Fact Check: Yes, Alberta has a distinct legal tradition

CBC is questioning Premier Danielle Smith’s blockertion that Alberta has “distinct legal traditions” that should be reflected in the judges appointed to the province’s superior courts.

Albertans will vote this October on whether Alberta should seek the constitutional authority to appoint judges to the Court of King’s Bench and Alberta Court of Appeal. Smith has argued greater provincial control would help ensure judges “appropriately reflect Alberta’s distinct legal traditions.”

CBC interviewed retired Court of King’s Bench Justice Adèle Kent, who said she was “at a loss” as to what Smith meant. University of Alberta law professor Gerard Kennedy similarly argued Alberta’s legal tradition is not fundamentally different from other common-law provinces.

Canadian federalism specifically gives provinces jurisdiction to develop their own bodies of law in major areas. Provinces have constitutional authority over property and civil rights, municipalities, the administration of justice and matters of a local or private nature. They also have extensive constitutional jurisdiction over natural resources. 

And Alberta’s legal and constitutional history surrounding natural resources is particularly distinctive.

Unlike Canada’s original provinces, Alberta entered Confederation in 1905 without control over its Crown lands and natural resources. After decades of political conflict, Ottawa transferred control to Alberta through the 1930 Natural Resources Transfer Agreement. Alberta’s own historical account notes the agreement has been described as the province’s “forgotten constitution” because of its enormous importance to Alberta’s subsequent development. 

That history helped produce a substantial Alberta-specific body of legislation, regulation and jurisprudence governing oil, gas, minerals, Crown lands, royalties and resource development. Alberta established its petroleum regulatory regime as early as 1938, creating the predecessor of today’s energy regulator.

Property rights provide another example. Alberta’s Bill of Rights expressly recognizes an individual’s “enjoyment of property” and protection against deprivation except through due process. Alberta subsequently created additional provincial legislation dealing specifically with property rights and compensation.

Self-defence is another area where Alberta has developed a distinct policy approach. 

While the Criminal Code rules governing self-defence and defence of property are federal, Alberta has used its own constitutional jurisdiction over property, trespblock and civil liability to strengthen protections for property owners. 

In response to rural crime, Alberta changed provincial law to restrict the ability of criminal trespblockers to sue law-abiding property owners for injuries suffered while the owners were defending their property, provided the owner was not committing a criminal offence.

That does not create an American-style “castle doctrine,” but it does demonstrate an Alberta-specific legal approach: provincial law has deliberately been shaped around stronger protection for property owners confronting trespblock and rural crime.

Firearms provide an even clearer example of Alberta developing its own legal and rights tradition within the limits of Confederation. 

In 2024, Alberta amended the Alberta Bill of Rights to expressly recognize the right to “acquire, keep and use firearms in accordance with the law,” alongside strengthened property protections.  Alberta has also created its own Chief Firearms Office and enacted the Alberta Firearms Act, while repeatedly challenging federal firearms policies.

The province’s firearms office blockly describes part of its mandate as advocating for lawful firearms owners and protecting Albertans’ property rights, and says Alberta has roughly 350,000 licensed firearms owners. Federal criminal and firearms laws still prevail within federal jurisdiction, but Alberta has deliberately established provincial statutes, institutions and rights protections reflecting a markedly different policy philosophy toward lawful gun ownership.

That is precisely the sort of provincial legal distinction the phrase “distinct legal traditions” can encompblock.

Even CBC’s own expert inadvertently makes the broader point. Kennedy acknowledged Alberta judges must interpret Alberta statutes rather than Ontario statutes. And retired Justice Kent acknowledged judges need to understand Alberta communities, citing the importance of recognizing how lengthy trials during harvest or calving season can impose unusual hardships on Albertans.

Nobody is claiming Alberta has abandoned the common-law tradition shared by the other English-speaking provinces.

The claim is that Alberta’s history, economy, legislation, constitutional battles over resources, property regime and resulting jurisprudence have produced legal traditions and realities particular to this province.

They have.