Bruce Pardy is executive director of Rights Probe and professor of Law at Queen’s University.For Alberta separatists, the Alberta government has fixed a problem and created a new one. In an October column for the Western Standard, I urged the government to repeal section 2(4) of the Citizen Initiative Act. That section prohibited Albertans from proposing a referendum on independence. It tied up the Alberta Prosperity Project’s (APP) proposed question in the courts. On December 10, the Alberta legislature passed Bill 14, which repealed section 2(4). Credit to the UCP government where credit is due. Full steam ahead on collecting signatures for the proposed vote. It will be held, hopefully, in late 2026..MARTYN: No apologies. Canada was built, not stolen.But in the same bill, the government gave itself a new power. If the people vote “yes” in an independence referendum, the government can now decide not to implement the results. It doesn’t say so in those words. But that is what the new section means. Bear with me.Section 2(4) said that a referendum proposal “must not contravene sections 1 to 35.1 of the Constitution Act, 1982.” Sections 1 to 34 are the Charter of Rights and Freedoms. Sections 35 and 35.1 relate to Aboriginal rights. A referendum question “contravenes” the Charter and Aboriginal rights when it proposes to do away with them..That’s what an independence referendum would do. To become independent means to leave your country and its constitution behind. Separation entails “clear repudiation of the existing constitutional order”. So said the Supreme Court of Canada in its 1998 Reference case decision about Quebec. The Charter applies to Canada and its provinces. An independent Alberta would not be a province. The Charter and section 35 would not apply. In effect, the CIA forbade an independence referendum. As some of us expected, Justice Colin Feasby of the Alberta King’s Bench confirmed that. He released his judgment on the APP question the day after the government introduced Bill 14. It said that the APP’s referendum proposal contravenes sections 1 to 35.1. “[I]ndependence would require the replacement of the Canadian constitution, including the identified sections, with a new Alberta constitution. ...[The CIA] “did not give citizens the power to initiate a referendum on the question of independence from Canada.”.PINDER: The meaningless MOU.This was a made-in-Alberta obstacle. The federal government didn’t cause it. The federal Clarity Act didn’t create it. It was not because of the Supreme Court of Canada’s reference case about Quebec. The question was not whether Alberta can hold an independence referendum. It can. The issue was not whether holding an independence referendum is constitutional. It is.The Alberta court was not meddling in the process, as some have suggested. Justice Feasby was doing the job that the statute assigned. Alberta’s own law was the problem. Thanks to Bill 14, the CIA no longer forbids proposing a referendum on independence. But the problem has not gone away. Instead, the government has given it a different form. Bill 14 has moved it from the beginning to the end of the process. The final provision of Bill 14 amends the Referendum Act..That’s the statute under which a referendum would be held. Before Bill 14, under the Referendum Act a successful independence referendum would have been binding on the government. But not anymore. Bill 14 says the government is not required to implement the results of a referendum “if doing so would contravene sections 1 to 35.1 of the Constitution Act, 1982.” Those are the same words that caused the trouble in the repealed section 2(4) of the CIA. Independence “contravenes” sections 1 to 35.1. If Albertans vote to leave Canada, the Alberta government now has the power to refuse. I put this question to Alberta’s Minister of Justice Mickey Amery last week, during an interview hosted by Jason Lavigne. “You've reserved for the government the ability to be a gatekeeper at the end of the process,” I said, “the ability to say, we don't want to do it [pursue independence even with a “Yes” vote].” The Minister responded, “In theory that could happen.”.BOWYER: Recall petitions miss the mark — the real issue is our Westminster system.Would the government dare? If 60% of Albertans voted for independence, refusing to move forward could be political suicide. But if the referendum was narrowly approved by 50% plus one, the story might be different.Premier Danielle Smith has consistently identified “a sovereign Alberta inside a united Canada”, as her mandate. A government committed to that outcome that might well repudiate a referendum win for independence.A “binding” referendum on independence, says the new law, is not binding at all. The government can reject independence even if the people vote for it. The independence goose might still be cooked, just with a different sauce. We won’t find out until after a successful referendum.Bruce Pardy is executive director of Rights Probe and professor of Law at Queen’s University.
