The Clarity Act and Alberta's Tricksy Question

This October, Albertans will vote on a referendum question that arguably rivals the word salad that René Levesque imposed on Quebeckers in 1980 for obfuscation and confusing wording: 

“Should Alberta remain a province of Canada or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?”

I have seen a number of people argue that because Alberta's question does not directly entertain separation, that the Clarity Act does not apply.  I beg to differ.  I think that not only does the Clarity Act apply, but that there is a compelling set of arguments the can be made that would require principles similar to The Clarity Act to apply to all referendums in Canada.

Part I - The Question Does Not Entertain Separation Directly 

The 1980 referendum in Quebec was built around the following question: 

The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad - in other words, sovereignty - and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?

In a manner not unlike Alberta's question, it rather specifically avoids talking about separation per se, although there is no argument today that it was fundamentally a separation referendum.  Yes, the sovereigntist Parti Quebecois was trying to bury the notion in the language of "Sovereignty-Association", to assuage fears that separation would impoverish Quebec.

Using the logic that a question which does not directly entertain sovereignty is not subject to the Clarity Act, then the 1980 question would escape scrutiny under the terms of the Clarity Act, yet it is clearly understood to be a separation referendum in its own right.  Both the 1980 Quebec Question, and the 2026 Alberta question contemplate separation as "future outcomes".  The 1980 Quebec Question is designed to drive a wedge in that if it went forward would create the grounds for a future referendum on explicit separation.  Structurally, this is the same as in Alberta's question. 

Reasonable Person Test

If the Clarity Act is to have any legal meaning at all, slippery wording cannot be used to sidestep the intent of the act.  This is where the first legal test comes in.  In law, there is something called "The Reasonable Person" test.  I propose that this can be applied in this situation by asking the question "Would a Reasonable Person understand this referendum to be about separation / secession?".  

I would argue that the 1980 Quebec question clearly imagines a future where Quebec operates largely independently of Canada, while still being "part of Canada", setting the stage for a future referendum where a more direct question could be entertained as politically possible.   No "reasonable person" in Canada at the time saw this as anything other than a separation referendum.  

Alberta's question does a similar thing.  It imagines a "future question on sovereignty" as an outcome, but in context, the UCP government in Alberta its clearly musing about a construct very similar to Sovereignty-Association, which Premier Smith calls "Sovereign Alberta in a United Canada".  It's the same kind of concept, with the same intent - it's really about creating the political environment where more people would consider secession as a viable option.  

I would argue that a "Reasonable Person" examination of not just the question itself, but the political context in which this question is being put forward arrives at the inescapable conclusion that in spite of some "clever wording" choices, this referendum is still a separation referendum.  As the question stands today, it appears that you either endorse "remain in Canada", or you endorse going to a referendum in some foreseeable future.  

In other words, because the question only indirectly addresses the possibility of secession doesn't allow the province to ignore the Clarity Act.  The Clarity Act is a legislative expression of the results of the 1998 ruling Reference re: Quebec Secession. 

Part II - The Democratic Rights Issues

Section 3 of The Charter sets out the right to vote in elections.  On its face, the language of S3 is very simple and doesn't appear to extend beyond "the right to vote in elections": 

3 Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Now, that seems pretty narrow, doesn't it?  Except in Reference re Prov. Electoral Boundaries (Sask.), we find some very interesting and important language:  

The purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se but the right to "effective representation". The right to vote therefore comprises many factors, of which equity is but one. The section does not guarantee equality of voting power.

Relative parity of voting power is a prime condition of effective representation. Deviations from absolute voter parity, however, may be justified on the grounds of practical impossibility or the provision of more effective representation. Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. Beyond this, dilution of one citizen's vote as compared with another's should not be countenanced.

I want you to sit with the language of "effective representation" for a moment and consider what that means.  This goes back to the "Peace, Order, and Good Government" clause in S91 of the Constitution Act, 1867.  Not only do you have a right to vote, but you have a right that your vote is meaningful in selecting your representative.  

How does this apply to referendums?  A referendum is, of course, a form of "direct democracy" - that is to say that each voter is "heard" and in principle that is "democratic".  In such a situation, the voter is in essence becoming their own "representative" in the government.  

Here is where we can draw together other principles of law and raise some very pointed questions which should drive towards a process for evaluating the applicability of The Clarity Act.  

First, we have the "Reasonable Person" test described above, which simply asks "would a reasonable person assume this is a separation referendum" - pretty straightforward, I think. 

Second, we have to examine the question itself and ask another "Reasonable Person" question:  "given this question, can a reasonable person be an effective representative?".  This is a much more difficult question to answer, and it's where all of Smith's referendum questions ultimately fall apart.  

Making 'A or B', 'Yes or No' decisions on complex topics requires that the person be able to not only interpret the question accurately, but to have sufficient information at their disposal to make an informed choice.  Although generally a referendum question is a binary choice, there is nothing stopping a government from using other options, including multiple choices. 

I argue that the Clarity Act comes to apply here through an expansion of the Effective Representation principle.  If a reasonable person cannot come to an appropriate informed choice based on the question and readily available information on the subject, then in fact the referendum question itself is so flawed as to render the question invalid because the Reasonable Person cannot be an "Effective Representative".  

In other words, even though Smith's referendum doesn't directly entertain separation, a series of reasonable person tests can be applied to establish whether it is still a separation referendum. 

Part III - Generalizing To Referendums As A Whole

However, if we are going to ask for direct democracy, it has to be possible for individual voters to come to reasoned conclusions on the subject of the referendum in a reasonable amount of time using readily available information sources.  That means that not only is there a requirement that the information be accessible, but the information must be reliable and accurate.

This is where, when the government makes itself the proponent of a referendum question, that it must act prudently in its representation of the referendum itself and the surrounding information space.  Governing parties are prone to spinning things to suit their preferred narrative, but in doing so they may in fact be distorting the information space, rendering the voter less able to be an effective representative. 

So, the third dimension of this calculation is to ask whether it is reasonable to expect voters to wade through the readily available information in order to come up with a meaningful conclusion.  There may be contexts where this is possible, while other referendum contexts for any number of reasons have so polluted the information space that an elector would struggle to come to a reasoned conclusion.

The principle of Effective Representation comes into play for all referendums, and the following questions need to be asked:  

1). Is the question clear and readily answerable without the options presented substantially overlapping with each other?  (Basically the test the Clarity Act demands) 

2). Can an average voter come to an appropriately informed conclusion about the subject at hand without having to become a domain expert?

3). Is the information space reasonably accurate and factual, or has it become polluted with misinformation?  

Final Thoughts

In my opinion, all 10 of Alberta's referendums slated for this fall fail to meet fundamental clarity requirements: 

The questions are overly lengthy, requiring advanced reading skills that one would expect of a graduate of a post secondary degree program.  The separation question itself is a slippery piece of work and is internally inconsistent, which further muddies the waters.  Tricky wording is not a "get out of jail free" card for politicians to use.

The policy matters at hand are not trivial, and learning enough about the policies and policy objectives involved would take considerable time and study in order to come to a meaningful conclusion.  (Immigration is not a trivial topic domain, for example)

All of the questions before Albertans in October reside in information domains where considerable misinformation has already been poured into the domain.  

I expect that by mid-late summer, all of these referendums will be tied up in court challenges.