Judge to proceed with review of Alberta separation question | CBC News

A judge says he must hear arguments and rule on whether a proposed Alberta referendum question on separating from Canada is constitutional because it’s important for democracy.

“The citizens of Alberta deserve to have these arguments made properly and heard in full,” Court of King’s Bench Justice Colin Feasby said in his decision on Thursday. “Democracy demands nothing less.”

Alberta’s Citizens Initiative Act allows an elector to propose a question to put to a public vote, if they can gather enough signatures in support within a set timeframe.

Alberta’s chief electoral officer, Gordon McClure, referred the question to court last month so a judge could determine whether it violates the Constitution, including treaty rights.

The group that submitted the question applied to have the court referral quashed.

Mitch Sylvestre, executive director of the Alberta Prosperity Project, wants to ask: “Do you agree that the province of Alberta shall become a sovereign country and cease to be a province in Canada?”

Feasby’s ruling said it’s unclear whether the substance of that question is constitutional.

Sylvestre’s lawyer, Jeffrey Rath, argued judicial scrutiny is premature, since there’s no guarantee enough signatures would be gathered to put the proposed question on a ballot.

He also said the act of asking a question doesn’t violate the Constitution.

Feasby rejected those arguments, saying provincial law only allows the chief electoral officer to refer the question to the court at this stage of the process.

Feasby said other jurisdictions that allow citizen-initiated referendums follow similar practices to ensure questions are legal before citizens vote on them. He said deciding early in the process whether a question is accurate and constitutional could potentially save money and time.

“Democracy flourishes when citizens have clear and accurate information,” Feasby said.

Lawyers for Alberta Justice Minister Mickey Amery and the chief electoral officer did not take a position on quashing the referral.

Amery and Premier Danielle Smith have criticized the electoral officer’s decision to refer the question to the court, saying it should be approved and only face judicial scrutiny if it garners a majority vote in a referendum.

“Alberta’s government believes that the proposal is not unconstitutional and therefore should be approved and permitted to proceed,” Amery’s acting press secretary, Nathaniel Dueck, said in a statement Thursday.

He said the minister would refrain from further comment while the matter is before the court.

A letter from Amery’s lawyer to the judge last week said the minister plans to make submissions if there is a review.

Feasby also accepted the chief electoral officer’s recommendation to appoint “friends of the court” with expertise in constitutional law.

The judge appointed University of Alberta law Prof. Eric Adams and Edmonton lawyer Matthew Woodley to argue why the proposed question could be unconstitutional. They will also be asked to identify potential weaknesses of those arguments.

Judge prioritizing evidence from Indigenous interveners

McClure also proposed that Elections Alberta put out a call for interveners in the legal case.

Feasby said the number of people affected by the case is “enormous.” As a result, he will limit interveners to those who can convince the court their participation won’t delay the process.

He said the only interveners who can provide evidence are First Nations representatives, to demonstrate how their treaty rights might be infringed.

Athabasca Chipewyan First Nation Chief Allan Adam says his northern Alberta community will apply for intervener status. 

After the hearing, Adam said outside the Edmonton courthouse that the judge’s decision to rule on the question’s constitutionality is a “great win for Canada.”

Adam said the premier and her cabinet need to stop humouring separatists and focus on improving health care, education and infrastructure in the province.

“Start building relationships with Albertans, and First Nations, and start building a relationship with Canada, instead of dismantling the whole process and causing confusion,” he said.

Separatists say case gives them new platform

If Sylvestre’s proposed question is approved, his organization, the Alberta Prosperity Project, would need to collect 177,000 signatures within 120 days to get it on a referendum ballot.

A competing referendum question was approved by McClure in June that asked: “Do you agree that Alberta should remain in Canada?”

Efforts to gather signatures for that proposal, put forward by former Progressive Conservative deputy premier Thomas Lukaszuk, got underway earlier this month.

He needs to collect nearly 300,000 signatures in 90 days in order to get his question on a ballot, as his application was approved before new provincial rules with lower signature thresholds took effect.

Outside court on Thursday, Lukaszuk said he has about 2,000 volunteers working to collect signatures in person. He didn’t know how many signatures they had collected.

Lukaszuk, who also plans to apply to be an intervener in the court reference case, said the judge’s decision upheld the independence of Alberta’s chief electoral officer from government.

“Albertans shouldn’t have to be signing any petitions to reaffirm our allegiance to Canada,” Lukaszuk said.

Rath said after court he knew convincing the judge to throw out the query would be an uphill battle.

Rath said he had yet to hear an argument about how posing a question that amends the Constitution could be unconstitutional.

“It’ll give us a lot more opportunity to continue to talk to our fellow Albertans about the benefits of independence,” Rath said.

Feasby and the lawyers present in court Thursday agreed to timelines in which parties will file written arguments to the judge. Feasby said the next hearing will be on the week of November 15.

The judge said he intends to make ruling before the end of 2025.