Eva Chipiuk, BSc, LLB, LLM@echipiuk
Today’s ruling by Justice Leonard essentially found that the citizen-led independence petition process cannot proceed because the government did not fulfill certain constitutional responsibilities owed to First Nations.
But here is the important point: the Alberta government did not initiate this petition process. Citizens did, through a lawful statutory mechanism created by the Legislature itself. So how does a court conclude that the government failed to fulfill duties that had not yet even arisen or been carried out, particularly when the government itself had not initiated the referendum process?
It is also important to understand that the Alberta government has always had the ability to call a referendum on independence at any time if it chose to do so. That is not in dispute, and it was not the legal question before the Court in this case. Nothing in today’s ruling prevents the Alberta government from calling the very same referendum itself tomorrow.
So think about that carefully.
A citizen-led democratic process established by law is effectively halted, not because citizens failed to follow the legislated process, but because of obligations assigned to government itself. Yet the government retains the full ability to ask the same question directly.
Courts and those in government must always have regard to the overall interests of justice, including democratic participation, the integrity of legislated statutory processes, and public confidence in lawful democratic frameworks established by the Legislature.
I figured it would be appropriate to reflect on a few words from the Supreme Court of Canada:
“…liberal democracy demands the free expression of political opinion” and political speech lies at the core of the Charter’s guarantee of freedom of expression. The Court further affirmed that freedom of expression includes “the right to attempt to persuade through peaceful interchange.” — Harper v. Canada
The Supreme Court of Canada has also held that:
“…the right of each citizen to participate in the political life of the country is one that is of fundamental importance in a free and democratic society.” — Figueroa v. Canada
And in the Reference re Secession of Quebec, the Supreme Court of Canada recognized that democracy is grounded in the participation and democratic will of the people, and that a clear expression of the will of citizens carries constitutional and political significance that cannot simply be ignored. Specifically, the Court confirmed:
“The democratic principle identified above would demand that considerable weight be given to a clear expression by the people of Quebec of their will to secede from Canada…” — Reference re Secession of Quebec
So how does any of this truly reconcile with a situation where government itself can ask citizens a question through a referendum process, but a group of citizens following a lawful statutory process established by the Legislature is not permitted to ask the question?
What message does that send when citizens engage in lawful democratic participation, comply with the very process created by government, and yet their voices are disregarded or treated as something to be feared?
Democracy is not strengthened when lawful citizen participation is restrained or silenced. In this case, it was not government stopping the process, but the Court. That reality raises profound questions about the role institutions play in democratic participation and how citizen engagement is treated when it touches controversial political issues.
After all, citizens do not hold institutional power. Their power is their voice. And if even that voice can be restrained after citizens lawfully engage in the exact democratic process created for them, what meaningful role are citizens truly left with in shaping the political future of their province and country?
What do you think? Should lawful citizen participation be encouraged, even when institutions disagree with the message?
