On Friday, Alberta King’s Bench Justice Colin Feasby issued  an irascible ruling on a reference question from the chief electoral officer of the province . Justice Feasby had been asked to decide whether a potential citizen’s initiative launched by an Alberta separatist group was in conformity with the current version of the Citizen Initiative Act (CIA) passed in 2021.

And, hey, we’re already bored, but can I ask you to read that last sentence again with a little extra care? The Feasby decision prompted immediate headlines across the Dominion:  Global News ’s was “Judge rules proposed Alberta separation referendum would be unconstitutional,” and the  CBC  blared: “Judge says referendum proposal on Alberta independence would be unconstitutional.”

Complaining about headlines is a mug’s game, I know, but there isn’t any need for us newsfolk to raise the temperature any further between legislatures and courts right now. They’re doing just fine on their own. As the good judge was EXTREMELY CAREFUL TO EMPHASIZE, taking pains to do so in the second paragraph of his decision and elsewhere therein, he was  ruling specifically on the constitutionality of Alberta’s separation; or on the constitutionality of a referendum on separation; or even, strictly speaking, on the constitutionality of the particular citizen initiative before him. He was exercising a function assigned to him by an Alberta statute.

“The question that must be decided is not whether holding a referendum on Alberta independence is constitutional. The question prescribed by CIA s 2(4) and asked by the (chief electoral officer) engages with the constitution but is not in a proper sense a question of constitutionality. Accordingly,  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 CIA.” [Emphasis mine.]

My concern here is that readers who would like Alberta to separate, of which there are certainly a few, and readers who are concerned about the fairness of Confederation, which ought to be everybody, may get the idea that an Alberta judge has choked off Alberta’s ability to hold a referendum of the sort that Quebec has held twice. The existing citizen-initiative law, passed in 2021, requires that an initiative petition “must not contravene sections 1 to 35.1 of the Constitution Act, 1982.” That’s a made-in-Alberta requirement — one that was inserted into the law for the political purpose of reassuring vulnerable minorities, including First Nations, that the new direct-democracy instrument wouldn’t be used in a rogue moblike fashion.

Owing to that feature of the law, Justice Feasby had to perform a Talmudic analysis of whether Alberta smashing its way out the door of the Canadian Constitution would “contravene” the guarantees of rights found in it. Not too surprisingly, he decided that it would — and his reasoning would probably have implications for negotiations that  any successful Alberta separation referendum (something of which there is no earthly prospect). The judge argues with particular force that numbered treaties between Alberta Aboriginal peoples and the Crown are a special problem. The treaties are prior to and separate from the existence of Alberta, and, because they are treaties, they could not necessarily just be passed over to a successor state, even an otherwise legitimate one, like a debt to a department store.

But, remember, Feasby is not saying that a  on separation would be unconstitutional, nor even that separation itself would necessarily be. The Alberta government has actually now tabled amendments to the CIA that cancel out the technical requirement for constitutional compatibility, leaving the door wide open for some enterprising citizen to petition for a Quebec-style Oui-ou-Non referendum. (Such a petition can always be rejected by the legislature itself,  as we discussed last week . Citizen initiatives have no legally binding force.)

In an unusual “epilogue” to his decision, Justice Feasby expresses some annoyance with that new Bill 14, which received first reading the afternoon before he published his decision. Since  Bill 14  is not yet law, and the old CIA still is, the judge was perfectly within his rights to just issue the main ruling, and need have said no more about it. It would, indeed, have been bad if he threw out his ruling on the mere assumption that Bill 14 will pass.

The judge merely observes that it is the government’s own fault that the CIA was written in a way that might require complex expedited litigation in response to a mere flight of Alberta-separatist fancy, which is exactly what happened, and that the government could have changed the law at any time, rather than doing it after a judge, some lawyers, the separatists themselves and various intervenors had gone to an infinity of trouble and generated a mountain of research. I do not see that the United Conservative government has a good answer to this: as with the closely related topic of voter recall, they sometimes do not quite seem to know their own minds when it comes to direct democracy.