An Alberta judge says a referendum proposal on Alberta separating from Canada goes against Charter and Treaty rights, in a decision given less than 24 hours after the provincial government introduced legislation that would have ended the court proceeding.
The province’s Bill 14, which was introduced Thursday, would end court action on the issue once it came into effect. The proposed bill would allow citizen initiatives to go ahead even if they might violate the Constitution.
Court of King’s Bench Justice Colin Feasby, who has listened to several days of arguments about the independence proposal, had sharp words for the government move to change the law.
“Legislating to pre-emptively end this court proceeding disrespects the administration of justice,” he said in the Calgary Court of King’s Bench on Friday.
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?”
Sylvestre is the executive director of the Alberta Prosperity Project, a pro-separation group.
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 in Bill 14, including removing a provision that a proposed referendum question can’t contravene the Constitution.
‘Silence the court’
Numerous First Nations in Alberta were granted intervenor status in the case: Treaty 8 First Nations of Alberta, the Confederacy of Treaty 6 First Nations, Athabasca Chipewyan First Nation, Samson Cree First Nation, Mikisew Cree First Nation and Sturgeon Lake Cree First Nation.
Three First Nations in Treaty 7 — Piikani Nation, Siksika Nation and Kainai Nation — also became intervenors later in the proceedings, and lawyers representing them presented arguments on Friday.
He also addressed lawyer Nicholas Trofimuk, representing Alberta Justice Minister Mickey Amery, who sent the judge a letter Thursday evening with information about the effect of Bill 14.
Trofimuk said once the legislation has royal assent, the court action is over, and there would be nothing for the judge to decide.
“I was a little bit confused by Minister Amery’s remarks yesterday at his press availability when he was rambling about the court still being entitled to give a decision and nothing they were doing changed anything, because my read is it changes a whole lot of things,” Feasby responded.
After that, he immediately issued his decision in the Calgary Court of King’s Bench.
He added what he called an “epilogue,” which specifically addressed the impact of the provincial legislation tabled Thursday.
Read the court decision:
“The legal consequence of discontinuing this proceeding prior to a decision would be to silence the court,” Feasby 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.
“Only after the parties, intervenors, and the Court invested many days inside and outside of the courtroom to bring this case to an expeditious conclusion, did Alberta decide to change the law,” he said.
“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.”
Separatist group lawyer says ‘we won’
Jeffrey Rath, the lawyer representing Sylvestre in the case, said in an interview Friday that despite the judge’s decision, “As far as I’m concerned, we’re taking the whole thing as a win.”
When the changes to the Citizen Initiative Act in Bill 14 take effect, Sylvestre will be able to resubmit his application for a referendum proposal.
The legislation removes the requirement that the question can’t contravene the Constitution, and only the justice minister — not the chief electoral officer — will have the power to refer proposals to the courts.
Rath is anticipating once the bill is in force, the citizen referendum process can start moving ahead.
“Obviously there’s no need to appeal this decision,” he said.
“We won as far as I’m concerned. We’re getting what we want, which is ultimately … we’re going to have a referendum on independence next year. There’s no doubt about it.”
Rath added he’s never been in a situation where the government brought in legislation that would affect an ongoing court proceeding before it was done.
“We saw today from the criticism that the court had … This is why you don’t want to mess around with judges while judges still have the microphone, right?”
CBC has reached out to a representative for Alberta’s justice minister for comment.
