Alberta’s equalization vote is nonsense, but it might prove to be useful nonsense

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It’s nonsense, of course. Alberta can hold a referendum on equalization if it likes, but it cannot on its own amend or delete the provision of the Constitution committing the federal government to providing it. Neither can it compel the federal government or the other provinces to do so, no matter how large a majority of Albertans might vote in favour.

So while it’s good that the government of Alberta has finally disclosed the wording of the question it intends to put to its citizens this fall (“Should Section 36(2) of the Constitution Act, 1982 – Parliament and the government of Canada’s commitment to the principle of making equalization payments – be removed from the Constitution?”), it’s still the same baseless fantasy it always was.

That does not mean the vote will have no impact: Nonsense can be dangerous. Quebec’s assertion that it may unilaterally amend the Constitution to declare itself a nation is no less nonsensical, but it is now unchallenged dogma, not just in Quebec City, but Ottawa.

We should not underestimate the power of wishful thinking or of the popular emotions it can arouse. Indeed, we may expect to hear the Quebec example cited repeatedly in the coming months. If Quebec can rewrite the Constitution to its liking, it will be said, why can’t Alberta? If the rest of Canada can be made to dance to Quebec’s tune, surely it can equally be made to dance to Alberta’s. All it takes is enough determination, plus the right mix of bluster and threats.

After all, Alberta doesn’t really want to abolish equalization. All it really wants is – the ancient battle cry of Canadian federalism – “better terms.” The program has become a symbol of all the many ways in which the country’s richest province feels itself hard done by, from pipelines to pensions. Disestablishing equalization, likewise, is merely an opening bid – a way, as Premier Jason Kenney has put it, to “get Ottawa’s attention.”

Unlike Quebec, moreover, Alberta can point to legal precedent in support of its constitutional adventurism: specifically, the Supreme Court’s decision in the 1998 secession reference. The decision is more famous for having ruled that Quebec could not secede unilaterally in law, but rather would have to seek the necessary amendments to the Constitution – meaning it would have to seek the consent of the federal government and whatever number of provinces was required under whatever amending formula was appropriate.

At the same time, however, the court ruled that in response to the vote of a “clear majority” in a referendum on a “clear question,” the rest of Canada would be no less obliged to negotiate than Quebec. The legal basis for this reciprocal “duty to negotiate” was always murky – the court appears to have made it up – as was its meaning: What exactly would the rest of Canada be obliged to negotiate? What, or who, would define whether the obligation had been discharged? How could any of this possibly be enforced?

What is clear, however, is that the Supreme Court meant this newly minted principle to apply, not just to the case in front of it, but generally. The decision is explicit that the rest of Canada would be obliged to negotiate wherever and whenever the people of “a province,” not just Quebec, voted in favour of “an amendment to the Constitution,” not just secession.

Alberta, then, is about to present itself as a test of the Supreme Court’s invention. Suppose the referendum passes by a “clear majority.” And suppose, as is likely, the other provinces respond with a shrug. They are, after all, equalization’s beneficiaries, most of them. Why would they agree to get rid of it? And if they won’t agree to that, what becomes of the rest of Alberta’s demands?

Perhaps the Premier imagines they would not dare. Perhaps the point is to so gin up Albertans in defence of what they have been told are their “rights” that a unity crisis could be credibly threatened in the event their expectations were disappointed – the same good-cop-bad-cop routine that Quebec federalists have perfected through the years. The Premier has often confessed his admiration for the tactic. Perhaps this is his version of the “knife at the throat.”

But what if the knife is made of rubber? What if the rest of Canada refuses to submit to this blackmail? Perhaps then we really would have a crisis on our hands. But potentially, we would also have set an agreeable precedent. Alberta’s gambit may be nonsense, but if it helps to discredit the greater nonsense on which it is based, exposing the “constitutional duty to negotiate” as unenforceable non-law, it will have done the country a great service.

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