Why referendums don’t always produce constitutional change
Some reflections following Alberta's vote on the principle of equalization.
Like many Albertans, on October 18, 2021, I ventured to a nearby school to cast my ballot in elections for mayor, city counsellor, and school board trustee. A separate ballot asked me to vote for who I wished to see appointed to the Senate of Canada, and whether I was in favour of observing permanent daylight-saving time. My pencil also hovered over a final ballot question asking me whether I wished to amend the Constitution of Canada.
The referendum question about whether section 36(2) – the federal commitment to the principle of equalization – should be removed from the Constitution Act, 1982, likely caught some voters by surprise. Through much of 2021, Alberta’s foray into the law and politics of constitutional change was a relatively quiet affair. There were, of course, a handful of op-eds in the days and weeks preceding the vote, but no prominent debates, no yard signs, and very little advertising one way or the other. In discussing the referendum in my Constitutional Law class this fall, one of my students incredulously asked me, “why haven’t I heard anything about this?”
The constitutional referendum may have been devoid of fanfare, but its appearance as a strategy of constitutional politics was long in the making. The initial idea appears traced to Ted Morton, a political scientist and former Alberta cabinet minister. Morton opined that the Supreme Court of Canada’s 1998 advisory opinion in the Secession Reference could be applied to any constitutional referendum. He theorizes that if a clear majority votes yes on a clear constitutional question on any topic, the Government of Canada and the provinces are bound by a “duty to negotiate” a change to the Constitution.
When campaigning to lead the United Conservative Party, and again on the hustings prior to Alberta’s 2019 provincial election, Jason Kenney adopted the Morton thesis as part of his platform, and often referred to the potential referendum in his stump speeches. After becoming premier, his government’s “Fair Deal” panel also endorsed the plan of a constitutional referendum.
But what precisely was at stake? As Albertans approached referendum day in October, the government’s message about what we were voting on blurred to the point of opacity. The premier frequently explained that Albertans were simply voting to demand fairness, or a fair deal from the federal government.
In a press conference before the vote, Premier Kenney claimed, in fact, to be in favour of the principle of equalization, but urged Albertans to vote yes in the referendum seeking its removal from the Constitution to gain bargaining leverage with the federal government concerning other policy initiatives. Just as confusingly, the government often invoked the Secession Reference as supporting the government’s claims that a “binding obligation” to negotiate constitutional change would follow a positive referendum result.
Most Albertans opted not to participate. Approximately 39% of eligible voters in Alberta cast a ballot in the constitutional referendum on equalization. That voter turnout looks particularly modest when compared to the over 93% of eligible voters participating in the 1995 Quebec referendum on secession, and the more than 71% of eligible Canadians that voted in the referendum on the Charlottetown Accord. Access to voting in the Alberta referendum was also problematically unequal for many Indigenous Peoples, given that there were no voting opportunities available on First Nations reserves. Of the votes cast across the province, 61.7% voted in favour of seeking the constitutional change of removing the federal commitment to the principle of equalization. Perhaps predictably, Alberta’s two largest cities, Edmonton and Calgary, disagreed in the results: 52% of Edmontonians voted no to the proposed constitutional change, while 58% of Calgarians voted yes.
If the precise impact of a yes vote appeared uncertain in the days leading up to the referendum, it remained equally so afterwards. Although Premier Kenney argued that the outcome led to a “binding obligation to negotiate that proposed amendment in good faith,” he explained that he would demand negotiations that had nothing whatsoever to do with the abandonment of the principle of equalization, but rather the repeal or amendment of unconnected federal environmental legislation he disagreed with. The referendum result was fundamentally about the pursuit of respect, the premier claimed.
Although many initially wondered whether the low voter turnout could constitute a clear majority in the sense used in the Secession Reference, the whole question is beside the point. The Secession Reference provides guidance in the context of a very specific type of constitutional crisis, one extending from a referendum vote on secession. As a close reading of the judgment makes clear, the vast majority of its analysis is specific to the secession context. Hence the Supreme Court contemplates a process wherein the threat to the fundamental constitutional order posed by a positive secession vote requires negotiation among all provinces and the federal government to lead to constitutional change to deal peaceably with the crisis at hand.
Outside of the context of a secession referendum, The Secession Reference confirms what the amending formula of the Constitution Act, 1982 already provides. Every province can initiate a process seeking constitutional change. That’s how a constitutional democracy with federal arrangements works. Like any other province, Alberta has every right to seek any manner of constitutional changes. It has now done so since its legislature has passed a formal resolution seeking a constitutional amendment to remove the principle of equalization, thereby initiating the general amending process contemplated under s. 38(1) of the Constitution Act. What is required to make the amendment happen is matching resolutions of the Senate and House of Commons and at least seven provinces.
The requirements are likely more onerous than that since the federal Constitutional Amendment Act indicates that the federal government would not support any such resolution without the support of the legislatures of Ontario, Quebec, British Columbia, Alberta, and two provinces from Atlantic Canada. In other words, the prospects of the removal of the principle of equalization from the Constitution looks about as likely as my boyhood dream of playing for the Edmonton Oilers.
The Secession Reference advises that any province initiating the process of constitutional amendment, as Alberta has now done, gives rise to responsibilities on the other parties to the federation “to acknowledge and address democratic expressions of a desire for change in other provinces.” If our Constitution is to be subject to amendment, and it wisely is, then it only makes sense that such a process requires what is always true of a functioning federation: that governments at least listen to one another when one province is advocating for a change to Canada’s “supreme law.”
For the moment, that listening is where this constitutional story seems destined to end. The other provinces and the federal government will receive notice of Alberta’s resolution seeking to remove the principle of equalization from the Constitution and decide whether they wish to sign on. I suspect Alberta already knows it’s dancing alone at its own constitutional party. The topic may also be the subject of a future First Ministers meeting, although perhaps not for long since support for this particular change is not widespread, and perhaps isn’t even favoured by Alberta itself.
Constitutional history doesn’t repeat itself, but it sometimes sends echoes. Almost 30 years ago, 61.8% of voters in New Brunswick voted in favour of changing the Constitution of Canada in the Charlottetown Accord referendum. New Brunswick’s referendum result changed nothing, of course, because the collective elements of Canada’s Constitution can only be amended with broad and deep support across the country. No provincial referendum, whatever the result, alters that constitutional fact.