Who’s the boss? Albertans to vote on whether provincial laws should trump federal ones when the two conflict

Picture this scenario: an uninsured Alberta driver causes a car crash. 

The provincial government compensates an individual injured in the incident, and then seeks reimbursement from the uninsured driver.

Later, under federal bankruptcy law, the driver is granted a full discharge from his debts, including the province’s claim.

Despite that, the provincial government continues to suspend his driver’s licence and vehicle permits under its provincial traffic law until he pays up on the debt.

The federal law and the provincial law are at odds.

It’s a landmark Alberta case that landed in court in 2015 tied to what’s known as federal paramountcy in Canadian constitutional law.

Put simply, it means when a federal law and a provincial law are in conflict, federal law wins out.

That conflict played out in the case of the uninsured driver. In the end, the Supreme Court ruled the driver shouldn’t be forced to pay the debt in order to renew his licence.

This sort of conflict, of course, isn’t exclusive to traffic disputes. 

Debate over interprovincial pipelines, for instance, often involves discussion around how to weigh interests from provinces like British Columbia against projects deemed to be in the national interest.

Alberta wants to flip that script.

This October, the question of federal primacy will be one of four constitutional questions put to Alberta voters — the other three being questions about abolishing the Senate, opting out of federal transfers, and whether Alberta should appoint the judges who sit on the province’s higher courts.

The issue here, according to the provincial government, is that the Constitution grants provinces authority over certain areas, like natural resources and electricity. 

But federal paramountcy means conflicting laws at the federal level can override provincial legislation. 

In Alberta’s view, that can undermine provincial legislatures.

“This is especially true with respect to the environment, which is an area that can be regulated from different perspectives, one of which may relate to a provincial power and the other to a federal power,” reads the government’s website for the referendum.

With all that in mind, voters will be asked Oct. 19 whether they support a government push to try to amend the Constitution. Like the other Constitutional questions on the ballot, that’s no easy feat, which we’ll touch on later. 

It’s possible this constitutional question hasn’t permeated the provincial consciousness in ways like federal transfers and Senate reform may have.

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But Geoffrey Sigalet, director of the UBC Research Group for Constitutional Law, sees it as part of an ongoing “vibe shift.”

“By fighting paramountcy and pointing it out, they’re kind of signaling to Albertans the way the Constitution seems to have been interpreted in ways that disadvantaged provincial power,” he said.

Of course, like other constitutional questions on the ballot, constitutional scholars take different views on what’s being proposed.

“This is an odd one,” said Gerard Kennedy, an associate professor of law at the University of Alberta.

While not voicing support or opposition, Kennedy said the ballot questions tied to federal transfers and judges lend themselves to “very reasonable discussions.”

“This one … I think it does undercut the nature of a federation,” he said. 

One can have a reasonable debate about whether federal powers should be lessened, in Kennedy’s view.

And if it’s determined they should be lessened, he said, those powers should be constrained.

“But if there is genuine and fair overlap, having the sub-national law take paramountcy is very unusual.”

Meanwhile, Sigalet said provinces getting paramountcy would have an effect on a subset of cases. 

But in his view, it wouldn’t “radically transform” the division of powers — those would remain the same. It would just change how they relate in particular cases where there’s irreconcilable operational conflict.

“And that is not that common of a thing,” he said.

In Sigalet’s view, though it is a doctrine that is rarely applied, it is “open to abuse” and possibly has been abused in the past.

“It’s something that provinces want to shut off. They don’t like having this doctrine. They don’t like the feds having this doctrinal recourse, the rare cases where it does come up, shutting down the provinces,” Sigalet said.

Still, even if Albertans vote “yes” to this question in October, that doesn’t mean paramountcy flips to Alberta.

Such a constitutional amendment would require the support of Parliament, as well as at least seven provinces representing at least half of Canada’s population. 

Kennedy sees that as unlikely — even if some provinces might like the idea — given the need for agreement in the House of Commons and the Senate.

“The federal government needs to ensure that if there is an intransigent sub-national entity that can jeopardize a national project, that it’s not able to do so,” Kennedy said.

Sigalet, meanwhile, also sees the possibility the province could use this ballot item as part of negotiations.

“I’m just speculating, but … we’ll give up the paramountcy provision if you keep our language in this really important part, here. Let’s say, about spending power,” Sigalet said.

Granting provincial primacy could also have other consequences, in the view of Kennedy.

“For instance, there’s a project in the national interest … let’s say, a national pipeline,” he said. “A province could use … [that] power over property and civil rights to block the pipeline.”

In response to a request for comment, a spokesperson in the premier’s office wrote in a statement that this ballot question “simply seeks to ensure provincial autonomy is respected when federal and provincial powers are in conflict.”

“Interprovincial projects remain under federal jurisdiction, and that won’t change. Overcoming regional barriers to get nation-building projects built is one of the main purposes of Confederation,” the statement reads.

“However, certain environmental measures can be regulated from different perspectives. A good example is seen in the now scrapped oil and gas production cap, which clearly fell under provincial jurisdiction. We believe in these cases, Alberta’s laws and regulations should remain paramount.”

Any potential negotiations, of course, remain a far-off proposition.

Before any take place, Albertans will be tasked with considering this legal principle as part of several ballot questions that could reshape the province’s relationship with Canada.