In this episode, Ezra sits down with Professor Bruce Barty, a law professor at Queen's University in Kingston, Ontario, to talk about what it means to be a freedom-oriented academic, and why he thinks Alberta should vote to become independent.
00:02:59.160Well, you and I got to know each other a little bit during the COVID times because you were one of the professors brave enough to speak out against some of the infringements on our civil liberties.
00:03:09.260And that was really an important moment for Rebel News.
00:03:12.120And I think we were ahead of the curve on that story, partly because we weren't government funded.
00:03:16.220So, I think we could think a little more rebelliously, as our name would suggest.
00:03:21.680And especially when the truckers started rolling, I knew something was afoot.
00:03:31.540I think the people of Alberta, astonishingly, incredibly, unpredictably, perhaps, are going to have a vote on independence.
00:03:41.320It looks like the vote's going to be on October 19th.
00:03:43.600And there seems to be a lot of energy out there.
00:03:45.760Give me your thoughts on what you think is coming in Alberta.
00:03:49.900And then I'm going to ask you some more specific questions about your thoughts on what its laws should look like.
00:03:55.440But first, I really, I guess I want to know is, why does a professor in Kingston, Ontario, have such a keen interest in the future of Alberta?
00:04:16.820Second, it's become apparent through the COVID period, but not limited to COVID, that there is something seriously wrong in this country in all different kinds of ways.
00:04:26.840We can go through a very long list of the very basic foundational problems with this country.
00:04:37.540It seems like we've arrived at a place in this country, both in terms of our constitutional order and the way we are governed and the way that people think, even, that contemplating any serious reform of the way the country works is not on the table.
00:04:56.820So, if the country is broken and it cannot be fixed, then what else do you got?
00:05:02.760And what appears to be the case is that in Alberta, there is some kind of critical mass of people who understands both those two things.
00:05:11.320That Canada is broken and two, it cannot be fixed.
00:05:13.660And therefore, they are looking for a different solution, and that solution is to leave.
00:05:19.180And I agree with them about the necessity for doing that.
00:05:22.760I think to save itself, and for that matter, to save the country, potentially, I mean, it's not their job to save the country, but they could inadvertently save the country also.
00:07:42.140They're people who have served at risk to themselves.
00:07:44.280And I don't think that's a paradox, because I think Alberta independence is, like you say, perhaps the most likely way to solve the corrosion of Canada and deal with some structural problems that good Canada still had.
00:08:04.700Super quickly, and then I'll throw it back to you.
00:08:06.360When I was in Medicine Hat last week on an independent speaking tour with Sheila Gunn-Reed, Tamara Leach, our friend Corey Morgan, there was a counter-protest for the first time ever, Bruce.
00:08:19.460And the counter-protest didn't really know what to do.
00:08:21.980These were people who normally carry Palestine flags and trans flags, and they didn't know how to be Canadian.
00:08:30.440They had mainly Canadian flags, which I think was the first time they ever held those, because normally they're against Canada as a colonizer, as a genocider.
00:08:39.860So they were saying, rah, rah, Canada.
00:08:43.440And these are sort of Palestinian trans activists who have never said those words.
00:08:47.960They were trying to sort of hurt our feelings by saying, ha-ha, you actually do like Canada.
00:08:55.240Some of them were just sort of swearing.
00:08:56.840But I guess my point is, and please react to this, to be an Alberta independence-minded person, you don't hate the rest of the country.
00:09:05.760You're just saying it's not working, and it's getting worse for everybody, and we think that we can make a go of it alone, certainly economically.
00:09:12.860Sorry for that long ramble, but there is a duality there.
00:09:15.960Well, there's also a historical parallel, perhaps, which is that the American revolutionaries, their original complaint was that they were Englishmen, and they were not being treated as Englishmen by the king.
00:09:32.980In other words, they wanted to be English.
00:09:36.880They wanted to have the rights of Englishmen.
00:09:38.520They wanted to be within the structure of English government, and their complaint was, you are not treating us like Englishmen.
00:09:47.360And so, of course, that morphed, and they became something else.
00:09:50.780But it's a similar pattern as the one that you're alluding to.
00:09:56.480I think in many ways you're right, that Albertans who now want to be independent lament the loss of a nation most acutely.
00:10:05.080And in many ways, they have been among the most loyal Canadians, and Canada, in return, has not been loyal to them.
00:10:10.860And they have a whole series of complaints, and I think they're quite valid in terms of representation, in the way the government is structured, in terms of the way the policies have obstructed their primary industries, and the way that their wealth is siphoned off and spread around the country.
00:10:29.120All of those things are valid, but there's something more concrete, which is that Canada as a nation has morphed into a strange thing.
00:10:38.060And they and I, and I agree with them about an awful lot of things, they don't want to live in a country, this country anymore, because of what it's become, and how the people in the country, not all of them, but many of them, and probably most of them, now think about things.
00:10:59.800And so, to me and to them, I think there are no real alternatives now but to figure out a way to get out.
00:11:08.060You know, there are historic grievances that Alberta has, feeling underrepresented in institutions of power, doesn't have the right seat count in Parliament, the Senate is useless, the Supreme Court is tilted, all institutions of importance require you to be French fluent, and no one in the prairies is, etc.
00:11:28.160So, I could give you 100 grievances, some of which go back a century, but there's something new afoot.
00:11:34.260If Pierre Polyev had won the last federal election, I think that the independence movement would be on ice right now, because Polyev would not be making any of the conditions you've just described worse.
00:11:46.020He wouldn't be antagonizing Alberta, first of all, and he would maybe actually be solving some problems.
00:11:51.000But with Mark Carney and his plans to transform Canada, you know, unrecognizably, to say he wants to be part of a China-centric new world order, and actually use those words, to absolutely play to deep anti-Americanism, not only are Albertans, in my view, saying we're not comfortable where Canada is right now.
00:12:14.760Like you say, it's not what we recognize, but holy smokes, if Mark Carney is serious and successful, and Ontario and Quebec certainly want to see him succeed, Canada is going to be changed even more, it'll become even more unrecognizable.
00:12:30.660We don't want to be a China-centric anti-American country.
00:12:34.260By the way, 90% of Alberta's trade is with the US, probably more.
00:12:38.220So I think Carney's antics are making it worse, and especially, I know I'm talking too much here, Bruce, but I want to share with you my thoughts and get your reaction to them.
00:12:50.040When Matt Jenneru, the conservative MP, crossed the floor for some secret deal that we don't know the details of, to me that sent a particularly sharp message to Albertans, which is, even when you win by the rules, we're going to flip over the chessboard and not let you win.
00:13:06.660We're going to pull some trick, some schemes, some backroom deals, so you can't win.
00:13:19.660And the whole regime media are praising Mark Carney for this move of bribing backbenchers to come over.
00:13:26.220And they're actually saying, ha ha, it's a sign that Pierre Polly have his poor leadership because he can't stop our bribing of his people.
00:13:32.780I just think all of these things bundled together, people say, you know what, I'm out.
00:13:52.580The economy is basically a collection of cartels supported and protected by governments.
00:13:57.640I think this is deeper than sort of short-term partisan politics.
00:14:05.340And I know you're not saying that it is, it's that.
00:14:08.800But I think we need to take the broad view in mind.
00:14:13.320But nevertheless, there is something to it.
00:14:15.820So I think a lot of people in Alberta, and of course, not all Albertans, because Albertans are very split on this as well.
00:14:22.200But there's a critical mass of people in Alberta, I think, that were incredulous after the last election, having suffered through a decade of Justin Trudeau and seeing the rest of the country.
00:14:34.620Well, maybe not all the rest of the country, but the voters in the eastern parts of the country elect the same government again.
00:14:44.040And at the time that Justin Trudeau was elected, the per capita wealth of the country was comparable to the U.S.
00:14:53.600And now on a per capita basis, Canada is poorer than Alabama and almost as poor as Mississippi, the poorest state in America.
00:15:05.100This is something that we've done to ourselves.
00:15:06.560And yet it is, it seems to be the determination, especially as a reflection of the way the country is structured in terms of its seats and so on, that the country will, is determined to keep that particular ideology in power.
00:15:24.780After the last election, I had opportunity to listen to a conservative party strategist talk about what had happened.
00:15:33.100And, of course, they were unhappy to lose, but they were very happy, he said, with the numbers.
00:17:17.000They're not interested in fixing anything.
00:17:18.900They're on the same kind of bandwagon as all the other kinds of governments.
00:17:23.020And so I think it's a mistake to think that if we could only change governments or change the color of the governments, that we'd all be all right.
00:17:37.060I think Doug Ford's closest political relative was actually Justin Trudeau.
00:17:41.340Well, listen, let's you and me stop talking about politics for a bit, although I really enjoy it.
00:17:45.000Because I have four questions here suitable for a law professor, which you are.
00:17:49.480And I'm going to put these to you, and I know that you're going to have a good answer for them, because I think you've been thinking about these more than almost anybody else.
00:18:00.080Can you tell our viewers a little bit of what the Quebec precedent in the last separatist referendum in that province and the Clarity Act and the Supreme Court reference on secession, tell me where that leaves Alberta.
00:18:16.980My American friends are surprised that secession is legal in Canada, because that, of course, was the rationale behind the Civil War, because the South was seceding.
00:18:46.940And essentially, the requirements are a referendum with a clear question supported by a clear majority.
00:18:56.420If you get that, then the province in question, and they were talking about Quebec, of course, but the province in question has a mandate then to negotiate its departure.
00:19:06.800It does not attain a unilateral right to leave on its own terms, but nor does the rest of the country, including the federal government, have a right to stop it.
00:19:17.680What happens at that point is a mandate to negotiate.
00:19:21.080The Supreme Court was very explicit about this.
00:19:23.520It said that once you get to that point, the negotiation that transpires is a political negotiation and not a legal one.
00:19:33.340And it said, at that point, no conclusion is predetermined by law on any issue.
00:19:44.680In other words, everything is now on the table.
00:19:46.640There are certain kinds of things you must take into account.
00:19:50.740That's the phrase they use, take into account.
00:19:53.240But take into account means that you put it on the table and you talk about it.
00:20:31.100We need a moment to try to rethink how the country is governed.
00:20:35.320An opportunity to create a new and different kind of constitution because a lot of our problems derive not solely, not entirely, but to a significant extent from the way our constitution is built.
00:20:53.780And that has become impossible to change in any sort of fundamental controversial way.
00:20:59.480A few weeks ago, I went through an Indian treaty, Treaty 6, which I could have chosen other ones, but that was just one of them that covers parts of Alberta.
00:21:13.680And it's a fascinating historical read how they did it.
00:21:17.600They went out trying to get groups of Indians together and find elders, and they kept finding new Indians that they added to the treaty as they went.
00:21:25.640And they used fairly plain language, and they had incredible specificity.
00:27:05.040In the UK, in England itself, it was de facto not upheld.
00:27:14.300The judges basically said, we're not going to, I mean, it was interesting where slavery was stronger and weaker in the British Empire.
00:27:20.120But if I'm not mistaken, in the final disposition of the matter, the United Kingdom, the British Empire, borrowed a staggering sum of money.
00:27:30.300As a percentage of their GDP, it would be equivalent to a quarter of a trillion dollars by today's GDP in terms of purchasing power.
00:27:38.940They borrowed a quarter of a trillion dollars in that long ago money, and they bought the freedom of the slaves.
00:27:47.060Now, some people would say, why didn't you give the money to the slaves?
00:27:50.160Well, the answer is because you had hundreds of thousands of businesses and business people who had thought that they were following the law.
00:27:59.420And they maybe would have had a legal case.
00:28:02.080So they just bought the, they redeemed the slaves.
00:28:04.360And by the way, that enormous loan was not paid off until the 21st century, I should tell you.
00:28:10.260What about, and I'm just brainstorming here, you just made me think of that.
00:28:13.560That was a way to end slavery without having people say, hey, you stole my slaves.
00:28:19.040I invested, like, at the time, I'm sure it was considered quite progressive.
00:28:24.580What if you said to everyone who is governed by the Indian Act, we're going to, the land in your reserve will apportion to the people there.
00:28:34.160That you can deal with, but the ongoing obligations for the, you know, if you read the treaties for seeds and tools and things like that, 50,000 bucks each, a final liquidation of your rights.
00:28:47.860And now go to school paid for by the government like the rest of us.
00:28:52.560Go to hospitals paid for by the government like the rest of us.
00:29:07.940Because I think that, frankly, if you said to a lot of people under the Indian Act, would you take 50 grand, by the way, family of four, that's 200 grand.
00:29:20.560I think you could extinguish an issue that's going to blow up British Columbia, and I think you could have a great fresh start.
00:29:30.000Well, the first idea that you mentioned is an idea that I've suggested myself, which is that people who belong to bands who have reserves, you know, in the event of Alberta independence, one of the ways to approach that is to take those reserve lands and split them up into lots and to assign a lot to each member of that band so that they have their own properties.
00:29:55.980This is the thing about the way aboriginal law, about the way reserves work, the way aboriginal title works.
00:30:03.480None of the individual members of those groups have property.
00:30:07.460It is a group right and controlled by the leadership of the group.
00:30:13.060And so it looks like, you know, they're getting all these benefits, and they are getting benefits of a sort, but they don't have control.
00:30:19.180They don't have agency over their own property.
00:30:22.120And so this is one of the ways to fix that.
00:30:23.980But in the other respects, though, we should just acknowledge this.
00:30:29.860It is the case already today that members of aboriginal groups, whether they are treaty groups or not, have full Canadian rights.
00:30:41.880If you choose, you know, not to live in a reserve, if you choose to live in a city or anywhere for that matter, an aboriginal person has the same rights and privileges as any other Canadian citizen, right, to own property, to vote, to hold a job, to marry, to divorce, and so on and so forth.
00:31:00.680So it is not that today even that aboriginal people are being denied those rights and have another set of alternative rights.
00:31:10.560It is that everybody has the same basic rights, and then there is this other thing going on.
00:31:17.280And what I'm suggesting is that the other thing should stop, because it is creating dependency, it is creating oppression, it is creating grift.
00:31:27.360And all those things are to the detriment of the people that it's designed to protect.
00:31:33.500But if we have time, there's a problem lurking with respect to the independence quest, and that is that the referendum that Danielle Smith has announced for October looks to be one thing and is actually threatening to be quite something else.
00:31:54.300On October 19th, Alberta will hold a referendum that will ask the people of Alberta a whole series of questions, a series of policy questions, and a series of constitutional questions.
00:32:06.420Those questions look to be very important to, you know, the way, the track that Alberta chooses to be on.
00:32:45.600And the outcome of a referendum on independence will depend upon that middle third.
00:32:50.480There are an awful lot of Albertans who are not happy with the status quo in this country, but they're not quite convinced that independence is the way, yet they're not quite ready to ditch the country.
00:33:03.440So here's how the referendum will work.
00:33:06.040They are going to be given a whole series of questions that look like Alberta has a third choice.
00:33:14.140And the third choice is that we'll fix these policy areas, and then we'll vote on these four or five constitutional amendments, like one of them, for example.
00:33:24.580How about we abolish the un-elected senators?
00:33:29.000And this middle third of Albertans may well think that there is a third choice.
00:33:39.100We can fix things, but not have to leave the country.
00:35:31.220Now, the Supreme Court said that one of the requirements is a clear question.
00:35:40.160And that's what the Federal Clarity Act is about, requiring a clear question in a referendum.
00:35:44.940Now, the fact that the question is going to be put into the ballot in October doesn't change the question.
00:35:51.200The question itself is still as clear as it was.
00:35:54.240But when you combine it with the other questions, well, now you've got a mess.
00:35:59.340Because some of those other questions are questions that imply that the voter wants Alberta to stay in Canada.
00:36:07.020So, for example, here's one of the constitutional questions.
00:36:09.860Do you agree that provinces, including Alberta, should be able to decline to participate in federal programs within provincial jurisdiction,
00:36:22.160that is, for example, health care, while maintaining their access to the federal funding?
00:36:29.960You might well want to vote yes on that question to give Alberta control over health care with the federal dollars.
00:36:35.800But if that question is approved, and somehow the independence question is also approved, now you've got an interpretation problem.
00:36:45.180All right, now, do those voters want to stay in Canada to get the federal funding for health care, or do they want to leave?
00:36:51.940You know, which of those is first priority?
00:40:27.300By the way, I think, just speaking as a politically minded person, I think having the continuity of being part of the British Commonwealth,
00:40:36.700the king, the queen, the trappings of a governor general, I think that would give people a security.
00:40:45.320And it would be enough to deal with the sentimentality and the nostalgia and the history, which is, I think, the most valuable part of Canada.
00:41:00.820I think that that kind of security blanket is the thing that will turn on you in the end.
00:41:07.620So I think you have to reject the way things have gone until now because the way things have gone right now, they've gone very badly, very, very badly.
00:41:16.360And all of those protections – our constitution and the American one is a better example, a much better model.
00:41:23.920But these constitutions are based upon a checks and balances model.
00:41:28.560You know, we'll keep – we'll protect ourselves by creating, you know, different powers within the state to check and balance each other.
00:41:37.980You know, courts against executive, executive against legislature and so on.
00:41:41.740That worked pretty well for a while, especially in the states.
00:41:48.680When I was tracking down some of Mark Carney's holdings for Brookfield, like I went to these tax havens of the Isle of Man,
00:41:56.400which is this little island between Ireland and the UK, and I went to Bermuda, which is this little speck in the North Atlantic actually.
00:42:06.380And both had their own currencies and both had a bit of a vibe of the Commonwealth, but they were pretty free and they were small and very independent-minded places.
00:42:29.760So I just – in my very brief visits to those two places, I saw wouldn't that be fun if Alberta had a currency with the king on it
00:42:41.560and other things that told us we were part of a longer tradition, but like the Isle of Man or Bermuda, we had our own freer rules.
00:42:49.340Like the one thing about both those places is they have more freedom, at least economically, which is why Mark Carney stashes his dough there.
00:42:57.140Anyways, that was just a personal anecdote.
00:43:03.480It's my view that most of the things in anyone's lives, daily lives, would be unaffected by independence.
00:43:10.420When you think about it, what's your interaction with government?
00:43:13.360Well, government services like garbage pickup or paving or police forces or hospitals or schools.
00:43:20.100Like I think that just encapsulates so much of an ordinary person's life and all of those things are subject to provincial jurisdiction.
00:43:27.060There really wouldn't be a lot of changes.
00:43:29.120A lot of the stuff the feds do is just irritants, like they're foreign policy.
00:43:33.700It doesn't – we don't actually have any, you know, horses that can do anything, which just – and so we would be free of a lot of the crap of the feds.
00:43:42.440But one of the things is our legal system.
00:43:46.080Some of our courts in Alberta are appointed by the federal government.
00:43:51.720The judges – I was just reading a stat the other day how all but – a great proportion of our judges on the Court of King's Bench and the Court of Appeal are liberal appointees.
00:44:03.320It's sort of crazy that a foreign – a foreign – a faraway place like Ottawa ruled by –
00:44:27.140They were appointed by a proper legal process, but now they're disconnected to that.
00:44:33.440What do you do with all those federal judges?
00:44:37.300Well, one of my proposals in this proposed constitution that I've drafted is that everybody who works for the state in any capacity, whether they're judges or politicians or bureaucrats or consultants, employees, ambassadors,
00:44:54.040only work for the state for a very limited amount of time.
00:44:59.940You can pick a random number, six years, eight years.
00:45:03.360But when you've done that time, you're finished.
00:45:24.240What we're trying to do there, what I'm trying to do there, is to create or to prevent the creation of a professional ruling class.
00:45:35.220Our judges who are appointed until age 75 to the Supreme Court of Canada, those nine people in the Supreme Court, can dictate the meaning of the Constitution and sit on that bench for years in some cases.
00:45:51.040You've established an authority that is untouchable by voting, by dismissal, by review, whatever they say goes.
00:46:02.940And so in order to prevent the creation of a professional ruling class, you create instead a revolving door where people come in, they serve, they get out.
00:46:13.040There is nobody entrenched inside the state, whether it's in the courts or the bureaucracy, the deep state or the legislative chambers.
00:46:20.340There are no interests to go and appeal to that have their claws into the machine because they're there and then they have to leave.
00:46:29.180And so in this way and so many other ways, what you're trying to do is dilute, dilute the power of people who act on behalf of the state to prevent them from dictating to the rest of us, you know, what the story is going to do.
00:46:45.380Well, that'll be interesting because one of the things a judge might argue is the longer they're on the bench, the more like being a judge, the older and the wiser, perhaps.
00:46:57.860I mean, it could also be, well, they're immune from democratic accountability.
00:47:02.040But sometimes, I mean, one of our difficulties, if I can just insert this, one of our difficulties that has arisen in the modern era, in this era of the managerial state, one of the problems that we have embraced is a belief in expertise.
00:47:24.000In other words, those people who know best should be the ones deciding for the rest of us what to do.
00:47:32.320And that's not just in the courts. It's also very much in the bureaucracy.
00:47:36.960We think that people who know best should be making the rules and the policies and the decisions about how people should behave.
00:47:43.780That is one of the sources of our problem.
00:47:47.140There's an original idea about judges, and that is that one of the reasons a judge is, you know, is well-placed to make decisions about all kinds of things is that they know nothing about them, nothing about them.
00:48:04.960You can make a decision in a case about a contract for seeds because you know nothing about seeds.
00:48:12.480And everything that you know about seeds by the end of the case, you've learned from the witnesses on the stand in the room and nothing else.
00:48:19.740And so one of the good things about judges is it's supposed to be, you know, blank slates.
00:48:25.440But more and more, we look to expertise to man our courts, to man our tribunals, to man our bureaucracies, and so on.
00:48:34.800And for my money, that's the wrong track.
00:48:38.980Well, it was William F. Buckley Jr. who said he'd rather be ruled by the first hundred names in the Boston phone directory than the faculty lounge at Harvard, which was an interesting thing for him to say a generation ago.
00:48:49.880Last question. It's not a legal question.
00:49:03.880I'm not sure I can give you a call on that.
00:49:06.640I think with my concern is that with the referendum as it is presently conceived, the way that Danielle Smith has announced, my concern is that the answer to that question will be no.
00:49:19.040Because there will be enough Albertans persuaded that there is a third way so that they can fix Alberta's problems but not have to leave the country.
00:49:30.900I'm afraid that they will be taken in by that possibility and they will avoid providing Alberta with the leverage that is required to actually get serious reform to the country.
00:49:45.440The powers that be in this country, and there are a lot of them, and they're very deeply embedded, will not allow any kind of serious, fundamental, basic reform to the way this country works.
00:50:00.320And to believe that that's possible, I think, is a bit naive.
00:50:05.180Is there a website where people can see your stuff?
00:50:21.600Thanks for spending so much time with us.
00:50:23.060It's always good to talk to an Ontario law professor about Alberta independence, but I'm delighted that you're bringing your intellectual firepower to the matter.
00:50:31.780Thanks for taking so much time with us.