The Alberta Sovereignty Act is Back: Some Initial Thoughts on the UCP Government’s Latest Response to Federal Firearms Rules

In the weeks before and after it was passed, the Alberta Sovereignty Within a United Canada Act generated a wealth of controversy and debate. While the legislation that we got wasn’t as bold as the version originally proposed in the Free Alberta Strategy, it nonetheless struck many observers as an affront to basic constitutional ideals. Indeed, so glaring was this perceived affront that Emmett Macfarlane described the legislation as “anti-constitutional” and as “the most unconstitutional bill in Canada’s modern history,” while Martin Olszynski and Nigel Bankes dubbed it a “direct attack on the separation of powers” and multiple other constitutional principles. Some scholars — notably Jesse Hartery and Geoff Sigalet — disagreed completely with these assessments (more on their views later), but the trend within Canadian legal academia was clearly towards outrage rather than support or even qualified acceptance.

Three years down the line, it’s been suggested that the Sovereignty Act has largely proven itself a “paper tiger,” with the few motions introduced under the Act being dismissed as “political theatre” and “performative.” Last week, however, we saw a third, perhaps more consequential turn to the Act, this time in relation to federal firearms rules. The short version of the story is that the new motion is the government’s latest response to the federal government’s ever-expanding ban on “assault-style weapons,” which is coupled with an amnesty period and a pathway to compensation for those who, through these new rules, have lost a piece or perhaps many pieces of lawfully obtained property. The government’s position, articulated in its new Sovereignty Act motion, is that such regulation is within the exclusive jurisdiction of the provinces under their property and civil rights power, and their power to regulate local matters; that such regulation violates the gun rights and property rights of Albertans; and that such regulation should not be enforced, administered, or even aided by the province or “any provincial entity.”

Speaking anecdotally, this is a moment that a lot of people expected. In fact, if there’s a surprise in last week’s announcement, it’s not that the government is planning to invoke the Sovereignty Act, but that it didn’t pull the trigger — pun genuinely not intended — much sooner, given that the federal regulations that are now being challenged predated the Sovereignty Act by a couple of years (although the list of prohibited assault-style weaponry expanded in 2024 and 2025). Maybe this has something to do with the internal pressure facing the Smith government after the UCP’s recent AGM, but the important point is that, timing aside, there’s really nothing shocking or even unexpected about the latest motion.

And yet, even if it’s not exactly shocking, the latest motion is nonetheless concerning for three key reasons. First, the government’s interpretation of its own and Ottawa’s constitutional powers is legally dubious insofar as it’s tough if not impossible to square with the Supreme Court’s opinion in the Firearms Reference (2000), the main precedent that we have as a guide on the constitutionality of federal firearms regulation. Second, the new motion, and any Sovereignty Act motion, eschews the conventional (and I think preferable) process through which federal overreach can be alleged and assessed, i.e. via provincially-initiated reference cases. And third, seeing the Sovereignty Act turned on the criminal law like this poses a challenge for our constitutional division of powers, running the risk that patchworks of selective provincial enforcement rise to a level that substantially disrupts national uniformity — a clear presupposition in a system that gives the federal government exclusive jurisdiction over criminal lawmaking. I’ll deal with each of these issues in turn, below, before commenting briefly on the federal government’s proper role in responding to these developments.

The Firearms Reference: Gun Control isn’t Property Law

The Firearms Reference reminds us that AB-Ottawa tensions over gun control are nothing new. In 1995, the federal government passed legislation requiring gun owners to get licenses and to register their weapons. Ralph Klein’s Alberta government challenged this legislation, the Firearms Act, by sending a set of reference questions to the AB Court of Appeal, which upheld the law by a slim 3:2 majority. On appeal, however, the Supreme Court of Canada was far less equivocal, taking just over 60 paragraphs to conclude, in a unanimous judgment handed down in the name of “The Court,” that the legislation was intra vires and grounded in the federal criminal law power. In reaching this conclusion, the Court expressly rejected the province’s claim that the legislation invaded its jurisdiction to regulate property and civil rights — the same jurisdiction that is now being asserted in opposition to federal government’s assault weapon ban (and buyback program). One version of that argument sought to draw a comparison between the Firearms Act and provincial registration requirements for cars, but the Court gave this position short shrift:

“The argument that the federal gun control scheme is no different from the provincial regulation of motor vehicles ignores the fact that there are significant distinctions between the roles of guns and cars in Canadian society. Both firearms and automobiles can be used for socially approved purposes. Likewise, both may cause death and injury. Yet their primary uses are fundamentally different. Cars are used mainly as means of transportation. Danger to the public is ordinarily unintended and incidental to that use. Guns, by contrast, pose a pressing safety risk in many if not all of their functions. Firearms are often used as weapons in violent crime, including domestic violence; cars generally are not. Thus Parliament views guns as particularly dangerous and has sought to combat that danger by extending its licensing and registration scheme to all classes of firearms. Parliament did not enact the Firearms Act to regulate guns as items of property. The Act does not address insurance or permissible locations of use. Rather, the Act addresses those aspects of gun control which relate to the dangerous nature of firearms and the need to reduce misuse.”^[1]

A few paragraphs further on, in swiftly dealing with the claim that Parliament might have a legitimate interest in controlling access to dangerous guns, but not “common property” such as “rifles and shotguns,”^[2] the Court was even clearer:

“The difficulty with this argument is that while ordinary guns are often used for lawful purposes, they are also used for crime and suicide, and cause accidental death and injury. Guns cannot be divided neatly into two categories — those that are dangerous and those that are not dangerous. All guns are capable of being used in crime. All guns are capable of killing and maiming. It follows that all guns pose a threat to public safety. As such, their control falls within the criminal law power.”^[3]

The message here is resounding. Even when dealing with licensing and registration requirements, which raise constitutionally salient questions about the line between property regulation and criminal prohibition, gun control “falls within the criminal law power.” It is hard to think of why registration requirements would be upheld unanimously under the criminal law power back in 2000, but an even more classic exercise of that power — a ban on a host of specific gun makes/models deemed to pose a heightened threat to public safety — would somehow shade into the realm of regulation of property and civil rights today. This is reinforced by the fact that when the assault weapon ban was recently challenged at the Federal Court of Appeal in Canadian Coalition for Firearm Rights v Canada, the property and civil rights angle was completely ignored by the litigants and the Court, presumably because it’s too difficult to reconcile with the Firearms Reference and other relevant jurisprudence.

You don’t have to be a legal realist — although aren’t we all, to a degree? — to accept that legal interpretation is partly about predicting “what the courts will do in fact.” The upshot of this is that, to the extent that they have no real, discernible prospect of judicial acceptance, we shouldn’t count the AB government’s assertions in the latest Sovereignty Act motion as legal interpretations, but as attempts to reinforce political emotions that are widespread across the province (both vis-a-vis gun rights and Ottawa).

The Separation of Powers: Bypassing the Reference Procedure Comes at a Cost

The dubious legal interpretations contained in the latest motion are closely connected with perhaps the most frequently made criticism of the Sovereignty Act: that it potentially bypasses (and perhaps even usurps the role of) the courts. Olszynski and Bankes put forth the most sophisticated version of this argument shortly after the Act passed, arguing that empowering the AB legislature to assess constitutional validity and take concrete steps to blunt the force of allegedly invalid federal laws “very clearly contemplates the creation of a parallel court, the existence of which would politicize and ultimately undermine the superior courts.”^[4] This is a separation of powers issue, they say, but it also has a textual hook in the form of section 96 of the 1867 Constitution Act, which has been interpreted by the Supreme Court to extend to any attempt by the feds or the provinces to transfer superior court functions to other “shadow” courts.^[5] The twist with the Sovereignty Act is that it doesn’t involve the legislature trying to transfer these functions — specifically, the function of assessing constitutionality — to a non-section 96 court, but to itself. To quote Olszynski and Bankes directly on this point:

“Put bluntly, the separation of powers, as reinforced by section 96, does not contemplate that a legislative assembly could arrogate to itself the power to make a declaration as to the validity of a federal law – and for good reason. Legislatures are the embodiment of our democratic ideals, but they have neither the competence, independence, impartiality, nor accountabilities that are the hallmarks of our superior courts.”^[6]

The Supreme Court’s opinion in the C-92 Reference, on the constitutionality of the federal government’s affirmation of Indigenous self-government in relation to child services, arguably complicates this claim, as Olszynski and Bankes later acknowledged. There, the Court held that Parliament is entitled enact legislation based on its own interpretation of section 35 of the Constitution Act, 1982, even if this interpretation hasn’t yet been confirmed by the courts. To paraphrase one of the intervening lawyers, Parliament can’t legislate in a way that falls below the constitutional floor established by the courts, but it can make decisions on how to imagine and aspire towards the constitutional ceiling, i.e. how to bring section 35 to life and redeem its full promise.^[7]

I don’t want to get bogged down in the question of exactly how much this recent note from the Court blunts the force of Oszlynski and Bankes’ argument on the illegitimacy of legislative assessments of constitutionality under the Sovereignty Act. Whatever force that argument now has as a matter of law,^[8] what’s clear is that a Sovereignty Act motion eschews the conventional process through which provinces can and routinely do contest perceived federal overreach, i.e. by sending reference questions to their courts of appeal. The latest motion shows why this is concerning: because it enables governments to propose and act on constitutional interpretations that lack strong anchorage in existing law, that likely wouldn’t hold up in court, and that encourage the emergence of skewed public consciousness re: constitutional power. If the government is concerned about the possibility of federal overreach, it should voice those concerns in open court, where they can be independently tested and filtered through the prism of what our constitutional jurisprudence actually says. Otherwise, we’re once again stuck in the realm of political emotion, where constitutional meaning depends on feelings rather legal facts.

The Division of Powers: Balancing Commitments to Legitimate Provincial Discretion and Crim Law Uniformity

Hartery and Sigalet make a helpful contribution to the debate on the Sovereignty Act when they connect it with debates in US constitutional law over the concepts of nullification (the practice of regional governments overriding laws or court decisions) and anti-commandeering (the principle whereby a national government can’t force a regional government to administer national laws). They argue, in essence, that the Sovereignty Act merely recognizes an anti-commandeering principle that is already embedded in Canadian law, establishing a legal framework through which Alberta can adopt a non-cooperative posture towards a particular federal law, and through which the Alberta legislature can publicly explain and justify its opposition to that law via different forms of constitutional and extra-constitutional language.^[9]

There are plenty of historical and recent examples of such provincial non-cooperation or at least non-enforcement, including vis-à-vis criminal law. One of the most famous, given its role in an important part of Canada’s modern constitutional history, is the story of Quebec eventually deciding not to prosecute doctors who carried out procedurally illegal abortions. This was a response to three failed attempts to prosecute Henry Morgentaler, a doctor who openly operated an illegal abortion clinic in Montreal, and who eventually — many years after his three acquittals in Quebec — convinced the Supreme Court of Canada to strike down the provision of the Criminal Code that barred abortions outside of accredited hospitals.

The things is, the Morgentaler example always strikes me as a strained fit when it’s discussed in relation to the Alberta Sovereignty Act. The overriding problem, I think, is that it was Morgentaler who was engaging in principled “anti-commandeering,” not Quebec. Morgentaler was openly and repeatedly violating federal law, and Quebec responded three times by seeking to enforce that law against him (to the point where the Quebec Court of Appeal eventually overturned one of the jury verdicts, landing Morgentaler in prison). It was only after a third jury refused to convict Morgentaler in 1976 that the then new PQ government decided to accept the unenforceability of the law — a move that was clearly exceptional and tied to the rare circumstances of the government realizing that juries would simply not enforce the law as written.

In effect, then, the Morgentaler story is about a province reporting back to federal lawmakers: we’ve tried enforcement and the news from the ground is that it just isn’t working. The latest Sovereignty Act motion, by contrast, sends a very different message: we won’t try, we will resist.

Bracketing the difficult questions of constitutional law that surround provincial discretion over criminal prosecution, there’s no doubt, for me, that postures of defiance and non-cooperation directed at allegedly unjust and/or unconstitutional laws will sometimes fall on the right side of history (as was surely true in Morgentaler’s case).^[10] Let’s be real about the risks of these postures, though: if enough provinces adopt a non-cooperative stance towards enough chunks of criminal law, and if non-cooperation leads to blanket non-enforcement (i.e. if federal enforcement isn’t feasible), we run the risk of seeing criminal law descend into a patchwork quilt, with the law on the books remaining static but the law-in-action shifting from one province to the next. This will always be true to a degree, but any incongruence between books and action should generally be a product of inevitable patterns of prosecutorial discretion or borderline unavoidable, pragmatic decisions like the Morgentaler one. Wholesale non-enforcement of specific criminal laws flowing from broad, value-based judgments, by contrast, should be approached with the utmost caution, given the non-trivial risk that it runs of sending our aspirational, constitutionally entrenched commitment to national uniformity in criminal law into the shadow realm.

It should go without saying, but in case it needs to be said: such shifts in the nation’s constitutional architecture shouldn’t be a product of unilateral action, whether from a province or from the feds. The Supreme Court was clear about this in the Senate Reform Reference, and we should be wary about now sleepwalking into a situation where schemes of provincial non-enforcement accumulate over time to nullify federal jurisdiction over criminal law, at least as a matter of on-the-ground reality.

What we need — what we always need — is balance. Maybe this is where the paramountcy doctrine can provide a solution, with courts engaging in case-by-case assessments of whether a given policy of non-enforcement rises to a level where it frustrates the purpose of the federal criminal law. Whatever the solution, we need be clear-eyed about how far we are willing to let criminal uniformity slide, and of how quickly and easily we can slide from permitting an isolated scheme of non-enforcement to finding ourselves in a quite different constitutional system.

Conclusion: What About the Feds?

To be clear, nothing in this post is intended to undermine the importance of provincial action in the face of perceived overreach by the feds. Thankfully, Canadian provinces have needed no lessons in this regard, but have been rightly eager to seek judicial assessments of questionable federal laws — especially, of late, in the field of environmental regulation. This raises the question, though, of whether the federal government should adopt a similar posture vis-à-vis provincial law, specifically by initiating Supreme Court references on constitutionally questionable actions like the latest Sovereignty Act motion. If the feds see something, shouldn’t they follow the provinces’ lead in actually saying something?

There are many strategic reasons for federal reticence here, but look at where federal inaction on recent constitutional envelope pushing by the provinces has left us: four notwithstanding bills tabled since the start of October, a Quebec bill tabled that would meaningfully upend the division of powers, and a new Sovereignty Act motion targeting federal criminal law. Whether you’re for these things or against them, they unquestionably sit at the margins of what's constitutionally expected, and we’d therefore benefit tremendously as a political community from the Supreme Court’s advice on whether they’re on the right side of the legal line. The result of leaving such assessments to chance — i.e. waiting and seeing if constitutionally suspect laws become the subject of litigation — is that initially questionable practices quickly become normal and routine, which increases the risk of public backlash if courts intervene further down the line. Worse still, litigation may never materialize, and the once questionable practice may just solidify, without adequate national debate, into a new facet of who we are.

To be clear, and to conclude, none of this is about stymying provincial experimentation, which is fundamental to the health of the federation (and any federation). Rather, the value of judicial assessment, sparked by the federal reference power, is that it ensures that provincial experimentation is hemmed in by a question that should be at the heart of any constitutional order: how does this new thing fit square with all of these older commitments and system-structuring choices that we’ve made? We can experiment and we can evolve, sure, but we must do so one of two ways: in broad, clearly articulable conformity with existing constitutional laws, principles, and structures, or through national deliberation, multilateral negotiation, and recourse to the formal amending formula.

***

Richard Mailey is the Director of the Centre for Constitutional Studies at the University of Alberta

^[1] Reference re Firearms Act, [2000] 1 SCR 783 at para 43.

^[2] Ibid at para 44.

^[3] Ibid at para 45.

^[4] Martin Olszynski & Nigel Bankes, “Running Afoul the Separation, Division, and Delegation of Powers: The Alberta Sovereignty Within a United Canada Act” (6 December 2022), online: ABLawg <https://ablawg.ca/2022/12/06/running-afoul-the-separation-division-and-delegation-of-powers-the-alberta-sovereignty-within-a-united-canada-act/> at 9.

^[5] Ibid at 7-8.

^[6] Ibid at 10.

^[7] See Naoimi S Walqwan Metallic, “Aboriginal Rights, Legislative Reconciliation, and Constitutionalism” (2022) 27:2 Rev Const Stud 1 at 26-27.

^[8] Olszynski and Bankes raise one salient difference between Bill C-92 and the Sovereignty Act: “it is one thing for one level of government to affirm its understanding of its own legal obligations in legislation; quite another for it to sit in judgment with respect to the constitutionality of another level’s legislation.” Martin Olszynski & Nigel Bankes, “Going Through the Motions to Trigger the Sovereignty Act: Another Paper Tiger?” (16 December 2024), online: ABLawg <https://ablawg.ca/wp-content/uploads/2024/12/Blog_NBMO_Soverignty_Act.pdf>.

^[9] Jesse Hartery & Geoffrey Sigalet, “The Frontiers of Nullification and Anticommandeering: Federalism and Extrajudicial Constitutional Interpretation” (2024) 54:4 Publius: The Journal of Federalism 628 at 648: “Canadian provinces can sometimes take actions that are contrary to federal legislation or policies. The Sovereignty Act merely announces this explicitly in framework legislation. They can also do so without providing reasons. The Sovereignty Act merely allows the Legislative Assembly to provide reasons before provincial powers are exercised.”

^[10] One additional angle that I don’t consider here is the question of when government can justify top-down non-enforcement directives that effectively override on-the-ground prosecutorial discretion. I’m grateful to Ian Peach for flagging this, but I leave the question hanging for consideration elsewhere.