Like other National Post writers, I consume a fair amount of column inches criticizing judges. This is only right, since the organs of public opinion are about the only form of accountability to which judges are ever subject: we are, not by our own choice, a thin, ink-black line of last-ditch defence against their errors and depredations. But of course, there are occasions on which a scribbling, babbling observer of the law can only sympathize with these gowned drudges, and I encountered one such occasion while perusing a
issued last week by Alberta King’s Bench Justice Colin Feasby.
Feasby’s ruling represents the outcome of the first skirmish in what’s sure to be a litigation war of some duration and complexity. There are a handful of people in Alberta who want the province to separate from Canada, or who just want it to be able to threaten to separate in order to strengthen Alberta’s negotiating position within the federation. They are strategically ambiguous or perhaps simply incoherent about this, so it’s not 100 per cent clear which of these people can be properly called “separatists,” but no more accurate term offers itself.
Alberta has citizen-initiative legislation which allows its voters to create and petition for referendum questions. So, some of the separatists want to have a referendum with a ballot question asking, “Do you agree that the Province of Alberta shall become a sovereign country and cease to be a province in Canada?”
Alberta’s laws, freshly updated by Danielle Smith’s government, specify that proposals for referendum questions must not “contravene” the Charter of Rights or the Aboriginal rights provisions of the Constitution Act (1982). This part of the initiative and referendum law is poorly specified, and the precise application of “contravene” is uncertain and untested. The laws, nonetheless, require the province’s chief electoral officer to decide whether a proposed question is constitutionally offside, and they explicitly allow the chief electoral officer to send a reference question to Alberta King’s Bench if he decides that’s necessary.
The chief electoral officer did this, and the file landed in the lap of the (highly regarded) Justice Feasby. The separatists objected and asked the judge to reject the reference, claiming that the popular will was being trampled by an officious nuisance.
Judges aren’t allowed to invoke Kafka in their own right, but this all created a rather surreal situation for Feasby. He was being asked to rule on the application of a new and poorly written law. The chief electoral officer sent in his reference question, but chose not to argue against the separatists’ application to strike it. Alberta’s attorney general professed neutrality and hid. The separatists’ motion was thus procedurally unopposed, and the judge was left without the adversarial help that he would have in any ordinary hearing or trial.
Alberta’s sovereigntist theoretician
and Freedom Convoy defender
pleaded the motion and managed to miss the unguarded net: Feasby accepted and will decide the chief electoral officer’s reference question. Far be it from me to fault any lawyer for fighting a doomed cause, but one cannot help noticing, reading Feasby’s ruling, that the separatist legal arguments had a certain stumbling quality.
The separatist team tried a Gordian Knot argument that their referendum question wasn’t really binding on the government, and couldn’t thereby offer any conflict with the Constitution Act in itself, but the Alberta Referendum Act explicitly states that such questions
are
binding on the government, using the word “binding.” And if you have a taste for slapstick, you will notice at paragraphs 27-30 how the separatists had to amend their pleading on the fly in the courtroom because of a rather ludicrous self-contradiction. Meanwhile, through paragraphs 45-47, they are rebuked for total ignorance of ironclad caselaw on referendums and the Charter.
As often as I am troubled by the unbounded power and social-engineering ambitions of some of our judges, in this instance I was left thinking that you could never pay me enough to be one.
National Post
