Changes to Canadian Constitution would require agreement of voters, several levels of gov’t: Alberta law prof

An upcoming referendum in Alberta will ask questions about making changes to Canada's constitution. CTV News Edmonton's Connor Hogg has more.

With Alberta’s premier defending her government’s plans to hold a fall referendum to pose a series of questions to residents, including how they would like the province to deal with the Constitution, one public law professor says if voters came out in favour of amending it, Alberta would need cooperation from the other provinces and the federal government.

And one question of Alberta would be: What would it agree to do in return for changes agreeable to the province?

Of the nine questions Premier Danielle Smith said in a televised address Thursday night the province plans to ask in a referendum this fall, Albertans will be asked if they want to see the federal senate abolished and grant provincial authority in three areas, including:

• prioritizing provincial laws over federal ones in cases dealing with provincial or shared jurisdiction
• having the option to opt-out of federal programs that deal with provincial areas such as health care, education and social services while still receiving associated federal funding; and
• holding the ability to select justices appointed to the provincial King’s Bench and appeal courts.

“It makes sense that your judiciary would draw from a pool of people who understand Alberta and who are aligned with Alberta,” Smith told media Friday in Calgary, less than a week before her United Conservative government introduces its annual budget. “So it does make sense that we would appoint at the higher court levels.”

Gerard Kennedy, a public law professor at the University of Alberta, says the proposed amendments to the Constitution would need Ottawa’s cooperation, while several would require backing from other provinces.

On the question of selecting justices, for example, Kennedy said he “would be surprised if the federal government would just be willing to give this power up.”

“Clearly, a referendum couldn’t force them to do so, but what it would do, I suspect the premier thinks it would give her leverage in asking the Prime Minister to agree to this,” Kennedy told CTV News Edmonton on Friday, pointing out that, in order for an amendment to the Constitution to occur, seven provinces, 50 per cent of the population, the House of Commons and the Senate all have to agree to it.

On the question of opting out of federal programs but still receiving full funding, again like the judges’ question, the province would need support.

“Alberta says, to some extent, that it merely wants to be treated the same way as Quebec, but there, national unity concerns are clearly at play,” Kennedy said. " “There’s nothing really other than potential national unity concerns or just genuinely persuading the federal government on the merits of the idea that the province really has unless it’s going to offer something.”

With files from CTV News Edmonton’s Connor Hogg