Publication date: Sep 06, 2022 • 13 hours ago • 4 min read • 23 comments UCP leadership candidate Danielle Smith speaks at a campaign rally in Chestermere on Tuesday, August 9, 2022. Azin Ghaffari/Postmedia

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UCP leadership candidate Danielle Smith of Alberta’s promised act of sovereignty is of “dubious constitutionality,” legal experts say.

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On Tuesday, Smith released an overview of the proposed act, which she says will be used to defend the province from “Ottawa’s continued economic and constitutional attacks.” Sign up to receive daily news headlines from the Edmonton Journal, a division of Postmedia Network Inc. By clicking the subscribe button you consent to receive the above newsletter from Postmedia Network Inc. You can unsubscribe at any time by clicking the unsubscribe link at the bottom of our emails. Postmedia Network Inc. | 365 Bloor Street East, Toronto, Ontario, M4W 3L4 | 416-383-2300

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“The majority of Albertans are frustrated with the ineffective letter-writing campaigns and empty rhetoric used by previous premiers to address attacks on Alberta by our federal government and want effective action to address the ‘Ottawa Problem’ without further delay” , Smith said. in a press release. “Tens of thousands of Albertans have embraced the idea of ​​the Alberta Sovereignty Act, and many more are open to learning more about how it could be developed practically and effectively.” According to the review, the act would assert the legislature’s power to deny provincial enforcement of specific federal laws or policies “that infringe Alberta’s jurisdictional rights” under the Canadian Constitution or the Charter of Rights and Freedoms.

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The purpose of the act is not to secede from Canada, but to assert Alberta’s constitutional rights “to the fullest extent possible by effectively governing herself as a nation within a nation.” University of Alberta professor and constitutional law expert Eric Adams has concerns with the proposed legislation. “I think that concept itself is of dubious constitutionality,” Adams said. “It’s fine for Ms. Smith to say it’s constitutional, but any time you have one level of government that claims it has the power to deny the lawful acts of another level of government or to be the body responsible for determining what is constitutional or not, then you raise a series of constitutional problems that the details probably can’t save.”

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If the federal government enacts a law or policy that appears to infringe on Alberta’s jurisdictional rights, according to Smith’s overview, the Alberta government can make a “special motion” for a free vote of all MLAs. The special motion will identify the law or policy that is believed to violate the Constitution or the Charter, include an explanation of the harm it would cause Albertans, and detail the specific actions the province and its agencies will take to deny or otherwise object to Alberta enforcement. The specific proposal will also state that from the commencement of the act, the law or policy in question will not apply within Alberta as described in the proposal. Finally, he said, a review and discussion of whether or not to modify the actions outlined in the special proposal will be scheduled within two years or within 90 days of a court ruling that suspends the special proposal or declares it unconstitutional. herself, whichever is earlier.

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We apologize, but this video failed to load. While invoking the act “will likely be done relatively sparingly”, the overview outlines some areas where the act could be used. This includes federal mandatory vaccination policies, the use of emergency legislation to jail and freeze the accounts of peaceful protesters, and mandatory emissions and production cuts at Alberta energy companies.

Smith is ‘crazy wrong’ says law professor

Adams said Smith claims the party has the power of a court to determine what is or isn’t against the Charter. “It indicates, I think, the danger of a politician claiming to have the power and the monopoly to determine what laws he says are constitutional or not,” Adams said. “We have a process to do that in our system of government and that’s the courts.”

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University of Calgary law professor Martin Olzinski said Smith is “extremely wrong” about the Constitution, the Charter and the separation of powers between them. He said provinces can already use the courts to challenge laws believed to be unconstitutional and ask for a temporary stay of the law in question. “There is absolutely no merit to what Ms. Smith is saying or suggesting, it’s not true that the federal government can act illegally and wait years to get an appearance,” he said. “It just means you have to use the tools that are available to you.” He also notes that it is troubling that if the act is passed and found unconstitutional, Alberta could use the same act to ignore the court’s decision. “We would be a failed democracy at that point. We would be an outlaw state,” Olszynksi said. “Governments and legislators cannot simply ignore the courts. You are no longer dealing with a democracy and the rule of law at this point.”

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Political scientist Lisa Young said the proposed act appeals to many of Smith’s supporters’ worst fears. “What Danielle Smith has done here is take us one step further down this road to imaginary federalism, where she’s now claiming that there are threats out there and that the Alberta legislature can somehow neutralize those threats.” , he said. “Both of these things are not true.” During an unrelated press conference Tuesday, Premier Jason Kenney slammed the sovereignty act as first proposed by the Free Alberta Strategy, saying it’s “disastrously stupid” and will lead to Alberta becoming a “banana republic” . Kenney, who recently returned from a trip to South Korea to promote investment in Alberta, said such legislation would be “kryptonite” for investors. He will vote against the bill if it is tabled in the House. “They are interested in political stability, not political chaos,” he said. “They are interested in a jurisdiction that respects the rule of law and the authority of the courts.” [email protected] Twitter.com/JunkerAnna

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