Carson Jerema: My plan to turn Canada into Alberta

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Though the court case was not legally successful, it did contribute to making the political case against the carbon tax, a case that eventually succeeded when Prime Minister Mark Carney effectively ended the tax last year. Ultimately, this was the result of a loose coalition of provinces, the Conservative party and anti-tax activists, and it proved that Alberta can succeed when it looks for common ground with others.

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A couple years after the carbon tax case, when Alberta challenged the Impact Assessment Act, the Supreme Court ruled in its favour, finding that parts of the act contravened the Constitution. In true Ottawa fashion, the Liberals only made minor changes to the act afterwards, but that just means Alberta should go to court again.

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Enough provinces are affected negatively by this legislation that it is worth building another coalition of co-plaintiffs, not just interveners. Every time the feds try to take an inch of provincial jurisdiction, no matter how trivial, the objective should be to go to court.

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There is always the risk that the ideologically captured Supreme Court, with its belief in living trees and progressive politics, will ignore what the Constitution actually says, which brings us to the next peg in the plan.

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2) Constitutional amendment

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Don’t laugh.

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After the failures of the Meech Lake and Charlottetown accords in 1987 and 1992, the view that has taken hold in this country is that constitutional change is impossible. But this assumes that giant sweeping overhauls — the kind that involve excessive horse trading and giving some provinces (i.e., Quebec) even more power — is the only way to amend the Constitution. This view is outdated and wrong.

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Instead, Alberta should pick one thing to change and build support for that amendment among the other provinces. There are three in particular that would have the greatest impact on how Canada is governed.

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Pack the Supreme Court

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This is one of the single most important changes that could both push power away from Ottawa, while likely also gaining widespread support among the provinces.

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The court has become increasingly activist over the last decade and, according to a study by the Macdonald Laurier Institute, 62 per cent of all statutes that it overturns are provincial, including legislation over bike lanes, sex offender registries and the right for public employees to strike. These are not minor policies, but reflect core government priorities. If the federal government succeeds in convincing the Supreme Court to place limits on Section 33 of the Charter, the notwithstanding clause, the usurpation of provincial authority will be near complete.

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To correct this problem, a constitutional amendment to drastically increase the size of the court is the best option. Whether it is increased to 18, 21 or 27, a much larger court makes it harder to become ideologically captured, meaning interpreting the Charter in novel ways unconnected to the text will become less likely. In order to get Quebec on board, as a constitutional lawyer friend of mine suggested to me, the amendment should stipulate that a third of the justices must come from Quebec, and ensure that all Quebec cases are heard only by this subgroup.

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Goodbye Section 35

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This provision, adopted in 1982, states that ” ‘treaty rights’ includes rights that now exist by way of land claims agreements or may be so acquired.” It is the constitutional armament being used to justify granting Indigenous title over large areas of British Columbia, and to slow down the development of needed energy infrastructure. The goal is not to extinguish Indigenous property rights, but to revert to a common law tradition that was more collaborative.

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Triple-E Senate

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A longtime desire of westerners is a Senate that is equal, as in the same number of seats per province, elected, instead of appointed, and effective, given that if it were democratic, it would be just as legitimate as the House of Commons. If the West had 40 per cent of the seats, compared to 20 per cent for Ontario and Quebec, that alone would re-frame how Canada operates.