Judge says proposed referendum on Alberta independence would be unconstitutional

An Alberta judge says a referendum proposal on Alberta separating from Canada goes against Charter and and Treaty rights, in a decision given less than 24 hours after the provincial government introduced legislation that would have ended the court proceeding.

Once Bill 14 came into force, the court action would have been discontinued, preventing Court of King's Bench Justice Colin Feasby from issuing a decision, even though several days of arguments had already been presented.

The proposed referendum question, submitted by Alberta resident Mitch Sylvestre, is "Do you agree that the Province of Alberta shall become a sovereign country and cease to be a province in Canada?"

Feasby's decision concludes that the referendum proposal contravenes several sections of the Constitution Act. He added that this doesn't mean the Constitution can't be amended or that Alberta can't hold a referendum on separation.

The question, referred to the courts by provincial chief electoral officer Gordon McClure, "engages" with the Constitution, Feasby said, but "this case does not conclude that the constitution prohibits anything; this decision is only about whether the referendum proponent’s constitutional referendum proposal is allowed by the [Citizen Initiative Act]."

In his ruling, the judge said Alberta's Citizen Initiative Act, as it was before the proposed changes under Bill 14, "did not give citizens the power to initiate a referendum on the question of independence from Canada."

The Citizen Initiative Act will see a number of changes under the amendments proposed in Bill 14, including removing a provision that a proposed referendum question can't contravene the Constitution.

After arguments from lawyers representing a final group of First Nations who were granted intervenor status in the case, Feasby issued his decision from the bench Friday in the Calgary Court of King's Bench.

He added what he called an "epilogue," which specifically addressed the impact of the proposed legislation.

"The legal consequence of discontinuing this proceeding prior to a decision would be to silence the Court," he said.

The judge called the move to change the legislation antithetical to the rule of law and democracy.

"The public is entitled to the fruits of this process that has been conducted largely at their expense so that if they are asked to vote on Alberta independence, they have a tool that may help them make sense of the legal dimensions of the secession of Alberta from Canada."

Feasby noted that the court case had been prioritized at the expense of other justice system participants waiting for their cases to be heard.

"Alberta’s cavalier disregard for court resources and lack of consideration for the parties and First Nations intervenors who participated in this proceeding in good faith is disappointing to say the least."