No independence vote because courts

The Alberta Government gaslights its way to an absurd tenth referendum question

Two recent Alberta court decisions do not prohibit an independence referendum.

But Danielle Smith is pretending that they do. She is hiding behind them. She and her people have repeatedly said that the May 13 decision from Justice Leonard of the Alberta Court of King’s Bench must be appealed and resolved before the independence question can be posed.

That is not correct.

It’s one of the main rationales Smith has given for the new, tenth question to be added to the October 19 referendum. “Should Alberta remain a province of Canada or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?”

She says she must do it this way because the courts have ruled that she can’t ask the independence question. Smith has said that she disagrees with the Leonard decision, but the “rule of law” requires that her government obeys it while appealing it.

She protests too much.

The Leonard decision, as well as the Feasby decision released in December, are both about the petition process under the Citizen Initiative Act. That Act sets out a way for citizens to trigger a referendum. But the Government of Alberta can decide to hold a referendum on its own under the Referendum Act. Both decisions acknowledged that it can. The Government does not need to use the Citizen Initiative Act at all. In fact, that’s what Smith has already done. She has scheduled a referendum for October 19 and selected ten questions for the ballot. She did not rely on the Citizen Initiative Act to do that.

These two court decisions did not deal with a referendum question chosen by the Government under the Referendum Act. Danielle Smith could decide to hold an independence referendum if she wanted to. That would not violate these court decisions. She is pretending that it would. Those decisions don’t apply to a government referendum. She is making up an excuse not to pose the independence question.

Now, if Smith announced an independence referendum under the Referendum Act, there’s no guarantee that aboriginal leaders wouldn’t challenge that in court too. But that would be a new case. It would be under a different statute. There would be a new judge.

The aspect of the Leonard decision that people seem most concerned about is its conclusion that the Chief Electoral Officer had a duty to consult aboriginal groups before the petition could proceed (and therefore before a referendum could be held). That’s an error by the judge. It’s an expansive and incorrect application of the duty to consult. It conflicts with Supreme Court of Canada jurisprudence. A new judge in a new case might or might not make the same mistake.

But let’s say that he does. Let’s say that a new judge in a new case under the Referendum Act says that the Government of Alberta cannot hold an independence referendum without consulting. In that case, the Government should consult. It’s not a big deal. Go ask aboriginal Albertans what they think about holding a referendum. The duty to consult is not an aboriginal veto. And in any event, polling has suggested that support for independence among the aboriginal population is strong. Don’t consult the leaders, but the people. Get on with it. It doesn’t have to take long.

Smith is using these court decisions as an excuse not to do what she does not really want to do anyway. Her tenth question is a hot mess. But not by accident. Here’s what the question does:

1. It provides the “Remain in Canada” side a free shot at shutting down independence on October 19 without risking an independence vote. If the “Remain” question prevails, the independence drive is over for the foreseeable future. There will be no independence referendum. But if “Remain” loses in October, it can try again if an actual independence referendum is ever held. Smith’s tenth question is not giving independence “more time”. It’s a risk-free chance to defeat it on October 19.

2. If “Remain” loses on October 19, the question provides, at minimum, a long delay. An independence referendum won’t happen for years. Smith has said that they must complete the appeals of the Leonard decision, including potentially to the Supreme Court of Canada. That would be 2028 at the earliest, and possibly longer. In the meantime, lots of other things could be found to get in the way.

Finally, even if “Remain” loses on October 19, even if an independence referendum is eventually held, and even if it is won, that is not the end of it. Smith still has her new section 4(3) of the Referendum Act, passed in December. That section says that the results of a referendum may be “binding”, but they’re really not. “If the results of a referendum are binding, the government that initiated the referendum is not required to implement the results”, the section says, if doing so would remove the application of the Canadian Charter of Rights and Freedoms and the section 35 guarantee of aboriginal rights. Which is what independence would do. Even if the people of Alberta, against the odds, get and approve an independence vote, Smith is not required to carry it out.

Alberta will not become independent with present provincial leadership at the helm.

Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.