All this constitutional chaos, and Danielle Smith hasn't won anything yet

The UCP leadership candidate's Sovereignty Act proposal seems destined — or designed — to thrust Alberta into murky, uncharted waters, if it hasn't done so already.

What about when the UCP leadership candidate becomes premier?

Danielle Smith makes a comment during the United Conservative Party of Alberta leadership candidates' debate in Medicine Hat, Alta., in July. (Jeff McIntosh/The Canadian Press)

In a month from this Tuesday, the United Conservative Party will tell Albertans who's been selected by members as leader and the province's next premier, be it Danielle Smith or someone else. Thirty-some days out, and yet look at the uncharted waters and murk we're already in.

Alberta's viceregal has signalled she would, if necessary, refuse to sign into law the proposed first bill of a Premier Smith government, pending her office's vetting of its constitutionality. Lieutenant-Governor Salma Lakhani would be wielding a form of royal power that no lieutenant-governor, in this province or elsewhere, has successfully used since the 1930s (another ceremonial head in Saskatchewan tried to do so in 1961, but the federal government overruled him).

That's a big "would refuse" in response to a proposal that offers its own sort of convention-busting, hitherto politically explosive "would refuse." After all, the whole purpose of the Alberta Sovereignty Act, as Smith and allies have explained, is to declare the province's officials would refuse to enforce certain federal laws of politicians' choosing. 

Smith has raised the fact that the Liberal prime minister appointed Lakhani, but there are reasons beyond sheer partisanship that Lakhani might have suggested this possible intervention when asked by journalists how she'd approach a constitutionally dubious bill beckoning her signature. And Premier Jason Kenney might have been doing more than causing trouble for a would-be successor when, weeks earlier and again this Friday, he questioned the idea and suggested the very same thing about what Lakhani would do.

These arguments were bolstered by various constitutional scholars and law professors who have warned that Smith's plan is a flagrant violation of the Constitution and rule of law. And to top it off, Kenney and other critics have warned of another upshot: the legal quagmire would drive away business investment and hamper the Alberta economy.

The fire and the smoke

All this hand-wringing and alarm-blaring from two of Alberta's highest offices over a piece of legislation whose text — as Smith repeatedly says — hasn't been published, and wouldn't be unless she prevails in the leadership contest? Why would Lakhani discuss her role as a "constitutional fire extinguisher" before anybody can strike a match yet?

It's because this would-be premier has made the centrepiece of her campaign this idea, whose co-authors Rob Anderson and Barry Cooper have said would be overturned by the Supreme Court — and that is "exactly the point."

Anderson, Smith's campaign chair, told CBC in June: "Lots of good things can come from crises."

The good, in the Smith camp's idealization, is a federal government more prone to bending to Alberta's wishes on fiscal sharing, environmental rules and other matters. Though that would come after a lot of dust settles, and chaos diminishes, and again as an ideal outcome. Not all best-case scenarios come to pass, of course.

A woman stands in a park.
Alberta Lieutenant-Governor Salma Lakhani speaks to reporters on the legislature grounds in Edmonton about UCP leadership candidate Danielle Smith's proposed Alberta Sovereignty Act. Lakhani says she would not give royal assent to any bill that is unconstitutional. (Janet French/CBC)

Who knows what comes to pass when, as Smith has suggested, the Alberta legislature chooses to determine what federal rules do or don't intrude on Alberta's constitutionally-defined powers, usurping the traditional role of the courts? And who knows what happens if, for the first time since before the Second World War, a viceregal tries to herself pre-empt the courts and weigh in with an opinion on the constitutionality of a law? 

"You can't correct an unconstitutional act with an unconstitutional act," opined Howard Anglin, a former Kenney advisor and director of the Canadian Constitution Foundation. 

Prime Minister Justin Trudeau thus far has avoided playing this hurricane of what-ifs with signals of how the federal government would respond, as has Pierre Poilievre, likely to be crowned federal Conservative leader in a couple weeks.

It all leads to a potential period after the next UCP leader is named Oct. 6 that's fraught with anxious tension, uncertainty, challenge and interjurisdictional don't-blink contests. One could argue that is also exactly the point.

Smith's whole value proposition to supporters frustrated with the status quo is a more chaotic and conflict-driven approach, particularly with Ottawa — fiercer than Kenney's referendum on equalization and multiple lawsuits against the carbon tax and the Impact Assessment Act that governs major energy projects. 

Now-former finance minister Travis Toews, left, with Premier Jason Kenney. Danielle Smith accused Kenney of criticizing her proposed Sovereignty Act to help Toews' UCP leadership bid against her, but Kenney has insisted he's criticizing an idea that he disdained before she adopted it. (Jason Franson/The Canadian Press)

She's proposing dramatic upheaval and confrontation on other fronts, as well. With her voter base still seething over public health restrictions and hospital systems' handling of COVID-19, Smith has promised to turf the leadership of Alberta Health Services and of the College of Physicians and Surgeons of Alberta.

She has also promised to add a whole new protected class of citizen to the Alberta Human Rights Act: people who choose not to vaccinate. Private or public-sector employers would be forced to drop or never renew their vaccine mandates, and prohibited from requiring workers' vaccination information for COVID-19 or any other public health crisis that may follow.

Smith has argued that the governments and agencies that imposed public health rules created chaos and conflict themselves for citizens and businesses. But she risks creating whole other levels of turmoil by taking away a boss's ability to protect their workplace as they choose to.

And with several of her leadership rivals, the outgoing premier and finance minister all dumping scorn on Smith's marquee plan, it's safe to expect ample chaos within a UCP caucus led by Smith — which could preoccupy much time she could otherwise spend dealing with actual policy and public matters. But if you've watched the last year or so under Kenney's leadership, that may not amount to much change.

Dousing (or fanning) the flames

The lieutenant-governor's piling on to the questions swirling around Smith's Sovereignty Act have prompted the candidate to pledge that next week she'll come forth with "proposed particulars and mechanics" of the bill, if not any actual text. She's pledged it will hew to constitutional standards.

While on one hand she's stated before that the bill would only ever be wielded when MLAs approve such use, and said she hoped she'd never have to use it, she also tweeted this week it would come into force to block any federal environmental enforcement officers from operating in Alberta (a warning based on, according to the federal ministry involved, misinformation).

But if her top priority becomes a pale imitation of what its authors envisioned, if it's much watered down and creates less constitutional friction with Ottawa and the courts, perhaps it becomes harder to actually produce the "good things" that are supposed to emerge.

Smith supporters may want the chaos agent she had billed herself as. And she needs only to look to Kenney's fate, and the ensuing frustration of United Conservatives, to know what happens when big promises of victories against Ottawa do not materialize.


Jason Markusoff

Producer and writer

Jason Markusoff analyzes what's happening — and what isn't happening, but probably should be — in Calgary and sometimes farther afield. He's written in Alberta for nearly two decades with Maclean's magazine, the Calgary Herald and Edmonton Journal. He appears regularly on Power and Politics' Power Panel and various other CBC current affairs shows. Reach him at


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