The pith and substance of Alberta’s referendum questions

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On October 19, Albertans will answer questions on complex topics including immigration, judicial appointments, voting rights, and whether to remain in Canada. How did the province get here? How likely is this process to result in clear mandates for the provincial government? And will any of it lead to substantive change?  

The trio of experts for this discussion: Gerard Kennedy, Associate Dean of the University of Alberta Faculty of Law; Karine Millaire, law professor at the Université de Montréal; and Stephen Thiele, Director of Legal Research at Gardiner Roberts LLP in Toronto.

Verdicts & Voices is a legal current affairs podcast presented by the Canadian Bar Association. With her retinue of expert guests, host Alison Crawford keeps listeners up to date on news, views, and stories about the law and the justice system in Canada.

Views expressed are not necessarily those of the CBA.

Transcript

Hello everyone. It's great to have you back for this week's episode of Verdicts & Voices, your legal affairs podcast, brought to you by the Canadian Bar Association. I'm your host, Alison Crawford. Next week, Albertans will vote in a referendum that asks if Alberta should remain a province of Canada, or should the provincial government kick off the legal process required under Canada's Constitution to hold another referendum on whether Alberta should separate from Canada. And many people might not know that that's the tenth question on that ballot.

Nine other questions seek public input on major constitutional questions pertaining to immigration, judicial appointments, how Alberta spends federal money, and who can vote in provincial elections. Joining me now to discuss the referendum and what lies ahead, possibly, is Gerard Kennedy, University of Alberta law professor and associate dean of the Faculty of Law. He is in Edmonton. In Montreal, we have constitutional expert Karine Millaire. She teaches law at l'Université de Montréal. And joining us from Toronto is Stephen Thiele. He's partner and director of legal research at Gardiner Roberts LLP. And he has specific expertise with election law. Welcome to the show, everyone.

Karine Millaire

Happy to be here.

Stephen Thiele

Thank you, Alison.

Gerard Kennedy

Great to be here.

Alison

Now, given that this is a podcast for people who really like to geek out on the law, I'd like to start by asking Gerard to explain how a petition that represented 14% of Alberta voters led to this referendum, because that's quite the journey.

Gerard Kennedy

It is indeed, and it's a many-stage journey. So under a law called the Citizen Initiative Act, a group of citizens can force a referendum of sorts by gathering a sufficient number of signatures. The threshold to trigger that referendum had been lowered by the Alberta government earlier this term, and one of the questions that a group which wants to leave Canada circulated was basically a flat-out separation question. By gathering a sufficient number of signatures, they triggered a process that was supposed to have the Chief Electoral Officer verify whether there were sufficient signatures, which in turn would turn matters over to the provincial cabinet to call the referendum. Now, there were court challenges to this, partially because there was an argument that the separation from Canada would have effects under the Constitution and that the Chief Electoral Officer couldn't accept an unconstitutional question. That in turn triggered a reference to the Court of King's Bench, but the government amended the legislation to basically make that problem go away. There was then a further challenge alleging that because the referendum – and more specifically, the accepting of the initial petition – triggered a process that would eventually lead into a binding referendum, that would affect Indigenous rights, and it was administrative action that triggered the duty to consult – that even that, without the statutory problem that Justice Feasby dealt with, posed constitutional problems. So after losing in court the second time… The petitioners lost in court the second time. The government defended the asking of the questions, even though they are not supporting separation.

Alison

How did we get to the government getting to the Referendum Act?

Gerard Kennedy

The Citizen Initiative Act is one way that citizens can force a referendum. Another way is for, and I'm oversimplifying things here greatly, but another way is for the provincial government to simply call a referendum under a Referendum Act. By making this decision, the government is acknowledging that it's its decision. Whereas under the Citizen Initiative Act, the government is saying, look, others are asking us to do this. The Citizen Initiative Act is more direct democracy. After the Citizen Initiative Act route posed problems, the government said there's enough support for this question, we should put it to the people. The question is not about whether or not Alberta should leave Canada. The question is about triggering a process under the Constitution that would lead to a subsequent binding referendum that would lead to Alberta leaving Canada. This is a way to avoid the calling of the referendum triggering the duty to consult.

Alison

Yeah. But it's kind of the same question, as regular people understand it.

Gerard Kennedy

I think many people are understanding it the same way, but I do think legally they are different. The first question possibly could have triggered obligations under the Quebec secession reference to negotiate the terms of departure. This is more: let's negotiate the terms of departure and then vote on whether or not we like them.

Stephen Thiele

So it's really a trial balloon question.

Gerard Kennedy

It's not unfair to say it's a trial balloon question.

Alison

I see. Well, maybe you can tell me how those other nine questions got on the ballot, because those were certainly not part of that initial petition.

Gerard Kennedy

Well, the other nine questions have also been put to the people under the Referendum Act. And they were actually announced before the separation question was. The Citizen Initiative Act process was going on in parallel, but the government hadn't called the referendum on separation. The government has asked nine other questions. Five relate to immigration, four relate to prospective constitutional amendments. The government wants a mandate to either make changes in policy, maybe with respect to the first five, or to negotiate constitutional amendments with respect to the latter four. The constitutional amendment ones in particular are seeking a more decentralized federation. And that is, I think, consistent with the government's argument that there should be greater provincial autonomy.

Alison

Yeah, except… Well, Karine, maybe we should jump in with you. Except what? What do you make of the questions?

Karine Millaire

Well, first, ten questions is a lot. And I think the first reaction was to think about, well, obviously the government wants to have some mandates to negotiate different constitutional amendments. But the first question we should ask ourselves is: are we really going to have, in any case, a clear mandate here, with a clear consent of the population and the voters, with all those questions? And I don't think so.

And I think there are four major reasons why it would not be possible to have clear answers here. First, there are too many questions on too many different, important and complex topics, which makes it very difficult for citizens to be well informed on every topic. And second, many questions are way too technical or complicated to understand, I think, for most of the population, for instance question nine on power sharing. Some questions are very –

Alison

That one is really long. And as someone who really believes in and trains people in plain-language communications, I don't think anyone could follow it. Let me read it, just so our listeners know. So follow along, everyone. Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to better protect provincial rights from federal interference by giving a province's laws dealing with provincial or shared areas of constitutional jurisdiction priority over federal laws when the provinces' laws and federal laws conflict?

What is someone supposed to do with that, Karine?

Karine Millaire

Well, this is a very good question, because I do teach constitutional law, and I can say that it's complicated even for law students that are very dedicated. But at first sight, to understand the power-sharing doctrines here, it's also about the double aspect, the paramountcy doctrines. The question does not even contextualize the fact that constitutional interpretation is conducted through the courts' decisions. It evolves with the courts' judgments, on a case-by-case basis, constitutional analysis. I think it's way too technical and complicated to have a clear answer and to be well understood here.

And this is only one example, I think. But even the immigration questions, and it's all of them put together, it's way too complicated to be well understood. And many questions are suggestive and not neutral as well. So I think this is the third reason why I see it's not possible to have a clear consent. For example, if we take question two, it doesn't ask if Albertans agree or not, which would have been neutral, that refugees receive publicly funded programs such as health, let's say. But it's framed to ask: do you support the Government of Alberta introducing a law mandating that only Canadian citizens, permanent residents and individuals with an Alberta-approved immigration status will be eligible for provincially funded programs? So it is very suggestive. It asks, on the other hand, if they support very specific proposals by the government.

And finally, I think also that to have all of those topics together can really influence the choice of voters. You mix together immigration with power sharing and the place of Alberta in the federation. So it kind of induces a critical perspective on the place, the role and the powers of Alberta within the federation, and doesn't allow you to think about the hypothesis of a referendum on secession, for example, really from a neutral perspective and not tying it in with an underlying critique on immigration powers.

Alison

Yeah, those are very good points, and Stephen, when it comes to all of those questions about immigration, these ask how many people to admit, what services they would be allowed to access, and this is like health care and education and requiring proof of identity when it's time to vote. What effect do you think these kinds of questions could have on a population?

Stephen Thiele

Well, look, these are all very complicated questions, as Karine points out, and you need a real level of sophistication and understanding of constitutional law doctrines. Federal paramountcy doctrine is very complicated to wrap your head around easily. For those of us who practise law, it's confusing. To teach it is confusing, and for students to get it is confusing. Then you have a number of aspects in all of these questions. The immigration questions, which are vague as well. What is an Albertan, for example? Albertan first gets priority to a job? I don't even know what that means. You know, I live in Ontario. Does that make me an Ontarian? I don't know. I can't identify with that. You have then a lot of Charter questions that are raised with the proposals. You have conflict with the Canada Health Act in terms of the immigration issues, in terms of what is allowed in terms of health care premiums. You have the section 15 discrimination or equal treatment questions that will be raised. Then you have mobility rights questions under the Charter that will be impacted.

The election question is very interesting. It's framed as an immigration question, but it's really an electoral law question under section 3 of the Charter. And you know, we have cases now, we have two cases, one just coming out a couple of weeks ago on the Terrebonne election, speaking of the substantive rights of a voter. And that question, that you need to identify your citizenship when you vote, really impacts the substantive right of the voter to cast their ballot.

Alison

Yeah. Aren't you just on the voters' list and that means you can vote?

Stephen Thiele

Exactly, and most provinces and the federal legislation deal with it that way, that once you're on the list you're deemed to be a Canadian citizen. And you don't need to prove your citizenship. You may need to prove your identity and what your address is under election laws, but you don't need to prove your citizenship. And quite frankly, not everyone has a passport. So how are you going to prove your citizenship? And so that's discriminatory too.

Alison

Yeah. I lived in Alberta for three years. I'm not sure I would still be considered an Albertan, Gerard. But what do you think of what our other guests have been saying about the ballot questions?

Gerard Kennedy

Yeah, I mean, I think Stephen put out an excellent point that the one about voter ID has a serious risk of being challenged under section 3 of the Charter. Karine's point about question number nine: as a constitutional law professor, I know what that question is fishing for. It wants to overturn the paramountcy doctrine, which listeners to your podcast may be disproportionately likely to actually understand. Do you want to overturn the paramountcy doctrine?

Alison

I don't know about that.

Gerard Kennedy

I think they're more likely than the random Albertan, let's just say. But most Albertans don't understand the paramountcy doctrine. They don't understand that, I believe, in every federation around the world that I'm aware of, certainly the United States and Australia, federal law is paramount in the event of a conflict. Maybe you can argue that some of the federal powers have been interpreted too broadly. We can have a reasonable discussion about that. But overturning the paramountcy doctrine would be very odd, to put it mildly. And it's also something that, if the government really wants to amend the Constitution, it can pursue that without a referendum.

Stephen Thiele

To your point, Professor Kennedy, as I understand the federal paramountcy doctrine, within the Constitution, federalism inherently has to have that paramountcy, and that's why the tool exists.

Gerard Kennedy

Yeah, I mean, there are areas of shared jurisdiction. Something can both fairly be regulated by a province as property and civil rights, and by the federal government under the trade and commerce power. That is possible. But if there's a conflict, the federal government takes priority to prevent a federal undertaking from being undermined by a single province. And again, I think you can have a fair discussion about whether the federal powers have been interpreted too broadly. But once the federal power exists, it by definition must be paramount. That's why you have a federation.

Alison

Karine, I think Quebec has certainly a lot of experience dealing with these areas of shared jurisdiction.

Karine Millaire

Yes, and with the Parti Québécois that has just been elected, for sure Alberta might have found a partner to negotiate such a type of constitutional amendment. But as Gerard was saying, a referendum is not enough, and even if Alberta and Quebec would agree, it would not be enough. There would need to be a very high level of consent, and respect for the 7/50 formula, so at a minimum the consent of seven provinces and both chambers of the Canadian Parliament. I can hardly see that we would reach such a level of consent that would completely replace the federal nature of our country and our Constitution, as my colleague explained. So I can hardly see how this is possible and how this would have enough support, even with Quebec’s support.

Alison

You know, Stephen, you asked the question about... or you didn't ask the question, you answered the question where you mentioned how there's an insinuation with some of these questions. Or maybe it was Karine, I can't remember right now, but there's something that can be interpreted in some of these questions. And Stephen, there is this one question about the provincial government having the power to appoint judges to superior courts and the Court of Appeal in Alberta, which are now of course appointed by the federal government. That surprised me as something to go on a ballot, because I don't imagine that there is a huge majority of Albertans who stew at night wondering how judges are appointed. I could be wrong, Gerard, but what do you think this does... or what do you think the purpose of this question is, Stephen?

Stephen Thiele

I really think it's trying to wrest control from the federal government and make the provinces stronger and give them some control over their courts. Look, there's no doubt that there's frustration. We're experiencing that here in Ontario with respect to the slow-moving federal government in terms of appointing judges, and we have a lot of delays in our court system. And so that question, certainly from a government perspective, makes a lot of sense. But I agree with you that the average citizen doesn't really care about that issue.

What do they care about? They care about bread-and-butter issues. Are they going to have jobs to apply for? Are they going to make decent money? Are they going to be able to put food on the table? Is their housing going to be affordable? And so these kinds of questions, although relevant to us in the legal community, are not relevant to the average person. And overall, all of these questions, if I can put on my political hat, in my opinion, are just wasting time when governments should be concentrating on creating jobs, creating manufacturing jobs, getting products to market. That's really what the government should be doing.

Alison

Yeah. Gerard, what do you say to that?

Gerard Kennedy

I mean, this question is again very much a constitutional law nerd's question. Your point that I doubt many Albertans are up at night thinking about it is almost certainly correct. It would also require the agreement of the federal government, which I think is not likely to be forthcoming. Now, again, if you were designing a constitution from scratch, you could make an argument that the judges of the Court of King's Bench and the Court of Appeal should be appointed by the provincial government. If you look at Australia or the US, it's not a perfect analogy, because the court structure's a little different, but you would probably say that the equivalent judges are appointed by the state governments. But there's a question about whether this is a problem that really needs to be fixed, even if there's a perception that justice is best dispensed locally.

Alison

Do you feel that it could be seen as an attack on judicial independence?

Gerard Kennedy

Someone who wants to attack judicial independence could make this argument, but you could make this argument and not attack judicial independence, if that makes any sense. You could make a fair argument, given the fact that it's better that justice, especially at the trial level, is implemented by those who are really grounded in their community, that the provincial government could appoint the judges. If that's what this is about, they understand the locale better, you could make this argument. You could also make the argument because you want more control over who the judges are.

Karine Millaire

It's interesting, because my colleagues are saying this is not really something Albertans – well, whoever is an Albertan – are thinking about. In the very nationalistic and secessionist movements that we have in Quebec, we have witnessed from time to time people very concerned too about the appointment of judges. It has really been a traditional demand of any Quebec government, including federalist governments, to have their say regarding the appointments of judges and senators. But not necessarily to make a referendum on it, but more about improving, perhaps, the appointment process, being able to share a list of candidates, for example. So I think that those conversations could have a place. Well, I'm not in Alberta now. I know that in Quebec it could, to a certain point, perhaps help to keep the confidence of Quebecers in the federation, to improve a bit some of those processes. But whether it should be a referendum question, I really doubt that it should be.

Alison

Yeah. So Karine, when this vote takes place, how closely do you think le Parti Québécois and other Quebecers are going to be paying attention?

Karine Millaire

I think the Parti Québécois will look at it very closely, and as an example now that it's not only Quebec who wants to be independent. I don't know to what extent Quebecers will follow it very closely, because those who are the most secessionist usually follow a bit less what's happening in English Canada. But certainly the Parti Québécois leader has been very clear that he wants to have a third referendum. He will wait until Trump is no longer in office, but he is really committed to having this third referendum.

Alison

Well, Gerard, Stephen, do either of you have something else you'd like to add at this point?

Stephen Thiele

I just think, Alison, that we can rehash these points. It'll be very interesting, I think, to see what the electorate does, because it takes a lot of education to understand what the questions are really asking at the end of the day. And because some of those questions are so vaguely or ambiguously worded, we really don't know what the outcome would be for any yes vote. And again, I think Premier Smith needs to look in the mirror a little bit as to what happened in Quebec when you don't concentrate on the most significant issues that are facing your population or your residents. And there will be a backlash potentially from the voters to say you've wasted our time. You've spent a lot of money on these referendum questions that nobody asked you to put on the ballot to begin with. And you know, just given our political circumstances in North America right now, and what the federal government and most of the provincial governments are trying to do to work together to create jobs and create employment, I think Premier Smith is better advised to be concentrating on those issues rather than these referendum questions.

Alison

Gerard?

Gerard Kennedy

I was just going to add that the four constitutional questions would require the agreement of the federal government, or the federal Parliament, I should say, and in the case of three of them, the legislatures of six other provinces, and in the case of abolishing the Senate, the agreement of all of the other provinces' legislatures. I'll be surprised if that's forthcoming. So I think it's very unlikely that these constitutional amendments are going to happen, even if people vote yes and even if it's a good idea.

Alison

Yeah, Karine.

Karine Millaire

And just also to remind us and those who are listening to us of the emphasis that we put on the clear question. It has been very clear since 1998, when the Supreme Court said in the Quebec secession reference that there can be a duty to negotiate some constitutional amendments, like following a referendum. But there must be a clear consent, a clear majority who vote in favour of a clear question to have this. And so if we don't have those clear questions and clear mandates, the federal government could even say that it would not recognize the validity and the legitimacy of those questions, and it would be right because of the Supreme Court reference.

Alison

Well, look, I think that's a great note to end on, because of course that was a very interesting decision from the Supreme Court of Canada. I'd like to thank all three of you for taking the time and making the time to share your thoughts and experience with us today. It's always a pleasure to speak with thoughtful lawyers, so thank you very much.

Gerard Kennedy

My pleasure.

Stephen Thiele

Thanks, Alison.

Karine Millaire

Thank you.

Alison

Stephen Thiele was in Toronto today. He's a partner at Gardiner Roberts LLP and he's its director of legal research. Karine Millaire is a law professor and constitutional expert at l'Université de Montréal. She's also a member of the International Commission of Jurists, Canada. And in the centre of the action is Gerard Kennedy at the University of Alberta in Edmonton. He teaches law and is the faculty's associate dean.

I really hope you enjoyed this episode of Verdicts & Voices. I'm your host, Alison Crawford, and this show is produced by the Canadian Bar Association.