Alberta’s Chief Electoral Officer, Gordon McClure, has received a proposed constitutional referendum question: “Do you agree that the Province of Alberta shall become a sovereign country and cease to be a province in Canada?”Gordon McClure has gone to court to ask a judge’s opinion on whether a referendum on Alberta separation would violate Canada’s constitution.Mr. McClure claims that his court application is necessary because section 2(4) of Alberta’s Citizen Initiative Act states that an initiative proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982, sections which include the Charter and Aboriginal rights..STEPHAN: Alberta does not need French.If citizens drafted a new provincial law to prohibit criticism of religion, that law would violate freedom of expression as protected by section 2(b) of the Charter, and the Chief Electoral Officer might want a court’s opinion on the initiative, before it’s put to citizens in a vote.In contrast, a proposed referendum question on Alberta leaving Canada has already been approved by the Supreme Court of Canada, in Reference re Secession of Quebec. While this 1998 ruling specifically refers to Quebec, the constitutional principles articulated by the court were not Quebec-specific. They apply to any province wishing to leave Canada. In like manner, the federal Clarity Act expressly refers to “a clear expression of the will of the population of a province” (not just “Quebec”) on whether “the province” (not just Quebec) should cease to be part of Canada and become an independent state..A clear majority vote in Alberta on a clear question in favour of separation would confer democratic legitimacy on the secession initiative, which the rest of Canada would have to recognize. The Supreme Court of Canada has ruled that the other provinces and the federal government would have no basis to deny the right of the government of Alberta to pursue secession.After a “yes” vote to separation, negotiations would take place to address the interests of Alberta, the other provinces, the federal government, and the rights of all Canadians both within and outside Alberta, including individual rights and the rights of minorities. This difficult negotiation process would need to respect two legitimate majorities, namely, the majority of the population of Alberta, and that of Canada as a whole. .THOMAS: Mayor Gondek’s fairy tale version of blanket upzoning .The Supreme Court also ruled that it will be for politicians – not judges – to determine what constitutes "a clear majority on a clear question" in a referendum vote. As explained by the Supreme Court: “The task of the Court has been to clarify the legal framework within which political decisions are to be taken ‘under the Constitution’, not to usurp the prerogatives of the political forces that operate within that framework. The obligations we have identified are binding obligations under the Constitution of Canada. However, it will be for the political actors to determine what constitutes ‘a clear majority on a clear question’ in the circumstances under which a future referendum vote may be taken.”In other words: politicians should craft the referendum question, without input from courts..The Supreme Court also ruled that courts should not be involved in supervising the negotiations after a vote to leave Canada: “Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.”If the majority of Albertans vote to leave Canada, once the important details of separation are negotiated and finalized, and Alberta has actually left Canada, the new country would then adopt its own constitution. Albertans would no longer be subject to Canada’s constitution at all. Alberta’s new constitution would likely differ from Canada’s constitution, for example, by potentially including the right to own and enjoy private property, a basic right not protected by the Canadian Charter of Rights and Freedoms. Also, Alberta’s new constitution might not have a provision like Section 1 of the Charter, which allows judges to approve and endorse the government’s violations of fundamental freedoms like speech, association, religion, conscience, peaceful assembly, etc. .Economic case for Alberta-Saskatchewan independence.As a new country, an independent Alberta would not be subject to the Canadian Charter of Rights and Freedoms, or any other part of Canada’s Constitution. The Supreme Court has already made it clear that a separation referendum is entirely compatible with Canada’s constitution. It therefore makes no sense for the Chief Electoral Officer to ask a court whether a referendum on Alberta independence would violate certain parts of Canada’s constitution.A referendum on Alberta leaving Canada is not a proposal that contravenes Canada’s constitution, because Canada’s constitution expressly allows for a province to leave Canada. Gordon McClure is asking a question that has already been answered – clearly and decisively – by the Supreme Court of Canada.John Carpay, B.A., LL.B., is president of the Justice Centre for Constitutional Freedoms (jccf.ca)
