Referendum 2026: Constitutional Questions
This is the third of three posts dealing with the upcoming referendum. Similar preamble to the other two: it’s no surprise to anyone who knows me - or reads what I write - that I am 100% against separation, think the referendum is absurd, and plan to vote ‘no’ on the nine questions as presented. In the first related blog, I said 8 of 9 - more on that later. I drew heavily from lots of different sources, and they are linked at the bottom. The voting process will be long and cumbersome (by design), and people will be dissuaded from staying in lineups. Hand-counting and actively avoiding tech solutions will produce inconsistent and questionable results. And, there is a targeted campaign of anti-immigrant and xenophobic sentiment, which I warned about several months ago in another post.
This is where we depart from reality a bit. The following questions are completely performative, as Alberta doesn’t have the power to make any of these proposed changes unilaterally. And in at least one case, the desired change is about as close to impossible as can be.
There has been a very concerted effort to pivot the separatist argument away from full separation and independence (or the ludicrous 51st state idea) to a much softer, “just asking questions” vibe. They are framing the separation question - bundled with these constitutional ones - as “leverage” for negotiations with Ottawa. While I think this is a sign of panic and doubt because of their consistently flat support (confirmed by multiple polls over several years), I also think it makes these four questions appear more legitimate in the broader context. They’re not, and here’s why:
“Constitutional Questions”
Q6 - Appointing Judges
I don’t really have a lot to say on this. It’s irrelevant at best. Even a strong yes changes absolutely nothing. Federal courts should have federal judges, and the law should be applied evenly across the country. Federal judges should remain independent of provincial politics. The rest of Canada recognizes and supports this.The federal government also pays the salaries of federally-appointed judges. Does Alberta really want to take that salary addition on?
Amending the Constitution to allow provinces to appoint superior court judges would require a constitutional amendment under the general formula, requiring resolutions to be passed by the Senate, the House of Commons, and at least seven provincial legislatures representing at least half of the national population.
Q7 - Senate
Like Q6 this is irrelevant and performative. Abolishing the senate is a near impossibility. It would require the unanimous consent of Parliament (both the House of Commons and the Senate itself) as well as all 10 provinces, according to the Constitution Act, of 1982.That’s an even higher bar than the other three “constitutional” questions.
However, this is the only one I struggle with. Alberta is mathematically under-represented in the senate, and that is something that should be reviewed and corrected. Fundamentally, I'm not a fan of the current senate, but I have zero confidence in the AB government to work effectively with other provinces and the feds to enact meaningful change.
I'm not sure full abolition is the answer. So, I'm a "no" on this one as well, but it's not nearly as obvious for me as the rest. The "sober second thought" is a pretty good idea in theory, especially when we have majority governments. An elected one could face the same issues as an elected parliament with ideology and party platform superseding the best path forward. I know you can argue that with appointed senators too, but their terms are much longer than most governments. For example, there are 13 Harper appointees and 2 Cretien ones still sitting.
There’s also been a lot of talk about the idea that the senate as a whole is partisan, and currently comprises nothing but Liberal cronies. Here’s the current roster by grouping / caucus:
Independent Senators Group - 40. Committed to a non-partisan Senate and the modernization of the Upper House. https://www.isgsenate.ca/single-post/2019/04/03/independent-senators-seek-compromise-to-partisan-impasse
Canadian Senators Group - 18. This caucus broke from the Independent one in 2019, wanting to ensure “regional interests” were represented, and because they felt the Independent group was too large. https://nationalpost.com/news/canada/new-senators-group-of-11-could-complicate-liberal-efforts-to-get-legislation-passed
Progressive Senators Group (these are the “Liberals”) - 17. Began as a group expelled by Trudeau as he sought to make the Senate non-partisan. They chose to sit first as a Liberal group, then changed their name to the Progressives. https://www.cbc.ca/news/politics/justin-trudeau-removes-senators-from-liberal-caucus-1.2515273
Conservative - 12. This is the only group formally linked to a political party. https://www.conservative.ca/team/senators/
No affiliation - 8
Vacant - 10
It’s also very important to note here that the question does not ask about Senate reform. It only addresses a desire to abolish, which again is a near impossibility.
Q8 - Funding Opt-Outs
This one feels like a departure from the rest. Instead of "we're independent" " we're self-sufficient" "we're Canada's economic powerhouse", the question implies "give us an allowance, but don't tell us how to spend it.". There is some merit to amending or reviewing conditions to funding, or to having provinces have more flexibility in spending decisions. That was tried decades ago with Meech Lake and failed. But this isn't that. It demands full funding with zero conditions. Even with (deeply unlikely) overwhelming referendum support, this will never go anywhere.
Like Q6 & Q9, this would need to be passed by the Senate, the House of Commons, and at least seven provincial legislatures representing at least half of the national population. That is an incredibly high and unrealistic bar. Also, enshrining an opt-out into the constitution undermines federal funding of essentially any and every program. Aside from the actual separation question, this feels remarkably like the most blatantly separatist question on the ballot, but the one that still includes a financial string with no conditions.
The government’s referendum website states, “Allowing provinces to opt out of Ottawa's programs in provincial jurisdiction with full compensation allows each province to tailor services to the needs of their population.” But it doesn’t state what those needs might be, or how they would be any different from any other province.
Q9 - Federal Paramountcy
Federal law needs to supersede provincial, just like provincial supersedes municipal in most cases. Especially from a government so prone to using the NWC pre-emptively, this should be concerning for its future implications. It's the fourth "constitutional" question that is similarly unlikely to go anywhere, but it's probably the most insidious.
This level of attempted overreach is surprising, but I wonder how Albertans would feel if BC or Manitoba with traditionally left-leaning governments were vying for the same. Overriding national infrastructure like pipelines, for example. Federal authority (and funding, to tie in with the previous question) is what allows national infrastructure projects to proceed. Smith and the UCP know this, and they seem to support it when it suits their causes. But they’re also trying to employ an American style “states’ rights” argument here that is problematic. I also question whether supporters of this initiative are thinking about the potential implications of a future where all provinces have this opt-out power.
Not only did Carney just announce a major project that requires exactly this kind of authority and funding, but Smith celebrated it. That announcement was on the same night that I was watching Pierre Poilievre live in Medicine Hat make very strong federalist arguments, specifically around national infrastructure projects. That kind of cross-party political consensus is rare, which only underscores how vital federal paramountcy is. Undermining federalism is not likely to garner widespread support, and like Q6 & Q8, this would need to be passed by the Senate, the House of Commons, and at least seven provincial legislatures representing at least half of the national population.
Sources:
https://www.separationfacts.ca/
https://www.cbaalberta-referendum-analysis.com/
https://knowthenine.ca/ - biased against separation and imploring people to vote “no” on all nine subsequent questions.
https://albertataxpayers.ca/ - thoughtful and balanced, but decidedly skewed toward fiscal and financial implications of the referendum questions.
https://www.thenonprofitchamber.org/blog-news/before-you-vote-a-nonprofits-guide-to-albertas-october-referendum - factual and procedural, but through a non-profit lens.
https://albertareferendum2026.ca/ - biased in favour of a ‘yes’ vote on the 9 subsequent questions. Lots of misleading language, or times where context is deliberately left out. Not explicitly in favour of separation, but again uses language on this matter which is deliberately unclear.
https://albertareferendumb2026.ca/ - a spoof website with surprisingly good information (note the extra ‘b’)
https://www.albertaprosperityproject.com/ - obviously very biased to separation and a ‘yes’ vote on all 9 subsequent questions.
https://stayfreealberta.stayfreealberta.workers.dev/ - clearly biased to separation. Mostly just a site collecting donations and newsletter registration.
https://www.forever-canadian.ca/en - kind of similar to Stay Free Alberta in that it’s mostly a site mobilizing and collecting registrations.
https://www.takingbackalberta.net/ - obviously quite biased in favour of separation. Very xenophobic and anti-immigrant.
https://www.elections.ab.ca/elections/referendum/
https://www.cbc.ca/news/canada/calgary/guide-alberta-separatist-stay-referendum-9.7217218
https://albertatransitioncouncil.com/ - the “serious” arm of the Keith WIlson-led Let Alberta Decide, ostensibly working on policy and a legal blueprint for separation.
https://www.albertaandthewest.ca/ - Manning Foundation
https://www.cbc.ca/news/canada/calgary/alberta-referendum-need-to-know-9.7345261 - CBC breakdown of questions
https://www.thewrit.ca/p/alberta-referendum-poll-tracker
The loss of an objective reality is perhaps the most dangerous,
Adam
