Court Rejects Request to Bypass Judicial Review of Alberta Separation Question

A Court of King's Bench courtroom is shown at the Edmonton Law Courts building in a file photo. Jason Franson/The Canadian Press

An Alberta judge has ruled that a review of the constitutionality of a proposed referendum question on the province’s separation from Canada can move forward, saying that a vote with national implications requires a full hearing.

Court of King’s Bench Justice Colin Feasby delivered his decision on Aug. 14, a week after hearing arguments on whether the review of the question should be dismissed.

Mitch Sylvestre, an executive with the Alberta Prosperity Project (APP)—the referendum proponent—filed a motion to strike the review last week, with his lawyer arguing the referral for a review is “premature, unnecessary, and potentially unconstitutional.”

The question asks Albertans: “Do you agree that the Province of Alberta shall become a sovereign country and cease to be a province in Canada?”

The issue of the review stems from Alberta’s Chief Electoral Officer Gordon McClure referring the proposed question to the court in late July to assess its constitutionality, citing concerns over the question’s implications for the future of the province.

In his Aug. 14 decision, Feasby expressed similar reservations.

“A referendum on Alberta independence that could lead to the break-up of Canada is serious business,” Feasby wrote.

“The question of the constitutionality of the constitutional referendum proposal requires a full hearing where a broad range of perspectives on the issue can be presented to the Court,” he added.

“The Referendum Proponent’s motion to strike is dismissed because I conclude that it is not plain and obvious that the constitutional referendum proposal is constitutional.”

The hearing will allow interveners to present their perspectives and will involve the appointment of amici curiae—non-partisan individuals tasked with assisting the court in its decision-making.

Feasby said intervenors will be chosen to represent a broad range of perspectives to help keep the court process manageable. He also suggested lawyer Matthew Woodley and professor Eric Adams as potential amici curiae.

The judge said he will likely make a final decision by the end of the year.

The APP said the decision presents an opportunity to further inform the public about the issue of secession.

“This is not a loss,” Sylvestre said in an Aug. 14 press release. “Today’s decision now brings this issue led by the Alberta Prosperity Project, and many more pertinent topics, to international conversation—and that’s a great step forward for democracy as well as citizen engagement in politics.”

If allowed to proceed, the APP’s petition question would require approximately 177,000 signatures collected within 120 days to qualify as a referendum question.

The judge noted he was aware of concerns about potential delays caused by the review and said he is “committed to expediting the reference process to the extent possible consistent with procedural fairness.”

The Alberta government has said that while it does not support separation, the referendum question should be allowed to proceed as a citizen initiative. The attorney general for Alberta wrote to the Court to advise it of the province’s position, Feasby said.

“Alberta’s government believes that the proposal is not unconstitutional and therefore should be approved and permitted to proceed,” Heather Jenkins, spokesperson for Alberta’s justice ministry, told The Epoch Times in an Aug. 8 statement.

“It is settled law that any province is entitled to consult its population by referendum on any issue,” she added, noting that the government will not comment further as the matter is before the courts.

The federal government, represented by the country’s attorney general, did not take a position on the merits of the referral to review the question, Feasby said.

Decision

In his Aug. 14 decision, Feasby rejected the referendum proponent’s argument that the chief electoral officer’s referral was premature. The APP had argued the review was brought too early, as “no signatures have been collected. No vote is scheduled. No governmental action has been taken. Whether the proposal will proceed depends entirely on future, uncertain outcomes.”

Feasby cited a section of the Citizen Initiative Act, added by amendment a few months ago, dictating that the chief electoral officer can only refer a constitutional question to the court no later than 30 days after receiving an application for an initiative petition.

He said the potential benefits of an early decision on whether a referendum proposal is constitutional include saving the proponent from spending money gathering signatures for a question that might be illegal or unconstitutional, and preventing public money from being spent on it.

As for the constitutionality of the chief electoral officer’s decision to refer the question to the court, Feasby said the proponent’s argument that the referral infringes on the democratic rights of Albertans was not valid.

The referendum proponents had argued that the referral “imposes legal and financial barriers on the exercise of core democratic rights protected under ss. 1 and 3 of the Charter.” Section 3 relates to the right to participation in the democratic process, and Section 1 protects that right from unjustified infringement. Feasby noted that Section 3 only applies to provincial and federal elections, not to referenda or municipal elections.

Feasby said that determining the constitutionality of the referendum question involves broader considerations best addressed through a full hearing.

He pointed to mobility rights under Section 6 of the Charter as an example, noting that Canadians’ rights to “enter, remain in and leave Canada,” or to move and reside in any province, would no longer apply to Albertans if the province were to secede.

“The Court can only speculate as to how Alberta independence might contravene constitutional rights,” he said.

“The citizens of Alberta deserve to have these arguments made properly and heard in full; democracy demands nothing less.”