Alberta Newfies

Danielle Smith, Grievances, and the Constitution

Alberta Premier Danielle Smith (Image: Hill Times)

Patriotism is the last refuge of a scoundrel. (Samuel Johnson)

As far as premiers are concerned, and irrespective of their individual political party, being prime minister means your job is to be:

1. the scapegoat for everything wrong with the country; and

2. the source of endless cash to be transferred to the premiers' bank accounts without strings and with as little back-talk as possible. (Ashlee Morose)

Canada is not the most decentralized federal state in the world.

The United States was and in many respects still holds that distinction, even after a bloody civil war, the cause of which remains an issue that deeply divides Americans today. The causes of the civil war - racism and state’s rights - are as alive today as they were in 1860.

On paper, Canada is constitutionally a reasonably balanced state but one in which the federal government holds the stronger role, by design. The provincial Executive Power derives from the federal Executive Power. The Canadian federal government is responsible for the Criminal Code, something that in the United States is entirely controlled at the state level. The Canadian federal government has the so-called reserve power, which is all the things not specifically list in section 92, the part of the Constitution Act that lists specifically and thereby limits what provincial government may do. All that is in deliberate contrast to the States.

The description of the federal parliament’s powers in Canada is quite different from the provincial one:

It shall be lawful for the [King], by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. [Capitalization in original]

Parliament means the King, the Senate, and the House of Commons, by the way. They have the national - the whole country’s interest. The provinces don’t.

The Constitution Act also limits the ways that provinces may raise money to provide services. The federal government has no such limitation.

American experience, especially the experience of the Civil War, affected the Canadian Constitution Act. The people who wrote the Canadian constitution understood what had happened in the United States and deliberately chose to do some things differently. They also understood the lure of the Americans and historic patterns of trade north and south, such as along the eastern seaboard. That’s why they included a clause that reads simply enough: “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.”

Support Bond Papers. Become a paying subscriber.

Canada is not supposed to be one of the most decentralized countries in the world but the provincial governments, supported by federal politicians and by the courts m, push hard to make it decentralized, like the United States. They do it intentionally. Leave it to Canada to design a written constitution that says one thing but in which all the governments and the courts and citizens endorse something else.

Take that clause on interprovincial free trade as a good example. Since 1867, every province in Canada has ignored it and voters, the federal government, and the courts endorse that violation of the plain language of the Constitution Act. A fellow named Comeau fought his conviction under the New Brunswick liquor control law when the Mounties charged him for importing beer and liquor from Quebec into New Brunswick. In 2018, the Supreme Court of Canada overturned a lower court decision and gave a big thumbs up to the New Brunswick liquor control law even though - on the face of it - the law violated the plain meaning of section 121 of the Constitution Act, quoted above.

The Supremes went to some tortured lengths to justify themselves. “With respect to the text of s. 121, the phrase “admitted free” is ambiguous,” the Court wrote in a unanimous decision, “and falls to be interpreted on the basis of the historical, legislative and constitutional contexts. To achieve economic union, the framers of the Constitution agreed that individual provinces needed to relinquish their tariff powers. The historical context supports the view that, at a minimum, s. 121 prohibits the imposition of charges on goods crossing provincial boundaries — tariffs and tariff‑like measures. But the historical evidence nowhere suggests that provinces would lose their power to legislate under s. 92 of the Constitution Act, 1867 for the benefit of their constituents even if that might have impacts on interprovincial trade.”

Later on in the decision, the nine most learned judges in Canada claimed they were baffled by the English language: “This text on its own does not answer the question of how ‘admitted free’ should be interpreted.” They never considered the dictionary definition for example. Free means without any hindrance, “without cost or payment,” which in the context of the sentence and in the context of the time and the rest of the Constitution Act means without any government duty or tariff. Broad words with broad meaning, yet the Court complained there were no limitations to fit its conclusion. So they carried on regardless. The court spent a lot of time considering the historical context only to ignore the context in order to reach a decision the justices likely felt fit the actual history of Canada, which they ignored for its unconstitutionality.

It’s like Gillian Butler’s decision in Newfoundland and Labrador in favour of the teachers’ union that wanted to hide the names and job titles from any access to information request. Butler ignored literally more than a century in which government disclosed the names, positions, salaries, and religious affiliation of public servants (long before there was an access law), and the wording of the access law itself to claim that the words on the page that said public servants could not claim a privacy exemption to conclude the word “cannot” actually meant “can.”

Mr. Bumble got it right, after all.

We know the provincial governments and others in Canada oppose free trade because they do so all the time. Newfoundland and Labrador is doing it right now even as the government’s public statements say something else. The provincial government hasn’t done a thing to lower any barriers, at all. It’s actually endorsed all its existing exceptions to free trade. Other provincial governments are dragging their heels.

They are not alone. One of the country’s largest unions - UNIFOR - fought American protectionism by teaming up with provincial Premiers to plead with the Americans against their tariffs but that’s really only because UNIFOR members would lose their jobs as a result. UNIFOR doesn’t support free trade and the benefits of jobs and better wages it brings globally. Like all unions, UNIFOR claims to be progressive but it is as conservative and reactionary as can be. The Newfoundland and Labrador Association of Public Employees represents both brewery workers and the people who run the provincial liquor monopoly. NAPE opposes free trade within Canada. Not surprisingly, UNIFOR also wants the federal government to punish companies that move jobs outside Canada. It wants its own protectionism. UNIFOR wants to use a law originally intended to protect Canadian companies from American trade sanctions against Cuba but where there’s a will, there’s a way to pervert any words on a page whether you are a judge or a union boss.

UNIFOR claims it is about companies that move outside Canada to avoid American tariffs but there’s no place those companies can go - other than the United States - to avoid tariffs. And frankly, that would be idiotic for most companies, except the failing American owned car companies, since anywhere you go in the world, there will be tariffs as long as Trump 47 lasts. Moving to the US would be nuts for lots of reasons. What UNIFOR is talking about is really just another form of protectionism, exactly as Trump is doing.

Canadian union bosses are no less hypocritical a collection of self-interested politicians than Canadian Premiers. Alberta Premier Danielle Smith, for example, endorsed the federal Conservative Party in the recent general election even though one of their major platform planks - forcing development of energy projects in exclusive provincial jurisdiction - goes against *her* platform of fighting off federal intrusion into provincial jurisdiction. Then again, as much as she and her political supporters have attacked the federal Equalization program, demanding it be scrapped or radically overhauled, in her most recent list of demands, Smith wants to collect welfare for governments even though she leads the wealthiest provincial government in Canada by any measure and by a wide margin.

Smith’s Sovereignty Act or Quebec’s Bill 96 may anger some pundits like Andrew Coyne or Emmett Macfarlane but there are two things to note about them. First, they actually don’t upset the Canadian constitution. Smith’s Sovereignty Act commits her government to follow it, which of course she doesn’t want to do. Clearly, her policies, like endorsing federal override of provinces violates the constitutional areas of responsibility she supposedly wants to protect against the feds.

Second, the whole thing is about money, just as it was just about money every year since 1867. Provincial governments just shifted perspective over time. In the 1950s, the federal government had a lot of cash and started to give money directly to universities even though education is an exclusive provincial domain. There was a national purpose and a national economic purpose behind it but some provinces, like Quebec, opposed it. Eventually provinces got to like the extra cash, which made their provincial politicians look good because they could take credit for the goodies. They could blame Uncle Ottawa at the same time. Win/win. Only Quebec staunchly opposed the federal intrusion just like in the 1960s Quebec and Newfoundland and Labrador opposed federal interference in energy transmission.

Flip ahead a half century and we now have a provincial government claiming it wants to be sovereign - literally independent perhaps - unless the federal government pledges to violate the Constitution Act, force pipelines across other provinces, and give it cash to which it isn’t and never will be entitled from a program it wants to abolish.

Alberta’s grievances are, like the ones in Newfoundland and Labrador over the past 50 years, just a political dodge. They shift discussion away from what the provincial government is doing, create a fake enemy to rally locals against, suppress local opposition with claims of patriotism, and if the political game works out, the provincial politician may bag some extra federal cash to spend without fear of accountability.

Look at Danny Williams in the early 2000s in Newfoundland and Labrador. In Newfoundland and Labrador, the dodge disappeared once the people behind it got paid off. Sure Dwight or Andrew or now John will mouth words about Equalization or joint fisheries management but their hearts are not in it. Tony Wakeham would be no different. In Alberta, they keep going, fueled in part by cash from south of the border and in part by a grievance industry they’ve built up with government cash to outfits like the University of Calgary’s policy school.

But if you look at both Alberta and Newfoundland and Labrador, the provincial governments are trying to avoid the essence of the constitution, which is responsibility and accountability. It’s hard for leaders in both provinces to think about what comes next, after oil, for example, so they make up fights with a fake enemy. They want to shift responsibility, one way or the other, for what *they* aren’t doing.

“A fundamental condition of representative democracy,” Pierre Trudeau wrote in 1957 in an essay about the fight over federal grants to universities, “is a clear allocation of responsibilities. A citizen who disapproves of a policy, a law, a municipal by-law, or an educational system must know precisely whose work it is so that he can hold someone responsible for it at the next election.” He opposed the federal grants in part for that reason.

That’s one lesson to take from this latest eruption of grievances about Ottawa. It’s about evading responsibility. The second is that - if you look at commentaries like Emmett Macfarlane’s latest, linked above - you can see how much Canadian political science is obsessed with structures and wiring diagrams even though they don’t really matter. That’s the third lesson, what really matters: the words on the constitutional page are meaningless if, as in the Canadian case since 1867, the people running the country do what they want, regardless.

The best that Canadians might hope for are politicians who come along now and again with a generally, genuinely national vision and purpose who can unite the country or even just push back against the wailing of provincial premiers who are, as a class, indecisive except for knowing how to blame Ottawa and demand more cash to settle their largely imaginary grievances.

---