Alberta II

Shape the battlefield.

(This is a sequel to a previous post. It will make a lot more sense if you start here.)

The first post in this series made the case that Prime Minister Carney should call the Alberta referendum early. Make the separatists dance to our tune, force foreign intervenors to move quickly (and hopefully get sloppy). I think that case is obvious. Carney has had a very long honeymoon, but public opinion and events will more likely get worse for him, not better. You’d expect this anyway, governing is about choosing who to annoy, and reversion to the mean is usually the safe bet.

There was a news story today noting that Canadian businesses do not understand who Donald Trump is. They are demanding Carney construct a time machine to 2015 instead of forcing them to diversify their businesses. I understand why they want to think a good USMCA renewal is possible, I just don’t think that’s an option on the table. If a good USMCA renewal isn’t possible, and actively diversifying trade causes retaliation from the US, we should brace for a worsening economy. So better to act now.

Part three will be a list of announcements the feds should make during the campaign to keep the secesh on the back foot and force them to answer uncomfortable questions.

But here in part two, suggestions for how Ottawa can shape the battlefield, and a warning on a feel-good plan that absolutely won’t work.

Shape the Battlefield

I will level with you. There are ideas in this post and the next one that are not pre-approved by a working majority of the Supreme Court of Canada. Some of these will probably lose if they get argued before the SCC in 2030 or whenever they work their way through the lower courts.

A smart Court, jealous of its credibility and reputation, would find ways to conclude most things done during a referendum were moot, political questions, independent Alberta lacks standing, or other reasons to avoid a decision. We can’t count on that sort of judicial common sense, our Supreme Court ruled just a couple months ago that a one-year mandatory minimum sentence for literal child pornographers was unconstitutional.

So there’s a legal risk that might manifest several years from now. That’s fine. You’re fighting a three-week referendum campaign. Win that, then fight the next one. Call this the time value of political success. Victory now is much more valuable than an equivalent victory later.

These posts are of course Alberta focused. I do think this is the way to fight and win Alberta’s continuation in Confederation. But we all know what’s coming next, so we should fight the Alberta secession aggressively and without pulling punches, pour encourager les autres.

A Six-Point Winning Plan

Here are six things the federal government can do to materially improve the terrain the referendum will be fought on.

1. - Ban X.

   1. TikTok too - which is currently undergoing a national security review.

2. Thanks Premier Eby for giving me a news hook, but we’re gonna need to amend s. 46 of the Criminal Code.

   1. I don’t think soliciting or accepting foreign help for a secession referendum currently counts as treason, unless as ‘any act preparatory’ to war. But we could amend the Code and make it clear this counts as treason.

   2. While we’re at it, reinstate the death penalty only for offences under s. 46, and slap the Notwithstanding Clause on it.

3. The referendum will happen February 20 (reasons in first post), and guess what, February 20, 2026, is a national holiday. Juice turnout, don’t give people excuses not to vote.

4. In the event of a province leaving Canada, Cabinet gets sole and non-justiciable power to make two political decisions until the conclusion of any independence negotiations:

   1. CNR and CPR are federally regulated companies, and the land the rails are on was federal from before Alberta was a province. Cabinet and Minister of Transport can set any fees, rates or charges for international loading onto federally regulated rails. This power explicitly includes refusing to load any such cargoes for any reason the Cabinet/Minister finds proper.

   2. TMX is literally owned by the federal government. Give Cabinet the power to set any temporary rates for international cargoes going in the pipe. Again, this includes the power to refuse any or all cargoes for any reason.

5. Force Majeure. Pass legislation that does three things:

   1. In the event of Albertan independence, asserts federal jurisdiction and supplants provincial jurisdiction for any existing contract with its subject matter or at least one party in Alberta (it’s now an international contract, not under provincial heads of power).

   2. Declares that if the contract has a force majeure clause, judges must construe that clause to include the vote to secede from Canada as a force majeure event.

   3. If the contract does not have an explicit force majeure clause, judges must read into it a force majeure clause allowing any party that remains resident in Canada to immediately abandon a contract without penalty or remedy available to the counterparties.

6. The list of Albertan residents on the day the referendum is announced will be the official list of people who are Albertan (and NOT Canadian) for the purposes of post-independence negotiations, if Alberta votes to leave. The federal and provincial governments will not process any changes of address out of Alberta from that day.

Why?

There’s some legal tail risk here. But that will be sorted out years later. We gotta win this fight first.

One of Trump’s key insights is that politics happens in weeks and lawsuits happen in years.

Tilting the national security review and imposing a TikTok shutdown might get some bad headlines and it might immolate Minister Joly’s political ambitions. As I said in the first post, I don’t care. Political careers are expendable when the country is at stake. Maybe see if Carney will spot you a Senate seat afterward, if you must.

The death penalty will get all the headlines. But that’s largely for deterrence value. It’s been the case for most of human history that if you swore an oath to the sovereign (as, for example, was required from Alberta lawyers until very recently) and then betrayed that oath, you could expect to die a lot slower and uglier than at the end of a rope. I wouldn’t bet on the average Canadian judge sentencing a man to death, but it would deter most of the light treason. If you must, offer an amnesty period where people can confess their foreign dealings with no penalty. Air that dirty laundry to stoke nationalism during the referendum campaign.

There might be contractual penalties or make-whole payments to TMX and the railroads for lost revenue. You can settle all that afterward. The pipe and rail threats are twin swords of Damocles to suspend over the Albertan economy.

I actually debated whether to put the force majeure idea into writing, because it’s a legal dirty bomb whose fallout would land on the entire Canadian economy. There’s easily a million billable hours nationwide figuring out which contracts you’d need to amend and protect from the force majeure rules, versus which ones you want to use the force majeure rules to escape. Certainty of contract and predictable judicial enforcement of agreements are pillars of civilization one should not mess with lightly. But if you want the entire business community to shit their pants at an independent Alberta and get extremely motivated to avoid it, this is the method.

Setting the Albertan / Canadian divide on the day the election is called raises the stakes. Make clear that if Alberta goes independent, Canada’s position is that anyone on that list of Albertans is no longer a Canadian citizen, and has no entitlement to the rights or benefits of Canadian citizenship. If they try to move to the rest of Canada and Alberta separates, they will be repatriated. If people cannot vote with their feet, they’ll have to vote with their votes.

And a One-Point Losing Plan

I’ve seen people on social media talk up the First Nations lawsuit seeking an injunction preventing the referendum due to its alleged incompatibility with the numbered treaties. I make no comments on the merits of the lawsuit. But, admission against interest, this isn’t going to be won or lost by lawyers. That’s a fundamental misunderstanding of the game and its stakes.

Donald Trump wants to paint the map. He doesn’t consider treaties he personally signed to be binding on him or the United States. You think he’s going to be restrained in any way by foreign constitutions and treaties that the US isn’t even signatory to?

And have you met the Alberta voters who are undecided or soft separatists? The idea that “judges and First Nations said you can’t”, is going to persuade them is actively counterproductive. It will make them more likely to vote secession.

Again, the legal argument may be meritorious. But it’s not going to be politically effective with the voters you need to persuade, and it’s not going to restrain the increasingly hostile Yankees.

This isn’t a courtroom battle, it’s going to be won or lost behind tens of thousands of cardboard voting screens in school gyms and church basements.

Next Time

A series of announcements to make during the secession referendum to maximize the fear and uncertainty (and even worse, paperwork) associated with independence.