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Questions about Trudeau, treason reveal state of public discourse in Alberta

Donna Kennedy-Glans in March 2015. Photo: David J. Climenhaga

Donna Kennedy-Glans, by all accounts an intelligent and accomplished Alberta Conservative, recently posted and pinned a Tweet asking, "Has Trudeau committed treason?"

If her intention was to grab the attention of Alberta's chattering classes, she succeeded.

If she was out for attention, though, I'm not sure she really wanted the kind that had folks wondering, "Has Donna Kennedy-Glans gone off her head?"

This was the tone of many responses to the pinned query, since it was soon apparent to anyone who followed the link provided that Kennedy-Glans was at least half serious about this proposition.

All you needed to do was sub in the name of U.S. President Dwight D. Eisenhower for Prime Minister Justin Trudeau and you've almost perfectly caught the tone of the original John Birchers whom Kennedy-Glans seemed to be channeling.

Is the John Birch Society now framing mainstream political debate in this province, or what?

Despite the nuttiness of the question, it's worth spending a few minutes examining the argument, if only for what it tells us about the state of political discourse in Alberta on the cusp of 2019. After all, this commentary by a former lawyer for TransCanada Pipelines is bound to be treated as if it were gospel by the usual suspects on the right.

The post, co-written with former CBC announcer Don Hill on what appears to be a joint-venture blog called "Beyond Polarity," includes a rambling Socratic dialogue with an unidentified "Constitutional Lawyer." This character is strangely reminiscent of your blogger's Perfesser Dave, only less funny.

In it, the authors claim Trudeau is "obsessed with world governance and has abrogated his responsibilities as Prime Minister of Canada." They frame this dubious assertion, grandly, as "the charge."

As evidence of Trudeau's supposed obsession and betrayal, they offer a report that the Liberal Government sent more delegates to a recent climate conference in Poland than it did negotiators to the free-trade table in Washington last summer (which seems reasonable given the latter was restricted to specialist diplomats) and the fact the PM argues his climate policy is in the national interest (as any politician would).

This is weak tea. Nonetheless, based on this, the authors ask if there is therefore a case for Trudeau's removal from office.

This is startling, as Kennedy-Glans is a veteran Parliamentarian and former member of premier Alison Redford's cabinet. She certainly understands how our Westminster system of Responsible Government works.

There is always a case to be made for removing a prime minister. It is up to its proponents to make it and, so far, Kennedy-Glans and her amanuensis are not making it very well.

Perhaps they have been influenced by impeachment fever coming from south of the 49th. But we don't live in the United States, so impeachment is not an option. A prime minister is only head of government, not head of state. Responsible Government provides mechanisms for removing prime ministers: they are a vote of non-confidence or an election.

As for the musings of the unidentified constitutional lawyer, putative source of the blog's wisdom, they amount to a simplistic and misleading caricature of Section 91 of the Constitution Act 1867.

Section 91 sets the respective powers of the federal and provincial governments. It includes reference to the famous POGG Power, that bit of British colonial boilerplate that pops up in several countries' original constitutional documents. It says Her Majesty -- Queen Victoria, that is, and subsequent monarchs -- "by and with the Advice and Consent of the Senate and the House of Commons" can "make laws for the peace, order and good government of Canada." The inevitable acronym, therefore, is POGG.

Learned counsel, if summarized accurately by the bloggers, seems to think POGG is a constitutional magic bullet that allows a prime minister to override the jurisdictional rights of provinces set out in the Constitution at the stroke of a pen.

This is not quite right. The Judicial Committee of the Privy Council in Britain and more recently the courts in Canada have spoken, and Canadian prime ministers are nowadays somewhat limited as to how they may apply the POGG Power to intrude on provincial jurisdiction. Nevertheless, exceptions are fairly broad, and one is to achieve goals of "national concern."

But since there is inevitably going to be disagreement, sometimes profound, about what a matter of national concern truly is, it would be up to the courts to determine, as Justice Gerald Le Dain of the Supreme Court of Canada put it in 1988, if the matter "has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern."

It is a fantasy to imagine the POGG Power can be applied with a snap of a finger -- or be resolved much more speedily than the current difficulties faced by the Trans Mountain Pipeline Expansion Project in Canada's courts.

Even so, this is a weird thing for an Alberta politician to advocate simply because she is aggrieved about a Liberal prime minister doing things in a way she thinks is not in Alberta's interest.

Hasn't the whole history of Confederation since 1867 been provinces, often led by Quebec, fighting to reduce the POGG Power so they can operate in their own interest?

Yet here we have an influential Alberta Conservative arguing that since a pipeline to tidewater is obviously a matter of vital national interest (never mind Canadians are deeply divided on that question), and since Prime Minister Trudeau is not using the POGG Power to push it to completion (never mind that is exactly what his government appears to be doing), therefore he "could" be guilty of treason for "saving the world but letting Canada's economy fizzle out" (never mind that's a highly tendentious interpretation of the impact and nature of his policies).

Stick with me, though. I think I know where Kennedy-Glans and her journalistic and legal sidekicks are trying to go with this.

Are they not proposing a new Constitutional doctrine harkening back to prime minister John A. Macdonald's original scheme -- except that instead of the federal government holding the bulk of the power, Alberta would?

Sir John envisaged a Canada in which a strong federal government could override weak provinces pretty much at will. Thanks to the rulings of the courts, and the patriation of the Constitution engineered by prime minister Pierre Trudeau in the 1980s, things have changed a bit since then.

Kennedy-Glans appears to be proposing that we return to 1867 -- only with Alberta politicians at the controls. And not just any Alberta politicians! Presumably only ones who share her conviction a pipeline to tidewater is self-evidently in the national interest would qualify.

If this doesn't go over very well elsewhere Canada, she seems to think, that's just tough. "B.C.'s John Horgan and Quebec's new premier François Legault … have no authority to block pipeline construction in the 'national interest'. It's federal jurisdiction."

Unsaid but implied is that as mere Canadians the premiers of B.C. and Quebec also ought to have no right to challenge this interpretation before the courts. This is pretty mainstream in Alberta, as those who followed the "rule of law" hysteria here a few months ago are sure to understand.

Or perhaps the authors think it is only a matter of time before the country comes to its senses and brings back Stephen Harper and Jason Kenney to run things.

Alas for them, neither is very likely. First Nations are also not mentioned by the authors. One imagines their thoughts on Indigenous rights follow a similar logic. However, when the federal government decides to enact policies Alberta doesn't want, apparently, it becomes "treason." Or something. The bloggers' narrative is murky at this point.

But even raising the possibility is bizarre. It is certainly neither a sound interpretation of the Constitution nor Section 46 of the Criminal Code. No one would have taken such nonsense seriously five years ago, when Albertans ruled the roost in Ottawa. Now, apparently, large numbers of Albertans do!

So what does this tell us about the state of public discourse in this province? Have we come completely untethered from logic, constitutional law and democratic theory? Or do Kennedy-Glans and the UCP simply need new constitutional advisors?

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca.

Image: David J. Climenhaga 

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