The Alberta referendum: a pointless, futile stunt, just like the last one

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This is not the first time Albertans have been asked to vote on matters outside their jurisdiction. Five years ago, under United Conservative Party premier Jason Kenney, the province asked its citizens whether Section 36(2) of the Constitution Act, 1982 – the one committing the government of Canada to the “principle” of equalization payments – should be removed from the Constitution.

The question was rooted in the belief, widespread within the province, that Alberta has a special grievance with equalization – that Alberta “pays into” the program other provinces draw out of. It’s nonsense, of course – equalization is not a revenue-sharing program among the provinces, but a federal program, paid for by federal taxpayers.

Albertans pay a disproportionate share of the cost of equalization for the same reason they pay a disproportionate share of the cost of any federal program: because they have a disproportionate number of the country’s rich people. The same complaint, of paying more in taxes than they receive in benefits, could be made by any relatively rich part of the country. It has nothing to do with discrimination – Albertans pay exactly the same rates of federal tax as people in other provinces – and everything to do with the progressive income tax system.

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Equalization is in need of reform for many reasons – it’s a mess of a program that is no longer even much about equalization – but among them is not its supposed unfairness to Alberta.

Nevertheless it is an article of faith for many Albertans that equalization is a plot against the province. And with the instrument of the referendum, they were told, Alberta had the rest of Canada over a barrel. Hadn’t the Supreme Court ruled, in the 1998 Secession Reference, that a referendum on constitutional change – any change, not just secession; in any province, not just Quebec – implied a constitutional “duty to negotiate” on the part of the rest of Canada?

Mr. Kenney was explicit on the point: the ruling was not just about Quebec, he told the provincial legislature, but “of general application across the federation.” Provided there were a “clear majority” on a “clear question,” in the Supreme Court’s famous wording, Canada would have a “binding obligation to negotiate that amendment in good faith with that province.”

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He did not pretend the province could amend the Constitution unilaterally. The point, rather, was to say to Ottawa: “You darn well better take us seriously because the people of Alberta have initiated the process for constitutional amendment.”

Conservative scholars backed him. “If this is the rule to leave Canada, then certainly it is the rule to reform Canada,” argued Ted Morton, former Alberta finance minister and University of Calgary professor emeritus. Rainer Knopff, another University of Calgary professor emeritus, disputed whether a referendum was even required. A resolution of the Alberta legislature was enough on its own to “unambiguously impose the duty to negotiate.” The referendum was needed only to authorize the resolution.

In the event, the referendum passed by a majority of 61.7 per cent. Yet nothing happened. Oh, the resolution passed the Alberta legislature. But no negotiations ensued. No constitutional amendment was passed, or even proposed by any other legislature. Mr. Kenney’s attentions were soon diverted to putting out the fires he had stoked within his own party, which ultimately consumed him.

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The “constitutional duty to negotiate,” in short, turned out to be a bust. It was a pleasant fiction the Supreme Court invented to soften the blow of its main ruling, that separation could not lawfully be achieved by unilateral edicts from the balconies of would-be national presidents. But it did not survive first contact with reality. Courts can bar governments from acting in certain ways. They cannot compel them to play nicely.

Let us come, then, to the latest exercise in knife-at-the-throat democracy, the gargantuan, 10-question ballot the government of Danielle Smith, Mr. Kenney’s successor, has seen fit to place before the voters.

The tenth of these, seeking permission to “hold a binding provincial referendum on whether or not Alberta should separate from Canada,” has attracted the most attention, not to say confusion. But the first nine are no less dubious.

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To be fair, not all of these attempt to impose the government of Alberta’s will on the rest of the country. Several would simply grant it the authority to do things it already has the authority to do.

There are, first, the five questions on immigration, asking the voters whether they “support”:

• the government of Alberta “taking increased control over immigration” (which it cannot do unilaterally) “for the purposes of decreasing immigration” and “giving Albertans first priority on new employment opportunities” (which besides the noxious implication that immigrants are not Albertans, runs afoul of constitutional guarantees of mobility)
• a law “mandating that only Canadian citizens, permanent residents and individuals with an Alberta-approved immigration status will be eligible for provincially-funded programs” (there is no such thing as an “Alberta-approved immigration status,” and in any case this is certain to be challenged on equality grounds)
• imposing a 12-month residency requirement “for any provincially-funded social support programs” (which is mean-spirited, but which the government could do anyway, today)
• charging fees to temporary residents for use of the health care and education systems (which is probably contrary to the Canada Health Act)
• requiring proof of citizenship, “such as a passport, birth certificate or citizenship card,” to vote in Alberta elections (which implies there is some urgent problem of non-citizens voting illegally; if so, it is a wonder that no other province imposes such an onerous requirement)

Taken together, the five appeal to an atavistic fear that Alberta is drowning in new arrivals, that “real” Albertans are being denied jobs or health care or democratic representation by shifty, freeloading immigrants – propositions for which there is little evidence, but plenty of antecedents, most of them south of the border.

Far from legitimate exercises in consultation, they are the referendum equivalent of “push polls,” designed to elicit a particular response, and to position the Smith government as the defenders of a beleaguered native-born populace against the immigrant hordes.

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But they are Periclean Athens next to the other four, which the government is pleased to call the “constitutional questions.” Each asks whether voters “support”:

• giving the provinces, rather than the federal government, the power to appoint judges to provincial King’s Bench and Appeal courts
• abolishing the Senate
• allowing provinces to opt out of federal programs in health care, education and social services, but keep the federal money provided for them
• giving provincial laws priority over federal laws in areas of shared jurisdiction

To be sure, each question dutifully notes that this would require “working with the governments of other willing provinces to amend the Canadian Constitution.” But then, what’s the point? These are enormously complicated questions, to say the least. Much would depend on the particulars – what would replace the Senate? Would any conditions apply to opting out? Etc.

And they’re not going to happen. To take one example: Abolishing the Senate requires the approval of the federal parliament and all 10 provincial legislatures. Good luck with that. The feds, for their part, are never going to agree to make provincial laws paramount over theirs, or to entrench opting out, not just for new programs (that was one of the more contentious items on the Meech Lake agenda), but for existing ones. Perhaps provincial court judges should be appointed by provincial governments, but you can be sure that Ottawa will want to get something in exchange. As it should.

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The whole thing is a pointless, futile stunt. Again, the purpose is not legitimate democratic consultation, on matters that are within the province’s jurisdiction, but to pick a fight with the federal government (much as the immigration questions are designed to demonize immigrants). I don’t even think the point is to bully the feds into submission. It’s confrontation for confrontation’s sake.

So be it. The constitutional questions are as pointless as the rest, and deserving of the same fate: if not to be rejected by the good citizens of Alberta, then to be comprehensively ignored by the rest of Canada.

But … but … the people would have spoken! You can already hear the separatists practising their lines if, as expected, the “referendum on a referendum” is defeated but some or all of the other nine questions pass. We said yes to Canada; Canada said no to us. If it is the will of Albertans that these things should happen, how can the rest of Canada refuse?

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The same way it did on the equalization business: just by not saying, or doing, anything. And the same way it may one day have to in Quebec.

Indeed, the referendums in Alberta may come to be regarded as having set a useful precedent. If plebiscitary extortion is not the rule to reform Canada, then to borrow Prof. Morton’s logic neither is it the rule to destroy it. If it fails on something as relatively trivial as equalization or judicial appointments, it must surely fail when the matter is national self-annihilation. The Constitution is not, as they say, a suicide pact, and no government of Canada, whatever it might say beforehand, would ever sit down to negotiate the dissolution of Canada.

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Besides, when it comes to ignoring referendum results, the provinces are past masters. Two previous referendum losses did not dissuade the Parti Québécois from pursuing its secessionist ambitions: they just teed it up to ask again. As for Alberta: it wasn’t only the rest of Canada that ignored the will of Albertans in 2021. So did the government of Alberta.

Deleting equalization from the Constitution was not the only question on the ballot that day, you may recall. So was a proposal to move the province to year-round Daylight Saving Time. Albertans voted narrowly to reject it. Yet the government this year passed legislation imposing it anyway. “The people have spoken” is always the rule, so long as they tell their rulers what they want to hear.

Editor’s note: A previous version of the photo caption accompanying this article incorrectly stated that Dunmore is in southwestern Alberta. It is in southeastern Alberta.