A judge will have to determine whether the referendum question of Albertan separatists respects fundamental rights and freedoms, at the request of the Director General of the Alberta elections.
The first hearing will take place Thursday, at the Edmonton courthouse, before a judge of the court of the bench of the King of Alberta, the Superior Court of the province.
The judge has no specific schedule to give his decision, which could slow down the ardor of Albertan independence, who wanted to start collecting signatures this summer.
The Citizen Initiative Actwhich supervises the popular initiative referendums in Alberta, allows the director general of the elections to ask the courts to test the constitutionality of a question before approving a petition.
Alberta elections did not specifically specify why this question could be a problem. The documents deposited in court only list a series of items that may be violated.
Fundamental rights and freedom studied by the judge
- Article 1: Rights and freedoms in Canada
- Article 3: Democratic rights of citizens
- Article 6: Freedom of movement and establishment
- Article 7: Right to life, freedom and security
- Article 15: Right to equality before the law, equality of profit and equal protection of the law
- Article 24: Appeals in the event of violation of rights and freedoms
- Article 35: Rights of Aboriginal Peoples of Canada
Source: Legal memory of Alberta elections deposited at the courtyard of the King of Alberta
In this case, the independence group Alberta Prosperity Project (APP) submitted an authorization request for a petition on July 4. They want to collect 178,000 signatures to hold a referendum.
The question proposed by the Alberta Prosperity Project: Do you agree that the province of Alberta becomes a sovereign country and ceases to be a province of Canada?
The group defends the legality of its question. According to Jeffrey Rath, the author of the referendum question, the latter respects the law on referendum clarity, adopted by the federal government after the 1995 Quebec referendum.
Jeffrey Rath, lawyer for Alberta Prosperity Project and author of the referendum question.
Photo : (James Young/CBC)
This federal law enaches that a referendum question must [permettre] It is up to the population of the province to clearly declare whether or not they want to stop being part of Canada and becomes an independent state.
However, this is not what is at stake here.
Rather, the Court will have to determine whether the question breaks articles 1 to 35.1 of the 1982 Constitution, which notably includes rights protected by the Canadian Charter, but also Aboriginal rights.
“The judge will be invited to rule [sur la question] “Does organize a referendum on the independence of Alberta is something that can affect the Canadian Charter of Rights and Freedoms?” Sommates the professor in constitutional law at the University of Montreal and ex-deputy of the Bloc Québécois, Daniel Turp.
It is a fairly unique debate. […] It would be the first time that a court would be called upon to rule on a question of legality of a referendum issue on independence.
It has been a while since the wording of a referendum question has not made headlines in Canada, probably since the debates that preceded the 1995 referendum in Quebec.
It is sort of test case
adds Marion Sandilands, lawyer specializing in constitutional law.
This case will be a very important chapter in the question of the legality of the secession of a province.
The question of indigenous rights
Since the start of the resurgence of the Alberta independence movement, a sensitive point has been the question of the rights of indigenous peoples.
Their ancestral rights, as well as the rights which are governed by the treaties, are protected by the Canadian Constitution.
The numbered treaties 4, 6, 7, 8, and 10 govern relations between different Aboriginal nations of Alberta and the federal government. The majority of these treaties were negotiated and signed with the crown, British at the time, even before the creation of Alberta in 1905.
This spring, hundreds of people demonstrated against the bill lowering the number of signatures necessary to hold a popular initiative referendum.
Photo : Radio-Canada / Charles Delisle
Indigenous peoples are therefore worried to see their rights disappear, or lessened, under an independent Alberta.
According to Marion Sandilands, the judge will have to rule on An important constitutional question in terms of sovereignty of a province in relation to the relations that First Nations, the Inuit and the Métis have with the Federal Crown
.
She also considers that the approach of the director general of the elections is prudent, and believes that we must take the time to do things well.
We saw in 1980, and particularly in 1995 in Quebec, that the nature of the question and the process that surrounds it are really important not only for the legality of the result, but also for its legitimacy.
With information from Janet French and the program La Croisée
