as an ever-present characteristic of scientific deliberations.” (Report, p. 24)

Before considering how it elaborated the problems of conflicting and alternative hypotheses and of uncertainty, one should note how opponents to both the Panel and UCP government responded to its commonsensical observations. According to NDP Leader Rachel Notley, they were “incredibly irresponsible.” Indeed, she asserted, “What you see is an invitation to normalize conspiracy theories and pseudo-science at the expense of evidence-based medical care.” Notley and CTV went on to attack Premier Smith for embracing “fringe views” – including those found in the October 2020 Great Barrington Declaration, a document written by three of the world’s most respected epidemiologists and subsequently endorsed by, at last count, 939,000 fellow scientists.

One of the Panel-endorsed “fringe views” was that “the number one priority” when a pandemic event is declared should be “protection of the most vulnerable,” (Report, p. 25) which is to say not everybody. Should a particular pandemic’s impact subsequently spread to other social, political and economic relationships, this priority may be modified and adjusted. That sounds eminently responsible, but the NDP wants everybody locked down right from the start.

Still the real question is: who would order the adjustments? The Panel’s answer is forthright, much to the consternation of scientific “experts”: “That a clear and conscious decision be made by elected officials as to the scope of the scientific advice to be sought and that this decision not be left entirely to the subject-matter agency, given that it may have a narrower perspective than that actually required.” (Report, p. 25, emphasis added) As Manning later said: “Political people have to be responsible for the overall direction and management because they’re the people that the public can hold accountable.”

Manning’s determination to avoid having a democracy become a dictatorship of “experts” also reflects a critical aspect of pandemic response: that there are issues far beyond medicine in play, and that the associated decisions are not scientific ones. Weighing risks, for example, is an exercise in logic (a branch of philosophy) and judgment, which depends on inductive reasoning. Assessing costs and benefits of various possible actions is economic in nature. And then, deciding just how much risk to take on and what costs to bear in the pursuit of benefits are questions of ethics. Such things should be undertaken by politicians because, if the people as a whole have a different view of such matters, they can vote in a different government (or, as happened in Alberta, select a decidedly different leader from the same party).

To the experts and their spokespersons, this was an anathema. Lorian Hardcastle, an associate professor in the University of Calgary’s law school and medical school, warned: “We would see ideologically driven response to a public health emergency” that would make it difficult “to keep people alive.” We can characterize the Hardcastle position, which was endorsed strongly during the pandemic by legacy media, the NDP, the “expert” class and the health care bureaucracy, as the “orthodox” doctrine. A health care emergency must be left to the so-called health care experts. Everyone else (including presidents, prime ministers and premiers) should defer to their expertise and do as they are told. The public “conversation” is entirely one-way.

In reality, however, public health does not involve just a single disease but all aspects of the health of a population. Thus, focussing on illness stemming from the SARS-CoV-2 virus was not enough even for so-called specialists because such a focus meant that, for instance, cancer screening was postponed so hospitals would be empty enough to accept the (incorrectly) projected tsunami of Covid-19 patients. Yet cancer is also part of public health, as was the collateral damage from the economic and social effects of lockdowns, school closures and social distancing, none of which the orthodox doctrine considers. Skeptics pointed out all of this throughout the pandemic – and were shouted down as granny-killers.

Alberta’s Review Panel recognized the inadequacy of orthodoxy by showing that what may have begun in early 2020 as a healthcare emergency quickly became something else with broader and more important impacts than a large number of sick persons (which only “experts” were allowed to count, anyhow). Such an unorthodox position, the Report notes, entails “a frank acknowledgement of uncertainties” which, if put into practice during an emergency, would make possible the reasonable shifting of priorities within the unfolding event, instead of “insisting prematurely on a single scientific narrative that may prove inaccurate or even wrong with the passage of time.” (Report, p. 26)

In short, the Panel argued for an acknowledgement of uncertainty (really, an attitude of humility) in the search for truth about Covid-19, whereas the orthodox “experts” preferred certainty regarding the “single scientific narrative” even at the cost of untruth (an unshakeable arrogance). This is not a new problem for political science. Historically, ideologists typically prefer certain untruth to uncertain truth, just as happened with “expert” advocates of the orthodox view regarding the Covid-19 event.

Before January 2020, that mass-population masking is ineffective was mainstream science. That lockdowns are vastly damaging was mainstream science. Mainstream science abhorred school closures. All of that went out the window. It would be more accurate to say that the pandemic response of spring 2020 consisted of ‘alternative’ science or ‘alternative’ thinking.

Here let us note that the Panel’s recurring use of the word “alternative” was unfortunate. Presumably the panellists regard it as a neutral descriptive term. But “alternative” has long been a euphemism for eccentric, dodgy or radical. “Alternative” health care is regarded as anti-medicine by many physicians. “Alternative” media are seen as buffoons if not malicious spreaders of conspiracy theories. The “alt-right” are of course white supremacists and neo-Nazis. And so on. Now, add “alternative” science to the list. The NDP and left-media, as we saw, pounced on this unforced error.

It’s too bad the Panel didn’t go with a word like “other” science, “all” science (per the Sun’s Gunter) or, more boldly, “actual” science. Before January 2020 mainstream science agreed that pandemic management should focus on the vulnerable and minimize economic and social disruption. All of that went out the window in the space of weeks. It would be more accurate to say that the pandemic response of spring 2020 consisted of “alternative” science or “alternative” thinking.

Assessing the Wreckage – and Doing Better Next TIme

The Final Report’s Chapter 4 deals with improving the regulatory structure used by the bureaucracy. It consists of detailed recommendations based on a commissioned paper by economist Gerard Lucyshyn, President of the Calgary-based Regulatory Research Institute (and available in Appendix 4), that only a public administration devotee could love or even understand. Chapter 9, on improving healthcare delivery, is similarly eye-glazing and peripheral to our main concern.

In between are chapters on school closures, government mandates such as on masking, lockdowns and vaccination, the effect of the Covid-19 event on Canadians’ civil liberties, rights and freedoms, and a chapter on other harms caused by the policy responses made by the Alberta and federal governments. Much of this discussion is entirely commonsensical and welcome. The lockdowns, school closures and all the rest did a great deal of harm, and the recommendations come as obvious to any skeptic.

Widely cited has been the Panel’s call for no more closure of schools “except under the most exceptional circumstances.” (Report, p. 47) Likewise, the Panel again criticizes “the insistence of governments at all levels with the compliance of most traditional media, that there was only one acceptable narrative explaining and justifying the response to the COVID-19 crisis, thereby disregarding and censoring other narratives.” This government-media coordination “violated freedom of thought, belief, opinion and expression in a variety of ways.” (Report, p. 60)

The sources of this “one acceptable narrative” position could be expanded from government, including the bureaucracy, to include the sources of so-called “expertise” dealing with emergencies, namely the medical and law schools, neither of which in fact could make any such claim regarding actual emergency management. That is, the hands of Alberta academia are far from clean.

It is also worth noting that, even after the Panel’s work, no formal pandemic impact assessment has been conducted. Such an investigation would include a discussion of harms to general health, personal and family relations, the exercise of rights and freedoms, and employment, income, businesses and supply chains, all of which, the Report states, “may well have adversely affected more Canadians than the virus itself.” (Report, p. 70) Until such a review is made, we won’t know the extent to which governments failed Albertans and Canadians. It could be that this will never be done.

Even so, it is worth emphasizing that this Report contains many sensible recommendations. The next steps are up to the UCP caucus and Alberta government.

Too Much Magnanimity?

The Panel declared it would not blame any of the persons who so spectacularly failed to protect the provincial population, but would focus only on future improvements (Report, pp. 26, 87). By avoiding “blame” – to the Panel clearly a pejorative – it also declined to assign responsibility for what now seems unquestionably a public policy disaster. Why?

There are two apparent reasons, neither of them wholly convincing. The first was the expectation that a “restrained” discussion that avoided the entire question of responsibility would make the Report more acceptable to those still clinging to the orthodox narrative. As we have seen from the vitriolic responses of Hardcastle, Notley and legacy media, such expectations remain unmet. It is conceivable, of course, that the report might persuade some middle-of-the-road Albertans who look askance at “anti-vaxxers” but are not directly invested in the orthodox narrative.

The second reason is even more unrealistic: “The Panel wishes to officially acknowledge the wisdom and experience incorporated in much of the existing legislation, the skills and good intentions that those responsible for its implementation bring to their tasks, and the evolution of the regulatory framework overall.” (Report, p. 40, emphasis added) Their attribution of honourable motives extends to school closures, which were “no doubt well-intended.” (Report, p. 45) Moreover, the Panel also declares “that the professional colleges of Alberta…do their best to serve the public interest, and that they endeavoured to do so under the stressful conditions created by the COVID-19 crisis.” (Report, p. 78)

With all due respect, such observations are naïve and inaccurate. In Canada’s COVID: The Story of a Pandemic Moral Panic, Marco Navarro-Génie and I provide both argument and evidence that those responsible for managing the Covid-19 event did so, as Redman also says, deliberately. Their objective was to increase bureaucratic control under the guise of a healthcare emergency. Anyone who looks at what the bureaucrats and their allies in academia and the media did and still maintains that they had good intentions and did their best did not endure the same event that most of us did.

To say that the Panel avoided naming those responsible for the public policy disaster is not to advocate that the culpable be put on trial for malfeasance. That is not how politics are usually conducted in democracies. But that does not mean that they should not be named. It is not sufficient, for example, to acknowledge that “mistakes were made” when students were kept out of school and bureaucratic control at all levels was ratcheted ever-tighter.

While it’s true that the Panel’s terms of reference all-but forbade it from conducting a retrospective evaluation of the decisions and events throughout the pandemic, nobody forced the panellists to absolve and even congratulate the architects and overseers of Alberta’s pandemic disaster. This is very hard to take. Redman, by contrast, openly asserts that Alberta’s pandemic management involved “gross negligence and criminal negligence.”

Better Protecting Albertans from Overreaching Government and Out-of-Control Professional Organizations

Another observation: professional organizations across Canada – including those for lawyers and doctors – have been mobilized to shut down dissenting narratives. The problem is, those narratives are still there, uncontested and undiscussed. They recall facts that may be fragile but are also stubborn, and they are not going away. Censorship, especially after an emergency has evaporated, never inspires confidence. Here there is great cause for optimism – and reason for congratulation – in the Panel’s work.

With Chapters 7 and 8 the Panel made maximal and imaginative use of its terms of reference. First it lays a solid conceptual foundation, backed by a commissioned research paper, evaluating the degree to which rights and liberties expected in normal circumstances may be restricted during emergencies. It then finds that the management of Covid-19 unleashed sweeping violations of rights and effectively deprived people and organizations of normal avenues of civil recourse. As the paper states, “In most cases, there was a presumption on the part of the courts that the governments were justified in responding as they had to the COVID-19 emergency – a presumption that the applicants could not overcome.” (Report, p. 62)

Accordingly, the Final Report recommends additions or amendments to a host of laws, including the Alberta Emergency Management ActEmployment Standards CodeHealth Professions Act, Administrative Procedures and Jurisdiction Act, Judicature Act and even the Alberta Bill of Rights. The recommended changes are significant and numerous (a dozen to the Bill of Rights alone); key examples will need to suffice.

First, the definition of what constitutes an “emergency” would be significantly tightened. The government would be required to “present its case for limiting a right or freedom expeditiously” in an emergency. Citizens could more easily seek stays of government actions that violate rights and freedoms. “[T]he right to personal autonomy and integrity” would be added to Alberta’s Bill of Rights, as would explicit guarantees to informed consent and freedom from enforced medical treatment. Discrimination based on medical status or history (e.g., opposing vaccines) would be forbidden. The right to earn a living would be enshrined. Employees declining to comply with emergency mandates could still be suspended, but no longer permanently fired. Employer vaccine mandates would become an absolute last resort after all other options were exhausted.

There is a whole section entitled “Providing Explicit Protection for Freedom of Expression, Academic Freedom and Professional Freedom.” (Report, p. 69) For example, the Bill of Rights would be amended to add, “The right of every regulated professional to engage without doctrinal, ideological or moral constraint, such as institutional censorship, in the exercise of their profession, and in free enquiry and public debate.” An identically worded amendment would cover academic institutions.

The following chapter calls upon professional colleges to be directed to revisit and tighten their definitions of “unprofessional conduct,” to recognize formally their member’s rights to freedom of expression “including on matters related to public health emergencies,” (p. 79) to make it easier for members to defend themselves against complaints and to make it easier for members to seek judicial review of disciplinary decisions against them. And, just in case Alberta’s various professional colleges refuse to implement these measures in good faith, the report (p. 81) calls for a provision enabling the Alberta government to rewrite their governing legislation.

The Panel, in short, wants to see the Alberta government enshrine strong and overlapping protections for freedom of expression, individual decision-making and independent judgment not only in private life but professional settings. Never again should doctors, nurses, any other professionals or academics be subject to retaliation, abuse or termination for expressing views contrary to the government’s or their organization’s dominant narrative – as thousands have been in Alberta and across Canada. Many such cases remain ongoing, and similar battles are raging in other professional organizations.

The Panel’s decision to reopen the Alberta Bill of Rights seems especially clever. If the UCP government has the fortitude to make the required changes, these will be much harder to undo in future than amending an ordinary and largely obscure administrative law. The left, after all, virtually worships human rights law. Further, the courts would need to take notice of rights enshrined in a law declared to be the province’s foremost law, superseding all others.

‘The public health officials, politicians, and journalists who cannot admit the failure of their lockdowns and who helped destroy the basic principles of evidence-based science want to ensure that no honest assessment is ever made.’ The same sorts of people in Alberta would very much have preferred that nothing like Alberta’s Review Panel was ever launched.

Even better, the Panel appears to have worded its proposed legislative amendments broadly enough to protect dissident professionals in all fields whose governing organizations may be weaponizing woke ideology (like law societies are now doing). If duly acted upon, this could lay the foundation for a broad counterattack by the UCP government, principled professionals and concerned Albertans on the woke-left’s takeover and degradation of professional organizations. The possibilities are little short of breathtaking.

The Real Work is Only Beginning

In a recent article Jay Bhattacharya, professor of medicine, economics and health research at Stanford University, and Martin Kulldorff, professor of medicine at Harvard University (currently on leave), two of the authors of the Great Barrington Declaration, lamented this aspect of America’s post-pandemic situation: “The public health officials, politicians, and journalists who cannot admit the failure of their lockdowns and who helped destroy the basic principles of evidence-based science want to ensure that no honest assessment is ever made.”

The same sorts of people in Alberta would very much have preferred that nothing like Alberta’s Review Panel was ever launched. And while we have noted the shortcomings of this process as we see them, the Panel and its Final Report must be seen as great victories for open inquiry and the search for truth. The recommendations and key statements make it amply clear what the panellists think of lockdowns, school closures, arbitrary government by decree and concentration of power in hands that are clearly inexpert in emergency management.

In the same article, Bhattacharya and Kulldorff also draw attention to a proposal by the World Health Organization (WHO), which no sooner declared the Covid-19 pandemic officially over than it announced preparations for the next one. The WHO is pushing for an international treaty that would compel signatory nations to follow WHO directions in future pandemics (which only the WHO could declare). This is not a conspiracy theory; it is an open declaration of intent. Readers of the Manning Panel’s Final Report will discover that this sort of thing would be a very bad idea.

It is not, therefore, faint praise to say that the Final Report of Alberta’s Public Health Emergencies Governance Review Panel is among the best analyses and discussions of the Covid-19 event available to the public – anywhere in the world. It is also no exaggeration to say that the real work of avoiding a repeat of 2020 is only beginning.

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Alberta

Free Alberta Strategy petition demanding PM Trudeau fire Steven Guilbeault passes 13,000 signatures

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News release from Free Alberta Strategy 

Are you tired of watching elected officials flout the law and disregard public concerns with impunity?

Are you frustrated by a federal government that prioritizes arrogance over accountability?

If so, you’re not alone.

Over 13,000 people have signed our petition calling on Justin Trudeau to fire Steven Guilbeault.

Once one of Greenpeace’s most disruptive forces, Guilbeault has spent enough time in an orange jumpsuit to build up a reputation for deliberately ignoring both law enforcement and the courts.

Since then, his career has been marked by a troubling disregard for both legal boundaries and public sentiment.

In 2001, Guilbeault was found guilty of mischief for scaling the CN Tower in Toronto and displaying a banner.

He received a sentence of one year’s probation, was mandated to complete 100 hours of community service in Montreal, and was ordered to pay $1,000 in restitution.

The incident incurred approximately $50,000 in costs for the tower operators.

Shortly thereafter, Guilbeault orchestrated another audacious act, leading a Greenpeace team in a demonstration at the Calgary residence of then Alberta Premier Ralph Klein and his wife, Colleen.

They erected a banner, positioned ladders against the house, and ascended to the roof to install a solar panel.

The intrusion deeply unsettled Colleen Klein, who was alone at the time and feared a home invasion – she resorted to grabbing a broom for defense.

Despite his controversial background, Justin Trudeau’s decision to appoint Guilbeault as Minister of Environment and Climate Change raised eyebrows and elicited criticism.

Jason Kenney, then premier of Alberta, accurately predicted the consequences of Guilbeault assuming a significant role in Justin Trudeau’s cabinet.

“His own personal background and track record on these issues suggests someone who is more an absolutist than a pragmatist when it comes to finding solutions,” Kenney said.

It’s perhaps no surprise then that Guilbeault’s response to legal setbacks in his political career, such as the Supreme Court’s ruling on the unconstitutionality of his Impact Assessment Act, has been dismissive, indicating a stubborn adherence to his own agenda rather than a willingness to heed judicial guidance.

Instead of accepting that he was wrong and repealing the law, Guilbeault wants to pass minor amendments and pretend like the Supreme Court ruling never happened.

Worse, the amendments – buried 552 pages into a 686-page budget implementation bill – don’t fix the problem.

Guilbeault still has the power to control projects that fall under provincial jurisdiction.

Consequently, tensions between the federal and provincial governments have escalated, with Alberta poised to immediately challenge the amended legislation in court once again.

This charade is getting old.

This pattern of defiance and disregard for legal constraints has become wearisome, eroding public trust in the integrity of federal institutions.

The rotation of headlines proclaiming federal overreach and constitutional breaches underscores a troubling trend within the governing party, where arrogance appears to have supplanted prudent governance.

Guilbeault, with his checkered past and continued ignorance of the law since becoming Minister, are crippling public confidence.

A few months ago, we launched a petition calling on Justin Trudeau to see the light, and fire his most controversial Minister.

Since then, things have only gotten worse.

If you agree, and think Guilbeault should be fired, please sign our petition today:

 

 

Then, send this petition to your friends, family, and every Albertan so that they can sign too!

Regards,

The Free Alberta Strategy Team

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Alberta

Fortis et Liber: Alberta’s Future in the Canadian Federation

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From the C2C Journal

By Barry Cooper, professor of political science, University of Calgary

Canada’s western lands, wrote one prominent academic, became provinces “in the Roman sense” – acquired possessions that, once vanquished, were there to be exploited. Laurentian Canada regarded the hinterlands as existing primarily to serve the interests of the heartland. And the current holders of office in Ottawa often behave as if the Constitution’s federal-provincial distribution of powers is at best advisory, if it needs to be acknowledged at all. Reviewing this history, Barry Cooper places Alberta’s widely criticized Sovereignty Act in the context of the Prairie provinces’ long struggle for due constitutional recognition and the political equality of their citizens. Canada is a federation, notes Cooper. Provinces do have rights. Constitutions do mean something. And when they are no longer working, they can be changed.

Mahatma Ghandhi was once allegedly asked what he thought of Western civilization. “I think it would be a good idea,” he is said to have replied. One could answer the same about Canadian federalism: it would be a good idea.

Not too long ago I was interviewed by a CBC journalist from Toronto regarding the Alberta Sovereignty within a United Canada Act, which upon its introduction by Premier Danielle Smith’s UCP government in November 2022 was attacked as needlessly provocative, deeply unconstitutional, legally unsustainable and shamelessly populist. “What is your vision of Canada?” the CBC reporter wanted to know. I told her the following: that Canada might be a federation. The implication was obvious: Canada is not a federation at present and, arguably, never has been. Many Canadians would find such a remark not arguable but outrageous. So here is my argument. My focus is on the Prairie West, not Laurentian Canada, the Maritimes, Newfoundland or B.C., each of which retains the story of its connection to Canada.

For 200 years Rupert’s Land (its flag shown on top left) along with the Northwest and Northeast Territories were the exclusive commercial domain of the Hudson’s Bay Company (HBC), granted by the British Crown; Great Britian officially transferred these vast lands to the Crown in Right of Canada in 1870. (Source of map: Golbez, licensed under CC BY 2.5)

Before Canada became a country in 1867, the vast tracts administered by the Hudson’s Bay Company – Rupert’s Land and the Northwest and Northeast Territories, including what became Labrador – were governed from London under Imperial orders and statutes. In law, Rupert’s Land was a plantation – a cold-weather plantation, to be sure, but a plantation nevertheless. The transfer of Company lands from the Imperial Crown to the Crown in Right of Canada took place by means of an Imperial Order-in-Council (passed under appropriate statutory authority) on July 15, 1870.

This all-but-forgotten history is important for understanding our present discontents. Not only was Rupert’s Land a territory politically distinct from the colony of Canada, but the manner of its acquisition by Canada underlined its distinctiveness. In 1868, a year after Confederation, the British Parliament passed the Rupert’s Land Act, specifying that the Hudson’s Bay Company would surrender its “lands, rights, privileges, liberties, franchises, powers and authorities” under certain terms and conditions to be negotiated by the Company, the Colonial Office and the Canadian government.

The negotiations were protracted and the specification of the terms and conditions took years of haggling among all the parties, some of which erupted into lawsuits. In the background there remained the unacknowledged claims of the inhabitants of the Red River Settlement (in what later became the Province of Manitoba), who were decidedly cool about the prospect of being incorporated into Canada. Neither they – whether of British, French, Métis, “country-born” or Indian stock – nor the other natives of Rupert’s Land were consulted about their new status.

Obscure but legally important: Canada is often said to have “purchased” Rupert’s Land from the Hudson’s Bay Company, but Canada did not actually pay for the land, only for the company’s capital improvements such as Lower Fort Garry in the Rural Municipality of St. Andrews (aka the Stone Fort, top), Fort Edmonton (middle), depicted here after construction of Alberta’s Legislative Assembly building, and the Hudson’s Bay Brigade Trail (bottom). (Sources of images: (top) Gordon Goldsborough, 2014-0038; (middle) Peel’s Prairie Provinces)

Rupert’s Land was not, therefore, on the market the way Alaska had been in the 1860s, when it was purchased from Czarist Russia by the United States for US$7.2 million (or 2 cents per acre), a transaction that took place in March 1867 through a signed treaty. True, many Hudson’s Bay Company stockholders similarly wished to sell Rupert’s Land to the highest bidder and hoped to begin the auction with an offer from China. Russia and the United States were also expected to join the bidding, along with Canada.

Some Canadian politicians spoke of the subsequent Canadian “purchase” of Rupert’s Land; some Canadian historians still do. But the transfer of Company lands to Canada was not a real estate deal. The Imperial Crown simply transferred its authority to the Crown in Right of Canada. Canada “indemnified” – i.e., bought off – the Hudson’s Bay Company not for the territory of Rupert’s Land but for the several capital improvements made during the previous 230 years. These included such structures as the Stone Fort at Red River and the timber fort at Edmonton, but also far-flung portage trails and the like.

Looked at from the perspective of Laurentian Canadian history, Rupert’s Land was a gift to the new Confederation from the Imperial Crown, the missing link between Canada and the colony of British Columbia that inspired the empire-builders of the Macdonald-Cartier coalition to extend the new eastern political entity to the Pacific Ocean, to build the Canadian Pacific Railway and to incorporate the province of B.C. within Canada. As for the Company lands to the east of Hudson Bay, very little commercial viability was expected. This was fur territory peopled by Indigenous trappers and barbaric traders as it had been for centuries. Canada later gave Ontario and Quebec additional territory carved from those former Company lands.

Canada expanded in a mode quite different from the United States. Unlike the generally well-planned and logical formation of new states from territories – a process meant to reflect an area’s maturation from thinly populated, intermittently governed and often lawless frontier to incipient civilization – there was nothing in Canada akin to the American Northwest Ordinance or to its successor laws. A key difference was that a newly formed U.S. state gained the same rights and privileges as other states, an important element of real federalism.

Here one should note that there are two elements essential to any federation. The first is a constitutionally defined division of responsibility between the central government and the constituent sub-national jurisdictions – provinces in Canada, states in the U.S. In a well-run federation each order of government stays in its constitutionally defined lane. The second element is that representation in the federal government combines numerical equality or “representation by population” with equal constitutional standing and privileges for all component jurisdictions.

“Enter the Union on an equal basis with existing states”: In contrast to Canada, the U.S. Northwest Ordinance of 1787 provided a formal and transparent mechanism by which newly settled territories could graduate to statehood if they met certain conditions – gaining the same rights and privileges as the original 13 states.

This second element is why the Americans combined in Congress a House of Representatives based on the principle of one person, one vote, with a Senate where each state – whatever its population – would send two senators to Washington, D.C. Because Canada does not provide equal provincial representation in the Canadian Senate (and for a few additional reasons) it has been called by political scientists a “quasi-federal state”. This particular anomaly (or defect) lay behind the attempt starting in the 1970s to establish a Senate that would have an equal number of Senators from each province, who would be elected and whose resulting legitimacy would allow the Senate to become effective in defending the rights of the provinces – the “Triple-E” Senate.

The second policy area where Canada’s expansion westward differed profoundly from America’s was the absence of consultation with the inhabitants of the newly acquired Canadian territories. In the U.S. this always entailed serious two-way discussions; ambitious pioneers would sometimes move out to a territory with the intention of taking part in its development and participating in its graduation to statehood.

In Canada, it was precisely the neglect and lack of communication that eventually led future rebel leader Louis Riel and his compatriot John Bruce to argue that the Western inhabitants of the Hudson’s Bay Company lands had been “abandoned” by the Imperial Crown. The Red River Settlement existed after the 1870 transfer, as they described it, in something akin to a Hobbesian state of nature. Consequently, they declared, the inhabitants of all the former western Company lands “refuse to recognise the authority of Canada,” which was seeking to coerce these subjects of the British Empire by imposing “a despotic form of government” on them.

“Our lives our fortunes and our sacred honour”: Métis leaders Louis Riel (top left) and John Bruce (top right) saw the 1870 transfer of Rubert’s Land to Canada as an act of “abandonment” by the British Crown; to protect the interests of the Red River Settlement (bottom), they “refus[ed] to recognise the authority of Canada.” (Sources: (top left photo) Library and Archives Canada, C-018082; (top right photo) Manitoba Historical Society Archives; (bottom map) Manitoba’s Red River Settlement, by Douglas Sprague and Ronald Frye)

Much like the British subjects a century earlier who became signatories of the then-colonial Declaration of Independence in 1776, the Red River authors declared “to the world” and to Canada in particular that they had established a Provisional Government and, closely following the final paragraph of U.S. Founding Father and future President Thomas Jefferson’s text, “mutually pledge ourselves on oath our lives our fortunes and our sacred honour to each other.” (Original non-punctuation)

Although this statement might sound hopelessly grandiloquent to modern-day ears, their claims were not without a political basis. As my friend and U of C colleague Tom Flanagan pointed out in his 1978 essay “Political Theory of the Red River Resistance: The Declaration of December 8, 1869”, the Declaration of the People of Rupert’s Land and the North West certainly rested on highly questionable legal grounds. To begin with, as noted, the land transfer was an intra-Imperial action. It was not the act of a sovereign power called the Hudson’s Bay Company abandoning the inhabitants of “its” territory and turning them over to another and alien sovereign power, Canada. The Company was not at all sovereign, and Canada was not fully sovereign.

The legal issue was of secondary importance, however, to the political significance of the Red River inhabitants’ response to the actions of Canada, starting with the Declaration and including not one but two open rebellions, the second of which was a serious armed conflict in which Canada’s control hung in the balance. In that second one, in 1885, Laurentian Canada mobilized and commanded Imperial military assets to impose its law on the rebellious Northwest. To the inhabitants, these actions, even if by then they themselves opposed Riel, looked like a continuation of the style of rule from London they had previously endured by way of the Company. That is, rule of the Northwest by “imperial” Canada was of a piece with British Imperial rule prior to 1870.

This was why James Mallory, a distinguished 20th century McGill University political scientist, in his 1954 book Social Credit and the Federal Power in Canada referred to the Prairie provinces as “provinces in the Roman sense”. Whatever did he mean? A Roman provincia was distinguished by two major attributes. First it was a locale where imperium, administrative rule, was exercised by Rome or an agent of Rome. Second, unlike the inhabitants of Italy, “provinces” paid tribute to the capital. Moreover, the etymology pro-vincere (Latin for something that was defeated or vanquished) suggests the provinciae were conquered territories. Aside from their military and geopolitical significance, Roman provinces were there to be taxed and to enrich their Roman rulers.

The analogies to 19th and 20th century Canada are clear. Ottawa – as pitiful a town as it was – acted as a new Rome on the Rideau. The territories (and soon-to-be second-class provinces) were acquired additions; they existed to strengthen and benefit Laurentian Canada by analogy with Roman Italy, and to enrich its leading citizens. And the provincials were expected to behave themselves. To this day, the embarrassment of 1885 has not been forgotten by Laurentian administrators. Of course, the Canadian punishment for rebellion was not Roman in its ferocity, although the result for Riel was equally final.

“Provinces in the Roman sense”: According to political scientist James Mallory, Canada’s Prairie provinces were akin to “provinciae” in ancient Rome – conquered lands whose inhabitants were not citizens and who existed to serve the interests of the Imperial Capital and the Italian heartland. Shown, the fall of Macedonia in 168 BC depicted in The Triumph of Aemilius Paulus by Carle Vernet, 1789. (Source of painting: The Metropolitan Museum of Art)

Northrop Frye once remarked that if history is a narrative of what happened, myth tells the story of what happens all the time. In that sense, myth is a major constituent of what we now call political culture. The Red River resistance, however comic and ineffectual it appeared to later Laurentian historians, became part of a Western myth, the most recent manifestation of which was the Freedom Convoy of 2022. And, incidentally, Laurentian historians were a self-described “school” centred at the University of Toronto. The most famous of them was the first modern biographer of Sir John A. Macdonald, Donald Creighton. His thesis, The Commercial Empire of the St. Lawrence, published by Yale University Press in 1937, effectively founded the Laurentian school. The second edition, published by the U of T Press, bore a franker title: The Empire of the St. Lawrence. That is the origin of the term “Laurentian Canada”.

Between the Red River resistance and the truckers’ convoy, over 150 years apart, came Prime Minister Macdonald’s grossly misnamed “National Policy”, which subordinated the economic vitality of Prairie agriculture to Laurentian industrial commerce. (To oversimplify somewhat, high import tariffs protected eastern industries while making imported goods critical to the Prairies’ economic development needlessly expensive, in turn making export-dependent Prairie farmers less economically competitive; the National Policy amounted to simple exploitation of the West.) When Alberta and Saskatchewan became Roman-style provinces in 1905, the Dominion Lands Policy saw to it that the major source of revenue from land sales and fees remained reserved “for the purposes of the Dominion”, not them.

The Western political response continued to reverberate for more than a century. Several political parties and social movements formed in opposition to Laurentian policies: the Progressives, Social Credit, the Social Gospel, the CCF, and later the Reform Party and the Canadian Alliance. The fact is, Westerners have typically wanted to make Canada work as a genuine federation. They were neither revolutionaries nor separatists. Like their cousins in the American West, they sought equal rights as citizens and equal representation for Western, especially Prairie, provinces.

In 1905 the Dominion of Canada carved the new provinces of Alberta and Saskatchewan out of portions of the Northwest Territories; the newcomers were treated as distinctly second-class in comparison to the original provinces, among other things only gaining full control over their lands and natural resources in 1930. (Sources of photos (clockwise, starting top-left): Calgary Herald Archives; Provincial Archives of Saskatchewan R-A4110-2; Glenbow Archives, na-1496-2; Western Development Museum)

And while all of these movements mounted often-spirited resistance to Laurentian political and economic controls, they also seemed to accept the political institutions of imperial Canada. Remember the slogan of the Reform Party in 1987? “The West wants in.” Why? To increase the likelihood of self-government, the very desire for which was dismissed by Laurentians as unintelligible: were these pesky Westerners not already citizens of an already self-governing country? They must be alienated, poor things, and in need of the ministrations of an alienist.

David A. Smith, another distinguished political scientist, who taught for many years at the University of Saskatchewan, provided a less condescending answer than the conventional dismissal by Laurentians in his 1969 essay “A Comparison of Prairie Political Movements in Saskatchewan and Alberta”. Westerners, Smith wrote, had tried working within the dominant political parties, then through so-called “third parties” that attempted to persuade the dominant parties, then through balance-of-power strategies. “No other area of the country,” Smith said, “has experimented with so many partisan alternatives and had so little apparent satisfaction from the results.”

A third distinguished political scientist, Alan Cairns, once asked: why were the Social Credit and the NDP called “third parties?” In B.C where Cairns taught, these parties were the government, the major players in a vibrant two-party system. The “third parties” were the Liberals and Conservatives. One might say the same thing about Social Credit and the Cooperative Commonwealth Federation (the future NDP) on the Prairies. That is, the political articulation of the Western provinces is distinct from that of Laurentian Canada.

The Prairie provinces continued to be subjected to destructive Laurentian policies throughout the 20th century, such as prolongation of the Canadian Wheat Board, official bilingualism and the National Energy Program, implemented by Pierre Trudeau in 1981 (shown on bottom left, to the right of Alberta premier Peter Lougheed in the centre). Depicted on bottom right, oil sands facility at Mildred Lake. (Sources of photos: (top left) Canadian Government Motion Picture Bureau/Library and Archives Canada/C-064834; (bottom left) The Canadian Press/Dave Buston; (bottom right) The Canadian Press)

After Canada’s first half-century or so, after the Prairie provinces finally in 1930 gained control over their natural resources (as Canada’s “founding” provinces had had from the start), there followed in the post-Second World War era further nonsensical Laurentian policies: the needless prolongation of the Canadian Wheat Board (whose command-and-control methods evoked the late Roman Emperor Diocletian’s ludicrous economic decrees), the definition of Canada as a bilingual country (the major consequence of which was to ensure that most Westerners did not find a professional career in Ottawa attractive), and of course the unforgettable National Energy Program, seen by many Albertans as the 20th century successor to the National Policy.

Then, the 1982 Constitution Act gave the Supreme Court of Canada effective control of legal aspects of the Constitution. And, like the first Supreme Court of Canada, it has acted largely as a centralizing creature of Laurentian Canada. One must be remarkably naïve not to think that Prime Minister Pierre Trudeau had something like this in mind when he began campaigning to “patriate” the Constitution nearly two generations ago. In any event, a major consequence of the 1982 Act was to undermine the institutions of federalism, particularly provincial responsibility for natural resources and the environment, which had been sustained by the jurisprudence of Britain’s Judicial Committee of the Privy Council in earlier times and largely respected after 1949 when judicial appeals to the Law Lords were abolished.

Today almost all the malign aspects of Canada’s Constitution are encapsulated in the federal equalization program. As Rob Anderson, Derek From and I point out in the Free Alberta Strategy (there’s also good material in this C2C essay), the Government of Canada has for decades expropriated vast amounts of fungible wealth from the taxpayers of the Prairie West and especially from Albertans – amounting to literally hundreds of billions of dollars. Moreover, the latest assault by the Justin Trudeau government has combined this traditional wealth removal with a novel attack on the source of provincial prosperity, the oil and natural gas industry in general and the oil sands in particular. For many Albertans, Ottawa has definitively breached the principles of the federal Constitution.

Now what?

First, recall the historical importance of federalism. In those remote days prior to the Canadian Charter of Rights and Freedoms, the focus of Canadian constitutional politics was on the balances struck over the years between responsibilities under s. 92 of what was then known as the British North America (BNA) Act that belonged chiefly to the provinces – such as transportation, regulation of businesses and professions, creation and oversight of municipalities, education, courts of law, health care and natural resources – and those given to the Dominion government under s. 91 – such as national defence, foreign relations, the criminal law, relations with Indians and international trade.

Of all the theorists of federalism to whom I was introduced as an undergraduate, William S. Livingston has remained my favourite. His Federalism and Constitutional Change was published by Oxford in 1956. It was preceded by an article, “A Note on the Nature of Federalism”, that established his main arguments. In my opinion they have not been superseded though they may have been forgotten.

“It’s not like Ottawa is a national government”: The Alberta Sovereignty within a United Canada Act, passed in late 2022 by the UCP government of Premier Danielle Smith, pictured, aims to strengthen the province’s ability to limit unconstitutional intrusions of federal policy and law into areas of provincial jurisdiction, thereby reaffirming that Canada is a federal state. (Source of photo: The Canadian Press/Jason Franson)

This is the context within which Premier Smith’s remark is to be understood when she said on third reading of Bill 1, later the Sovereignty Act, “It’s not like Ottawa is a national government.” (Emphasis added)

Social and political realities change: formerly poor jurisdictions such as Alberta grow wealthy; formerly rich jurisdictions such as the Maritimes grow poor. Political institutions eventually display the characteristic of serving purposes for which they were not initially designed. Just as federal societies change, federal institutions are required to change as well in response to new realities. If federal institutions are incapable of responding to changes in federal societies, the result is political dissolution, which is to say, independence of a former constituent jurisdiction. That was the prospect posed by Quebec in the 1970s after its “Quiet Revolution”. Quebec separatism spooked Canada sufficiently to change the effective federal Constitution to reflect the new configuration of the federal society.

This is not to say that legal federalism, which defines the primary areas of jurisdiction of Ottawa and the provinces, is unimportant. Sections 91 and 92 of the BNA Act are still in force and effect. Moreover, reasserting and defending the constitutional validity of the division of powers is the primary purpose behind Alberta’s Sovereignty Act.

Although attacked by critics, Alberta’s Sovereignty Act has received strong popular support for challenging the Justin Trudeau government’s constant intrusions into areas of provincial constitutional jurisdiction; the author points out that the Constitution does not require provinces to enforce federal laws, and that the Supreme Court of Canada has confirmed this. Shown, supporters of the Sovereignty Act outside the Alberta legislature, December 2022. (Source of photo: CityNews/Laura Krause)

Its central provision regarding federalism enables the provincial government to refuse to enforce federal laws. The decision not to do so would be based on the judgment of the legislature that the federal law in question was illegal, unconstitutional, harmful to Albertans or contrary to Alberta’s interests, based primarily on the text of ss. 91 and 92 and how those provisions were put into practice over Canada’s first century – but which recent federal governments have successively and, in the Justin Trudeau government’s case, systematically undermined or overridden as if they weren’t even there.

What is novel about this provision is that it would require Canada to take Alberta to court and there to prove its case, not the other way around as is the current practice. Nowadays when Ottawa first intrudes upon or overrides provincial jurisdiction and puts its unconstitutional policy or law into practice, it forces one or more provinces to try to stop it – even as the damage is already being done and the new policy threatens to become institutionalized through force of habit.

Equally important, there is no provision in the Constitution requiring any province to administer or enforce federal law. (Please see also this article and this article for supporting evidence of that contention.) The reason is obvious: Canada remains in law and reality a federation, not a unitary regime where provinces are simply agents of Ottawa the way Alberta municipalities are creatures of the provincial government. One reason for the political support that the Sovereignty Act has received are the objections to the arrogant default assumption of the Trudeau government that it is (except for Quebec) a “national government” – precisely what Danielle Smith denied. That is why it was originally and for a long time thereafter referred to as the Dominion government and today is called the federal government, which implies a government with limited and clearly enumerated constitutional scope and powers.

Another way of indicating the issue of connecting the reality of a federal society to a federal constitution is found in a remark of the late U.S. conservative journalist Andrew Breitbart, who famously observed that “politics is downstream from culture.” This is a snappy version of Frye’s remark regarding myth or what Livingston meant by the primacy of society. But what is downstream from politics? The answer is simple: the law of the Constitution.

Ask yourself: where did the BNA Act come from back in 1867? Or the 1982 Constitution Act? They came from political negotiations and political deal-making in response to political ideas and demands generated by the changing realities of a federal Canadian society. In that context, the 1982 Constitution Act looks like a legal response to the social changes of the “Quiet Revolution”. That is also where Alberta’s Sovereignty Act came from. Indeed, it can be seen as the current expression of a not-so-quiet Alberta revolution initiated by Ralph Klein, premier of Alberta from 1992 to 2006.

Those who say the Constitution is set in stone and can never be re-opened are legal fundamentalists and they are wrong. All constitutional documents, so revered by lawyers, especially the ermine-clad lawyers on the bench of the Supreme Court of Canada, were all downstream from political deals that reflected changing social, economic, cultural, etc. realities. Of course the Constitution can be re-opened! That is one of the long-range purposes of the Sovereignty Act.

“Clear majority on a clear question”: Two years after the 1998 Quebec Secession Reference case before the Supreme Court of Canada, the Liberal government of Jean Chrétien (on bottom, leaning forward) introduced the Clarity Act, establishing the conditions under which Canadian provinces may be allowed to begin the process of secession. The author considers this another act violating the concept of federalism, with Ottawa unilaterally calling the shots and placing provinces in a subordinate position. (Sources of photos: (top) @Law Scribes/X; (bottom) CP Photo/Fred Chartrand)

If Laurentian Canadians and lawyers nearly everywhere say that the Sovereignty Act is unconstitutional, I agree but with the following qualification: legal unconstitutionality is simply another way of saying it’s time to change the law of the Constitution. That is what Bruce and Riel had in mind so many years ago. The law of the Constitution may work well even today for Laurentians and for Ottawa bureaucrats, but they have become what English historian and philosopher Arnold Toynbee called a “dominant” rather than a “creative” minority. More to the point, if the law of the Constitution does not work for Albertans and for others in the Prairie West, why should it be respected? All the strategies listed by David Smith have not made a dent in the adamantine attitudes of Laurentian Canada. In their collective imperial mind, in their political culture, the Prairie West remains a colony. The Sovereignty Act aims to bring an end to a very unpleasant history.

And then there is the Clarity Act to consider. In the 1998 Quebec Secession Reference case brought by the Government of Canada, the Supreme Court of Canada required that any provincial referendum on secession receive a clear majority on a clear question in order to be valid and so to trigger mandatory negotiations. The Court did not define what either a clear majority or a clear question might be.

Two years later the Jean Chrétien government (under great pressure from the Reform Party) introduced what became the Clarity Act, according to which the Parliament of Canada would determine before any provincial referendum on potential secession whether the question was clear enough and, after the vote, whether the degree of support was sufficient to require negotiation on the terms of secession. If a referendum met those two criteria (according to Parliament), then a constitutional amendment requiring the consent of Parliament and the provinces would also have to be passed.

A few years later, former Parti Quebecois leader and Premier Jacques Parizeau told CTV News that the Clarity Act “meant nothing.” One reason for his remark was not just that Parliament had stacked the deck but that Quebec had passed its own law, one which emphasized the right of Quebec citizens to self-determination. Now, if push came to shove, one might expect Alberta to do the same.

The political distance dividing Alberta’s Sovereignty Act from Ottawa’s Clarity Act is huge. The one contemplates a restoration of federalism, the other an end to it. If Alberta is to remain strong and free, fortis et liber, as indicated on its coat of arms, Laurentians will have to change their attitude and their political culture. That is the challenge of political federalism today. Acknowledging that reality is the condition for making Canada a genuine federation in law. If not, it will take the more desperate remedy outlined in the Clarity Act to induce some sobriety into Laurentian consciousness.

Barry Cooper is a professor of political science at the University of Calgary. His latest books are Paleolithic Politics (2020) and, with Marco Navarro-Génie, COVID-19: The Story of a Pandemic Moral Panic (2020).

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