If the LEAVE Canada petition is successful, is the Alberta government required to call a referendum on separation?
Summary
The legislation is unclear on this issue. However, even if it is required to call a referendum, there is no longer an outside date by which it must be called.
Analysis
As a starting point, the LEAVE Canada petition is categorized as “constitutional”, because Alberta’s leaving Canada contemplates a change to the constitution. The response required by the Alberta government to a successful constitutional petition is different from the response required to a policy petition, like that brought by Thomas Lukaszuk, which does not contemplate a change to the constitution.
If a constitutional petition is successful, Section 12(1)(b) of the Citizen Initiative Act requires that the Chief Electoral Officer must submit that proposal to the Minister of Justice. Under Section 16(1), the Minister is then required to refer the proposal to the Lieutenant Governor in Council (effectively, the Cabinet) “for the purpose of a constitutional referendum in accordance with the Referendum Act”. Except as provided in Section 16 of the Citizen Initiative Act, the Referendum Act applies to that referendum.
Section 1 of the Referendum Act says that the Lieutenant Governor in Council may order that a referendum be held on any question relating to a possible change to the constitution.
That leads to the question whether the requirement under the Citizen Initiative Act to refer the proposal to the Lieutenant Governor in Council “for the purpose of a referendum” means that the Lieutenant Governor in Council is required to order that a referendum be held or whether, after it receives the referral of the proposal, the Lieutenant Governor in Council retains the discretion under the Referendum Act to order or not to order a referendum.
Until recently, the answer to this question was clear. Section 16(3) and (4) of the Citizen Initiative Act went on to specify a date by which the referendum must be held. As the Act required that the referendum be held by that date, it was clear that the Lieutenant Governor in Council was required to order that the referendum be held. However, this requirement was repealed by Bill 26, effective May 1, 2026, giving rise to the current ambiguity.
Even if the Lieutenant Governor in Council is still required to order a referendum following a successful constitutional referendum, an outside date for that referendum is no longer specified. The absence of a specified outside date may operate in practice, at least for the immediate future, as a discretion on the part of the Lieutenant Governor in Council not to call the referendum at all.
Background Information
Citizen Initiative Act
Section 12(1)(b)
If the Chief Electoral Officer determines under section 10 that the requirements of section 6 have been met and that the prescribed reports under Part 3 are complete with respect to an initiative petition, the Chief Electoral Officer shall … in the case of a constitutional referendum proposal, submit a copy of the proposal to the Minister, ….
Section 16 (1)
On receiving a copy of a constitutional referendum proposal from the Chief Electoral Officer, the Minister shall refer the constitutional referendum proposal to the Lieutenant Governor in Council for the purpose of a constitutional referendum in accordance with the Referendum Act.
Section 16(3) Repealed effective May 1, 2026
Subject to subsection (4), a referendum must be held on or before the date fixed for the next general election under section 38.1 of the Election Act.
Section 16(4) Repealed effective May 1, 2026
If the date fixed for the next general election under section 38.1 of the Election Act is less than one year after the date on which the Minister received a copy of the constitutional referendum proposal under section 12(1)(b), the referendum must be held before the general election following the general election referred to in subsection (3).
Referendum Act
Section 1
The Lieutenant Governor in Council may order that a referendum be held on any question relating to the Constitution of Canada or relating to or arising out of a possible change to the Constitution of Canada.