A ballot of word salads

Log in to listen to this article

On October 19, Albertans will vote in a referendum about a referendum. 

It will ask whether Alberta should remain a province of Canada or enter the required legal process to hold another referendum on separation.

However, what some may not know is that this isn’t the only thing on the ballot; it’s just one of 10 complex questions. The other nine seek public input on major constitutional questions about immigration, judicial appointments, how Alberta spends federal money, and who can vote in provincial elections. 

Perhaps the bigger question in all of this is how a petition supported by 14 per cent of Alberta voters led to such a consequential referendum? 

“It's a many-stage journey,” Gerard Kennedy, a professor and associate dean at the University of Alberta’s Faculty of Law, tells Verdicts & Voices host Alison Crawford on the latest episode.

Under the province's Citizenship Initiative Act, a group of citizens can force a referendum by gathering sufficient signatures, he says. Earlier this year, the provincial government lowered the threshold required to trigger a referendum.

The group that wants to leave Canada circulated a separation question and gathered enough signatures, but their efforts to have the chief electoral officer verify the signatures were challenged.

Some argued that separation from Canada would have constitutional implications, meaning the chief electoral officer couldn't accept an unconstitutional question. Indigenous groups argued that a binding referendum would affect Indigenous rights. 

For its part, the provincial government defended asking the questions, even though Premier Danielle Smith says they are not supporting separation. To be clear, the question is not whether 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,” Kennedy says. 

“This is a way to avoid the calling of the referendum, triggering the duty to consult.”

Gleaning clear consent 

Karine Millaire, a law professor and constitutional expert at l'Université de Montreal, thinks 10 questions on a ballot is a lot. 

“My first reaction was to think, well, obviously the government wants to have some mandates to negotiate different constitutional amendments,” she says. 

But the question in all of this is whether there’s going to be any clear mandate gleaned and clear consent from voters with all the questions in play? 

“I don't think so,” Millaire says.

There are a few major reasons why clear answers will be challenging. First, there are too many questions about important and complex topics, making it difficult for citizens to be well-informed about all of them. 

“Second, many questions are way too technical or complicated to understand,” she says.

For instance, question nine on the ballot asks: 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 province’s laws and federal laws conflict?

“I teach constitutional law, and I can say that it is complicated even for law students who are very dedicated,” Millaire says of the length and wording. 

“The question does not even contextualize the fact that constitutional interpretation is conducted by courts' decisions.”

Unfortunately, it’s not the only word salad on the ballot. Millaire says having weighty topics lumped together could influence how people vote.

“You mix together immigration with power sharing and the place of a province in the federation, it kind of induces a critical perspective on the place, the role, and the powers of Alberta within the federation,” she says, adding it doesn’t allow people to think about the hypothesis of a referendum on secession from a neutral perspective. 

Instead, it ties it up with an underlying critique of immigration powers.

Charter issues and vagueness

Stephen Thiele, a partner and director of legal research at Gardner Roberts LLP, also thinks the questions are too vague. 

“What is an Albertan, for example? Albertans first get priority to a job. I don't even know what that means,” he says.

“I live in Ontario. Does that make me an Ontarian? I don't know. I can't identify with that.”

The questions raise Charter issues related to mobility and equality rights, as well as conflicts with the Canada Health Act. Thiele finds question five particularly interesting. It asks: Do you support the Government of Alberta introducing a law requiring individuals to provide proof of citizenship, such as a passport, birth certificate or citizenship card, to vote in an Alberta provincial election?

“It's framed as an immigration question, but it's really an electoral law question under section 3 of the Charter,” he says, noting a recent Supreme Court of Canada decision related to the federal riding of Terrebonne spoke to the substantive rights of a voter. 

“That question, that you need to identify your citizenship when you vote, really impacts the substantive right of the voter to cast their ballot,” Thiele says. 

Federally and in most provinces, once you're on the voters’ list, you're deemed to be a Canadian citizen and 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,” he says. 

“And quite frankly, not everyone has a passport. So, how are you going to prove your citizenship? So, that's discriminatory too.”

Kennedy agrees that requiring Albertans to produce a voter ID will likely face a Charter challenge.

He also thinks question nine, which asks who should be eligible for provincially funded programs, is really about overturning the paramountcy doctrine, which “most Albertans don’t understand.” But as far as he’s aware, in every federation around the world, including 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, and we can have a reasonable discussion about that,” Kennedy says. 

“But overturning the paramount document would be very odd, to put it mildly. It’s also something that if the government really wants to amend the Constitution, it can pursue that without a referendum.”

It will be interesting to see what the electorate does, Thiele says, given how much education it takes to understand what the questions being put to voters are really asking. 

“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."

Potential backlash

He does, however, have some advice for Alberta’s leader. 

“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,” Thiele says.

“There will be a backlash potentially from the voters who 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.’”

Given the current political circumstances in North America and the fact the federal government and most of the provinces are trying 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.”

Tune into the full episode to hear what Quebec’s history with separatism may tell us about Alberta’s referendum.