Clarke Ries: How two Alberta judges shot separatist delusions to death

(And, not for nothing, they probably just wrecked Quebec separatism, too.)

By: Clarke Ries

The main purpose of the courts, when you get right down to it, is to force bullshit into contact with reality. This is inconvenient for bullshit artists, disconcerting for bullshit believers, and an immense relief for the rest of us.

Justice Leonard of the Court of King’s Bench in Lethbridge has just brought a certain amount of relief to most Albertans with her decision yesterday to quash Elections Alberta’s approval of the secession referendum scheduled for this fall.

The battle to kill a bad idea that just won’t die isn’t quite over, but separatists across Canada who dared to hope that the summit of their dingbat ambitions was within view are now staring up from the bottom of the mountain at a climb to the peak that just got far longer and a lot less forgiving.

It should never have come to this. Alberta separatism polls terribly, and the closer you look at the numbers, the worse they get. Of the 26 per cent of Albertans who claim to support secession, only half (13 per cent) strongly agree that Alberta should separate from Canada, compared to 56 per cent of Albertans who strongly disagree. When it comes to manning the barricades, the patriots outnumber the traitors four to one. On any other political issue, the battle would be over before it began.

Unfortunately, we are blessed in Alberta with the premiership of Danielle Smith, who has devoted her most energetic efforts since taking office toward shielding separatists from the reality that their pet project is asinine, unpopular, and unconstitutional.

It’s now obvious that despite Smith’s claims of fealty to Canada, she’s either an éminence grise within the separatist faction — a Palpatine, if you will — or so politically beholden to their grasp on the United Conservative Party that her personal values are irrelevant.

Smith didn’t mutter a word about supporting separatism during her 2023 election campaign, where it would have received the most thorough scrutiny, but she didn’t have to. In Alberta, our provincial government is bound by the Citizen Initiative Act to hold any referendum that gathers enough petition signatures, and bound by the Referendum Act to implement the results of any referendum held.

All you need to do to effect tectonic change in Alberta is pick off low-information voters with sales pitches unmoored from reality in a non-election year, when fewer people are paying attention. You’re welcome to guess who championed the Citizen Initiative Act.

One of the few concessions to sanity in the Citizen Initiative Act was section 2(4), which stated that a proposed referendum question must not contravene the Canadian constitution. When Elections Alberta received the separatists’ proposal that Alberta unilaterally secede from Canada, it forwarded the question to the courts, as it was allowed to do by section 2.1(1) of the Act, to get some expert advice about whether it was constitutional.

The court battle took place in late November last year in front of Justice Feasby of the Court of King’s Bench in Edmonton. When the smoke cleared after three days of argument, Danielle Smith must not have liked the way it was drifting.

On December 4, before Feasby made his decision, lawyers for the Alberta government handed him a letter informing him that the UCP was slamming an amendment to the Citizen Initiative Act through the legislature that would completely eliminate sections 2(4) and 2.1(1).

So you see, the premier’s lawyers explained to Feasby, there will actually be no need for you to offer an opinion. We’re about to delete both the law that says referendum questions have to be constitutional, and for good measure the law that allows Elections Alberta to ask you for advice about whether a referendum question is constitutional.

You’ve been rendered obsolete. Shut your mouth. Don’t make waves.

The next day, Justice Feasby went ahead and published his written decision anyway. He pointed out that since the amendment hadn’t actually made it all the way through the legislature yet, the litigation remained alive and well, and he had a job to do.

As the UCP feared, Feasby found that the referendum proposal for unilateral secession was unconstitutional. For good measure, Feasby added a scathing postscript describing the UCP’s behaviour as “the antithesis of the stable, predictable, and ordered society that the rule of law contemplates, and that democracy demands.” After that, he took a few shots at the government’s “cavalier disregard” for scarce court resources, and declared that the public was entitled to the fruits of a process conducted largely at its expense.

Here is what the separatists would rather you didn’t know about the legality of their otherwise-genius idea to found a landlocked, export-reliant state.

As Quebec readied for the 1995 referendum, a Quebec Superior Court judge offered a blunt warning: a unilateral declaration of independence if the referendum succeeded would be “manifestly illegal”. Likewise, in 1998, the Supreme Court of Canada ruled that a mere majority vote for secession in Quebec was legally meaningless, that unilateral secession is illegal in Canada, and that provincial secession would require a constitutional amendment. In the same judgment, the Supreme Court ruled not that a “clear majority” in a referendum obligates the rest of Canada to agree to such a constitutional amendment, but that a clear majority in a provincial secession referendum is the bare minimum required for the rest of Canada to even take a request to secede seriously — “to come to the negotiating table”.

Once the parties are at the negotiating table, the Supreme Court made it crystal clear that there is zero obligation on the other provinces and the federal government to agree to allow the wayward province to secede. It’s worth quoting the judgment directly:

While the negotiators would have to contemplate the possibility of secession, there would be no absolute legal entitlement to it and no assumption that an agreement reconciling all relevant rights and obligations would actually be reached. It is foreseeable that even negotiations carried out in conformity with the underlying constitutional principles could reach an impasse. We need not speculate here as to what would then transpire.

“We need not speculate here as to what would then transpire.”

Let me unpack that little piece of politesse. The Supreme Court, asked to imagine what would hypothetically occur if Quebec arrived at the negotiating table demanding independence and was told by the rest of Canada to get fucked, dodged the question.

Why? Because there was no need for the Court to write something politically inflammatory when it had already indirectly answered the question two sentences earlier. If there’s no absolute legal entitlement to secession or the successful negotiation of a secession agreement, then the power ultimately resides in Ottawa — and Victoria, Regina, Winnipeg, Toronto, Quebec City, the Maritimes, and St. John’s — to tell Albertan separatists to attempt the anatomically impossible.

It’s very straightforward, which is why Justice Feasby wrote that “the outcome of this case should not be a surprise to anyone.”

It is reasonable to assume, he explained, that if Alberta seceded, it would have the attributes of a normal sovereign country, as would Canada. Therefore, what the separatists were proposing in their referendum was for Albertans to surrender their current right to participate in Canadian government, to cross Alberta’s borders into Canada, to do business in Canada, and to retain their Canadian citizenship, since none of those rights are guaranteed after secession and all of those rights are, post-secession, the right of Canada to grant or withhold to Albertans.

What separatists were proposing, when it came right down to it, was the total revocation of every constitutional and Charter right currently enjoyed by Albertans, replaced by promises that something equal or better might eventually replace them.

And, Feasby pointed out, the provincial and federal governments aren’t the only people at the table when this conversation occurs. Alberta’s First Nations are signatories to a series of treaties with Canada, not with Alberta. There is no constitutional entitlement for Alberta to unilaterally replace Canada as the counterparty to those treaties. The obligations cannot be assumed by an “independent foreign state,” as separatists aspire to see Alberta become.

Nor can an independent Alberta guarantee those treaty rights even if the First Nations accepted Alberta as a counterparty: four out of the five Numbered Treaties active in Alberta contain First Nations territory that crosses the borders between Alberta and the rest of Canada.

Either an independent Alberta is a real country, Feasby reasoned, entitled to control who crosses its international border even within treaty territory, or it would be forced to accept uncontrolled movement across its border, challenging its supposed sovereignty.

Heck, even if Alberta were to ink a deal with Canada to allow freedom of movement within treaty territory, Feasby noted, it would be an international agreement, not a domestic constitutional right, and the former are far more fragile — a distinct downgrade for the First Nations involved.

None of these treaty-related issues bother the separatists, of course. It’s obvious to them that the inconvenient desires of a tiny minority shouldn’t get in the way of the national project they’re committed to realizing.

The irony of that attitude isn’t apparent to them. At all.

It is therefore not surprising that the concept of consulting Alberta’s First Nations on the secession plan before launching it seems to have been beyond the ability of Alberta separatists, Danielle Smith chief among them, to grasp.

Much like every other objection raised about the practical realities of what secession would entail, separatists tried to wave off the constitutional duty to consult with First Nations as a subject for another day. Listen, they said. First let us have the referendum, then we’ll do all this negotiating these people think they’re entitled to. We’ll consult ‘em real good.

And that is when the entire secession movement slammed nose-first at Mach 1 into an immovable object.

The aforementioned UCP amendment gutting the constitutional review mechanism in their own statute cleared the legislature on December 10. This freed the separatists from any immediate concern about whether what they were proposing was legally or constitutionally possible. That they considered this a good thing should tell you a great deal about their collective intellect and character. The referendum process trundled forward.

On December 12, the separatists reapplied to have their referendum question heard, and Elections Alberta had no choice but to go along. A race began to gather enough signatures before May 2 to make the referendum a reality, a process that the separatists handled, with their typical respect for institutional democratic virtues, by leaking the personal information of Albertans to potentially thousands of people. Two weeks ago, they cheerfully announced that they’d collected twice as many as they needed, which in retrospect sounds a bit like Pickett reporting that he’d nearly reached Cemetery Ridge.

There are many bars Danielle Smith can lower in her quest to coddle Alberta separatists, like the number of petition signatures needed to trigger a referendum. There are many obstacles that she can bulldoze out of their way, like made-in-Alberta legislation of the Citizen Initiative Act variety. But what Danielle Smith cannot go over, under, around, or through is section 35 of the Canadian constitution, affirming Indigenous treaty rights, which is steel-plated by virtue of its exemption from the notwithstanding clause.

The difficulty of pinning down what the duty to consult requires is a subject for another column, but suffice it to say, those details aren’t particularly relevant, because the UCP didn’t even try. Pinning down when the duty to consult kicks in is much easier: the moment a government becomes aware of conduct that might adversely affect a treaty right.

In the aftermath of Smith’s sabotage of the constitutional review conducted under the Citizen Initiative Act, Alberta’s First Nations filed for an injunction to quash the referendum, claiming that the time for consultation is right effing now.

It would be too late after the referendum, they argued, because per the Referendum Act, if the referendum succeeds, the provincial government will be bound to implement the result, rendering any consultation conducted at that point insultingly hollow.

Justice Leonard found that argument persuasive yesterday. After the referendum, she wrote, “we are in the realm of the non-justiciable”: the courts don’t supervise the political aspects of constitutional negotiations. Likewise, the question of whether the referendum represents a clear majority that kicks off constitutional negotiations “is subject only to political evaluation.”

The decision to go ahead with the referendum, therefore, is the last stop before the train leaves the station. If you don’t consult now, you may as well not consult at all.

And that’s only the flashiest part of Leonard’s decision, which is devastatingly well-written. Take my word for it that there’s a meticulousness to how it ensures that every rotten move the UCP made in its attempt to escape Feasby’s judgment blew up in its face — simply by taking the statements UCP made in the legislature about what they were doing and why they were doing it at face value.

Likelihood of being overturned on appeal? Real low.

Following on the heels of Justice Feasby’s refusal to be muzzled, Justice Leonard’s decision is the second bullet in a double-tap execution of the best shot Alberta separatism had at success.

As of yesterday, Plan A — to let radical separatists immune to political blowback do all the dirty work — is toast. Feasby’s rejection of the bottom-up separation petition via the Citizen Initiative Act saw to that, as Leonard confirmed yesterday.

Because Feasby chose to publish his opinion in the face of the looming legislative amendment, instead of rolling over and playing dead as instructed, Elections Alberta was able to rely on that opinion to reject the secession petition, mere days before the amendment came into force and would have prevented Elections Alberta from making that judgment call.

When Justice Leonard ruled yesterday that a rejected petition could not be resubmitted, it was the death knell of the Citizen Initiative Act’s strategic usefulness.

Now the only tool remaining to call a secession referendum is the Referendum Act. But the Referendum Act is a top-down tool: only the provincial government can use it to call a referendum, at the provincial government’s sole discretion. There’s no populist movement of grifters, turncoats, and useful idiots to hide behind.

Danielle Smith has to do it herself.

She has to walk up to a microphone and declare to a province that is 70 per cent opposed to separation that what she truly wants is to be the first president of the Republic of Alberta, and that she’s going to make it happen despite the fact that nobody, legally speaking, is forcing her to.

And then, before she can get a separation referendum back in front of Albertans, she and the UCP party members fanatical enough about separation to publicly stand with her have to consult Alberta’s First Nations about their plan. In good faith. To the satisfaction of the Supreme Court of Canada. The one sitting in Ottawa.

“Setback” doesn’t quite capture yesterday’s news. Something like “generational defeat” sits a bit closer to the truth, and that’s before considering the collateral damage, which likely goes well beyond Alberta politics.

If a duty to consult is required prior to holding a referendum in Alberta, there’s no reason why the same wouldn’t be true in Quebec — and I have no reason to believe Québécois politicians will be any more adept at navigating that duty than their Albertan counterparts.

Ironically, a separation movement born out of petty resentment over the fawning treatment accorded to post-referendum Quebec may — despite ending its campaign in a superheated mushroom cloud of incompetence, dishonesty, betrayal of principle, and alleged criminal misconduct — have achieved the one thing that will actually make its constituents happy: dragging its Francophone rival for national attention and special treatment down with it.

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