A judge from the Alberta Court of Kings Bench has issued a surprise ruling on the proposal for a referendum on Alberta independence.
In a written judgement issued Friday, Justice Colin C.J. Feasby said the referendum proposal violates the Canadian constitution.
Feasby’s ruling also included some harsh words for the UCP government that tabled legislation on Thursday, attempting to prevent the court from ruling on the constitutionality of the proposed referendum question.
Justice Minister Mickey Amery’s bill would allow such petition drives to go ahead regardless of whether they violate the Constitution, while effectively ending the court review.
Feasby, in his decision, wrote that the government deciding to change the rules midstream undermines respect for democracy and the administration of justice.
“The rule of law plays a critical role with respect to the democratic process where stability of the governing legal regime enhances legitimacy and public confidence in the outcomes of elections and referendums,” Feasby wrote.
“Changing legislation to circumvent a valid legal process commenced by the independent officer of the Legislative Assembly responsible for administering democratic processes is the antithesis of the stable, predictable, and ordered society that the rule of law contemplates, and democracy demands.”
He also focused most of the comments in his written judgement on the referendum question’s failure to guarantee First Nation treaty rights.
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“First Nations, as founding partners in the creation of Alberta, cannot be ignored or bypassed as Alberta contemplates its future whether that is part of Canada or not,” said Feasby.
“Moreover, this decision has concluded that the transformation of provincial and territorial borders into international borders would contravene the Numbered Treaties by significantly impairing the exercise of Treaty rights by First Nations,” added Feasby.
A proposed referendum question on Alberta independence from the Alberta Prosperity Project was submitted to the Court of Kings Bench for review earlier this year.
Alberta’s chief electoral officer, Gordon McClure, requested a judge review the proposed question to determine if it violates the Constitution.
The question would ask Albertans: “Do you agree that the Province of Alberta shall become a sovereign country and cease to be a province in Canada?”
Both Premier Danielle Smith and Justice Minister Mickey Amery have criticized McClure’s decision to ask for a judge’s review.
Alberta Justice Minister at a press conference in Edmonton Thursday where he discussed new legislation the government tabled that would’ve prevented the Court of King’s Bench from ruling on the constitutionality of the referendum question.
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On Thursday, the UCP government tabled legislation that would halt the court proceedings — a decision Feasby referred to in his judgement as “contrary to the rule of law.”
“Legislating to pre-emptively end this court proceeding disrespects the administration of justice.”
While Feasby’s ruling had not been expected to be released so soon after the legislation was tabled, in it he suggests that the ruling’s release was expedited because “this case concerned a matter of importance to the public” and the intervenors in the case had invested significant time and money to participate in the proceedings and therefore “the public is entitled to the fruits of this process.”
“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,” added Feasby.
He wrote that he still issued his decision because the bill hasn’t become law yet, and because Albertans deserve to understand the complex legal issues at play if the province was to quit Confederation, or at least vote to do so.
“Nothing in this decision should be understood to mean that the constitution cannot be amended or that Alberta cannot hold a referendum on separation,” Feasby said.
“This decision only stands for the proposition that Alberta in the (Citizen Initiative Act) did not give citizens the power to initiate a referendum on the question of independence from Canada.”
Jeffrey Rath, spokesperson for the Alberta Prosperity Project, reacted to the judge’s ruling by saying he doesn’t believe the process “contravenes anybody’s rights,” but the judge’s decision “is now rendered irrelevant by the government of Alberta amending the legislation.”
“We get a referendum on independence next year on our question — so we’re thrilled with where we’re at and we’re very happy and grateful to Danielle Smith and her government.”
However, former deputy premier, Thomas Lukaszuk, who helped collect more than 400,000 signatures on the Forever Canada petition asking, “Do you agree that Alberta should remain within Canada?,” called the UCP’s recent actions both “unconstitutional” and “unethical.”
“You know, this is unfathomable in a democracy, in a country run by a rule of law — and there will be a day of reckoning. The minister chose the wrong group of people and the wrong person to mess with.”
With files from The Canadian Press
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