In this episode of The Critical Compass, Mike and James are joined by Keith Wilson, a constitutional lawyer who has been involved in the Freedom Convoy and is a strong advocate for Alberta independence. In this episode, we discuss Bill 14, Justice Feesby's decision, and the process for a referendum on independence.
00:00:00.000Welcome back to The Critical Compass. My name is Mike and this is my co-host James and we are very pleased to be finally joined by Mr. Keith Wilson. He's a constitutional lawyer here in Alberta, well known for his involvement in the Freedom Convoy. Other issues regarding Alberta independence currently, he's a strong advocate for. And that's why he joins us here today. We've had, Mr. Wilson, we've had quite an eventful 24, 48 hours.
00:00:31.340We sure have. As many of your viewers will know that I've heard by now that the Smith government introduced this past week, Bill 14. And I'd be happy to explain to you what that means and where that puts us for those who are seeking Alberta independence.
00:00:54.320We also had, um, Justice Feesby, uh, release his decision, um, immediately after Bill 14 was introduced, which is a pretty controversial decision. And I'd be happy to break down what, what that means and what it doesn't mean.
00:01:10.260Yeah, please. Um, yeah, feel free to, uh, expound, take your time. Um, let maybe start with Bill, uh, Bill 14, just, just introduced yesterday and, and what that means in, in respect to what we just saw announced today.
00:01:23.940Sure. So, and let's start with some really basic building blocks to help people understand how the pieces fit together and what, what parts are moving and which parts aren't. So, uh, you know, uh, as I've explained many times in different podcasts and on, uh, podiums is that Canada is a really unique democracy compared to other democracies around the world.
00:01:49.960It's unique in that Canada is just about the only democracy where our highest court, the Supreme Court of Canada has said in the 1998 Quebec reference case, that if the majority of the citizens of a province hold a province-wide, or if there's a province-wide referendum and the majority of the citizens vote on a clear question to become independent,
00:02:18.680to become their own country, to leave Canada, that they can do it. Okay. So that's pretty remarkable. Well, in Alberta, we have a referendum statute that allows the provincial government to call a referendum on a whole broad range of issues.
00:02:36.720You might remember that Jason Kenney, when he was premier held a referendum on, on equalization and on daylight savings time. Okay. So the Alberta government can at any time that it wants call a province-wide referendum and set the question that will be put to the vote on independence.
00:02:56.720On independence. But we have another layer and expansion of democratic principles in Alberta, where we have this statute called the Citizen Initiative Act. And that's where the Alberta government, and this predates Premier Smith,
00:03:14.720the statute says, among other things, that if a group of citizens come together, and they want to force the Alberta government to hold a referendum, those citizens can apply to start a petition, a formal legal petition, not the one the guy signing, come to your door to stop the community dump or, you know, whatever.
00:03:42.720A real legal, legally defined petition. And if, in Alberta, if over 177,000 Albertans over 120 days, they get enough of those signatures, if they hit that threshold, then that forces the Alberta government to hold a referendum, in this case, on independence.
00:04:06.880Unfortunately, you know, legislation, you know, legislation evolves, statutes evolve, and they get amended, and they get changed, and they get amended, and that's normal.
00:04:18.240And a number of years ago, there was an amendment to the Citizens Initiative Act that was dealing with some unrelated issue, and they had some wording in it, and the legislature changed it, but they left a little clause in, in section 2 sub 4.
00:04:34.240And the clause in 2 sub 4, says something along the lines of, a petition question can't contravene the Charter of Rights and Freedoms and certain constitutional principles.
00:04:47.140Well, that doesn't make sense in its own right, because it's not until there's a referendum and there's a negotiation with the other provinces after successful referendum that Alberta can become independent anyway, but that wording's there.
00:05:05.400So, when the Alberta Prosperity Project in the summer filed its application for a petition for a referendum question on independence, the chief electoral officer said,
00:05:20.420Hmm, I'm going to use this old goofy section, and I'm going to send it to the courts and have the Court of Kings bench decide whether or not this question that APP is putting to the petition, whether it violates the Charter and these other things, contravenes it.
00:05:38.520So, that court case started, and you guys have probably covered stuff on that, and there's a wide awareness of it, and Jeff Rath and Eva Chipiuk, my colleagues, have been on their feet arguing that case and writing the briefs, and I've been helping in the background.
00:05:52.400So, Justice Feesby is the judge who's had that case, and it's bogging the whole process down.
00:06:02.880So, you know, the Lekasics, Thomas Lekasic had his stay in Canada petition go through smoothly.
00:06:09.520The chief electoral office, you know, red carpet treatment, come on in, get her done.
00:06:15.560Independence guys show up, all of a sudden it's legal trickery and legal this and legal that.
00:06:21.520I wanted to ask you on that specifically.
00:06:24.900So, it seems like this Citizen Initiative Act, Section 2-4, right now it's dealing with the hypothetical that the result of a referendum might contravene, because they went down all these passages that, well, it might do this, might do that, might do that.
00:06:43.480But technically, with the Forever Canada question, the no result from that has the same hypotheticals, so why wouldn't that be subject to the same sort of process in court to deal with those hypotheticals of a no vote on the Forever Canada's referendum question?
00:07:04.700Well, and your question, and you're pointing out that contradiction illustrates how defective that section is, right?
00:07:12.180Like, is there a double standard, or is the chief electoral officer abusing his discretion, right?
00:07:22.200And so, and one of the details I may not have mentioned is that, just going back to basic principles, is what the Supreme Court of Canada said is that, in the 1998 reference case, is that where a province holds a province-wide referendum and a clear majority vote in favor of independence,
00:07:44.420that triggers a positive legal duty on all the provinces, the federal government and the First Nations to sit down and have good faith negotiations and agree on what the independent country will look like and what rights will carry forward and which ones won't, okay?
00:08:02.060So there's a mechanism built in our constitutional framework to deal with that thing.
00:08:07.120Why would you deal with it hypothetically way, way, way, way at the start of the process when the group requesting the petition may not get the signatures, and if they do get the signatures and force the referendum, it may not pass, right?
00:08:21.020It just seems nonsensical to empower the courts to intervene and thwart the political will in the democratic process.
00:08:29.300So the Alberta legislature and the Smith government watching what's going on, and this week they finally said enough.
00:08:36.380It's their job as the lawmakers, as the legislature, to clarify and take steps when their legal intentions are being misunderstood.
00:08:49.180Canada is a parliamentary democracy, and what a parliamentary democracy means, we have a principle of parliamentary supremacy, and parliament means the legislature, whether it's the federal House of Commons or whether it's a provincial legislature.
00:09:04.700So we have legislative supremacy with the elected officials.
00:09:13.820That way, if there's bad laws, you can fire the people that made them at the next election, and you can replace them with people who share your values and make laws that are reflective of your society and your community and your culture and what your aspirations are.
00:09:27.700So it's a fundamental principle that we have the principle of parliamentary supremacy, so that means at any time the legislature can make new laws, at any time they can amend existing laws, and they can repeal existing laws.
00:09:44.660And that happens all the time, when the NDP got into power, they changed a whole bunch of laws the conservatives had, and before them, the conservatives changed a whole bunch of laws that the social credit government had, and before them, and before them, you know what I'm saying?
00:10:01.400So the principle of parliamentary supremacy is that the legislature makes the laws, they can amend laws, and they can even do it retroactively.
00:10:53.140That reconciliation of how the constitutional rights and charter rights work will be dealt way with down the road, after the referendum, in the negotiations with the other provinces.
00:11:04.280And they've said, with all due respect, Justice Feesby, close the case.
00:11:10.240This is not something that should have ever been opened.
00:11:27.960It doesn't say the Judges Initiative Act, right?
00:11:30.820So the idea is that the legislature has now acted to achieve the original legislative intention.
00:11:39.800So what will happen next is the Alberta Prosperity Project will have 30 days to reapply, submit their question again or change it if they want.
00:11:53.160And then the chief electoral office have 30 days to review and approve it and authorize the forms and the specific petition forms.
00:12:00.480It has to be an official form coming from Elections Alberta.
00:12:04.740Validate the canvassers, all these things.
00:12:06.820Not just anybody can sign up at your door with any piece of paper.
00:12:09.760Make sure you only sign an official petition.
00:12:12.400And then the Alberta Prosperity Project will have 120 days going into next year to collect the 177,000 signatures.
00:12:24.360And then once those are filed and validated, then it will be incumbent upon the Smith government to, in the fall, I suspect October, to hold a province-wide referendum on independence.
00:12:38.460So that's what, what's coming and this major obstacle, this major distraction, this major waste of time, this undemocratic thing that's been occurring of judicial intervention will, will have been remedied.
00:13:29.260Now, he goes into all this hypothetical analysis and this political stuff about treaties and treaty rights that he has to use his imagination to concoct a breach of because no one's put a proposal to the First Nations and the First Nations haven't been asked to express a view on the proposal.
00:13:50.260It could very well be that one of the outcomes of an independence vote and the negotiation with the federal and First Nations is that Alberta, the new Alberta government for the new country of Alberta says, First Nations, your lands will continue to be reserve lands in Alberta.
00:14:08.900It's less than 1% of our land base, no big deal.
00:14:12.300Um, uh, you will continue to be administered by the federal government in Ottawa, their government, the Canadian government.
00:14:19.460You will continue to have your treaties administered by the government of Canada.
00:14:38.900So it's not even that would be the bare minimum change.
00:14:42.120So just, I was really surprised and disappointed at Justice Feesby's actions.
00:14:49.040I think they're inconsistent with the rule of law.
00:14:51.680I say that with the greatest of respect.
00:14:53.920Um, and there was this whole political overtone when you get a chance to read it.
00:15:00.060And, and, and it's very shocking to me, uh, that the judge would have done this.
00:15:04.800I think the proper step for the court, cause I've encountered this before,
00:15:08.120where I've had cases before the courts and the law changed in real time, right?
00:15:13.900I remember one, I was getting ready in the morning.
00:15:16.280This is pre COVID, uh, precedent setting case for, uh, right to farm laws in central Alberta.
00:15:22.740And just for some reason, I was doing my final prep early in the morning, reading my briefs, just ready to head out the door to head down to the courthouse.
00:15:30.900And I got a blip on my screen, a notification, the Supreme Court of Canada had just released the decision.
00:16:20.460And it's saying this case needs to be concluded cause the legislature believes it's inconsistent with its legislative intention and it has supremacy.
00:16:35.620And once the legislature proclaims in a couple of weeks it into law, I will be dismissing this case because I have no jurisdiction to deal with it.
00:16:45.380That should have been what happened, but instead he was furious.
00:16:48.760Apparently I was not in the courtroom, but I heard that from the lawyers that were, and he added something and went into a tirade about the government.
00:16:57.080Um, and, uh, I'm very disappointed in that.
00:17:01.260It has no impact, none on the ability of the Alberta government to hold a referendum on independence.
00:17:11.520It in no way changes the rules around an independence vote by the federal provincial government.
00:17:18.500It in no way changes what happens after that, as has been directed by the Supreme Court of Canada and the 1998 reference case, which is if there's a successful vote in Alberta, clear majority in favor of independence on a clear question.
00:17:33.680And the provincial governments, the first nations and the federal government are all required to enter into good faith negotiations as to the terms of Alberta becoming, uh, a free and independent country.
00:17:48.040And because bill 14 amends and takes out those mischief words, it also has no impact on the process going forward for the Alberta prosperity project and the chief electoral officer and the election and the petition drive.
00:18:06.320And, uh, the validation process for that petition.
00:18:10.820Well, that's, that's really good news then.
00:18:12.400So, you know, regardless of the, you know, we can speculate on the, on the judge's motivations and, and kind of what you said there about his demeanor in the courtroom is pretty telling.
00:18:23.000That's, that's actually fairly shocking to hear, but, um, is it then, I don't know if you're able to say this or not, but.
00:18:30.160Would it be the, your legal opinion that once bill 14 is, is, uh, passed in the legislature, does that render this ruling moot or does it have any stickiness after, after the fact?
00:19:17.540So it's, uh, and that's why it looks like it reeks of being a political exercise, which, uh, I was very surprised at.
00:19:23.780But, and you know, that's one of the thing that I don't know, I haven't seen an opinion poll, but if I had to guess, I'd suspect that confidence of Canadians and Albertans in particular in our justice system is at a very low point and maybe all time low.
00:19:36.340I don't know, but it's at a low point.
00:19:38.620We've all seen the two tier justice stuff.
00:19:41.520You know, if you're an immigrant and you do some violent crime, the judge is all worried about your immigration status.
00:19:47.180And, uh, but if you're Tamara Leach and you embarrass the prime minister up trying to fight for charter rights and the rights of unvaccinated Canadians who've having their rights violated, um, you know, you, you get convictions and almost two years of house arrest.
00:20:04.480You know, and, uh, in addition to the 49 days that they put her in jail and the 10 days in solitary confinement, um, you know, we all have seen this two tier justice system.
00:20:17.820Um, if you're a law abiding gun owner, you're a terrible human being, but if you're a criminal in Toronto with a legal handgun smuggled in from the U S into a smashing grab, we're supposed to feel sorry for you.
00:20:30.740It's just so weird to keep going, we've all seen this two tier justice.
00:20:34.920So, um, justice is supposed to be blind.
00:20:38.640Uh, lady justice is supposed to have a blindfold on, and we've seen remarkably in Canada that, that, uh, lady justice doesn't have a blindfold on anymore.
00:20:47.640And it seems to be, uh, more related to whatever political group or category you're slotted into.
00:20:54.520Um, so I'm really hopeful that in time, the courts will get back to being blindfolded and not judge people by their politics and not seek to be political actors, but just administrators and interpreters of the law.
00:21:11.460So my one question with this is even, even though Fiesby's decision does not have any legal weight now, um, I think it still has some political weight because it will be used by those who are uninformed or who don't fully understand the situation.
00:21:32.840And they'll point to it and saying, well, this is why the APP's whole petition is invalid.
00:21:38.520And they'll use that as ammo to smear or dismiss.
00:21:42.660And I think if you wanted to try to give ammo to, to the other side, Fiesby did pretty much everything that he could to try to tank any future movement or any future petition with this.
00:21:59.040And I think it'll be worse than that, James, because I don't think they'll even be that nuanced in their attacks.
00:22:06.120I think they'll, people will, our opponent, people who are opposed to this, to independence, uh, will cherry pick from that decision and use it as an argument as to why Alberta can't become independent.
00:22:24.080Like they'll move it, they'll, they'll, they'll inflate it, they'll, you know, they'll conflate independence vote with, uh, the process for a citizen's initiative petition and, and they'll create confusion.
00:22:37.760You know, like I've spent the last year and a half trying to get people to understand really basic things.
00:22:46.300Like somebody will say, well, Alberta can't separate because all of the crown land in Alberta is owned by the federal government.
00:22:53.620It's like, actually, no, it's a tiny, tiny percent.
00:22:57.060There's a provincial crown and a federal crown.
00:23:08.780You might need to read the 1930 natural resources transfer agreement, which is a constitutional document that transfers ownership and control of all of the, the unoccupied land.
00:23:19.500So all of the land in Alberta, um, uh, um, and the water and the oil and gas and minerals from the federal crown to the provincial crown, both in Alberta and Saskatchewan.
00:23:30.900So there's just so much misunderstanding about, uh, basic civics and basic, how our political system works today and is structured and legally constitutionally allocated that, uh, that lack of understanding combined with people's emotional political agendas.
00:23:48.540They'll take clauses from this agreement, from this decision and create all kinds of confusion.
00:23:54.000But you know, we anticipated this, right?
00:23:56.360Like anybody who had this discussion, I was just at an interview today with the rebel news with Ezra Levant and Ezra's like, this is an illustration of how they're going to use lawfare and all these things.
00:24:08.940Well, I think I've had three interviews with Ezra over the last year.
00:24:12.780And in the very first one, when him and I talked about how the closer we get, Alberta gets to seeming to be independence, the more the attacks are going to come, the more the legal challenges are going to come.
00:24:23.640And the more the interventions are going to come, more smear campaigns, all those sorts of things.
00:24:31.560That's, that's a huge thing that, uh, you know, James and I have identified in, in a few, a few of our interviews that it's going to be a gigantic hurdle to overcome for the, even, even for people who are pro independence, they still, you know, might have a bit of a, uh, underlying kind of defeatist attitude about it.
00:24:46.960Cause it, it seems like such a, a lofty goal and a huge task and such a big undertaking.
00:24:52.980Um, but especially for those who are on the, maybe the opposite, this really shouldn't be a left, right issue, but it kind of is.
00:24:59.880Do you, uh, Keith have sort of a, maybe an elevator pitch that you've been working on or that you've, you know, because you've said it so many times that you would say to somebody who, uh, somebody may be on the, on the leftmost side of the political spectrum, who's very, very against the notion of Alberta independence, why it would actually even be better for them.
00:25:19.960Uh, I would say that the reality of the structure of Canada in terms of who gets to make the policies and laws in Canada is skewed and there will never be a time, nor has there been a time where Albertans have a voice in that process.
00:25:43.380And so if you want to live in a place where your voice matters, regardless of what that voice might be, you're going to be better off.
00:25:53.860You're going to have more democratic power by being in an independent Alberta.
00:25:59.720And in addition to that, you're going to be more prosperous because what you can do is look at your paycheck, look at the pay stub.
00:26:07.140When you get your, your notification of your pay and look at your gross pay and look at your net pay.
00:27:30.480Um, because of the need to get accurate authoritative information out as we engage in a further information warfare process, that's going to become increasingly from the federal government.
00:27:44.120And those on the left, um, uh, I've just, uh, actually have set up a new, uh, YouTube channel where I'll be providing updates on things.
00:27:55.620And you'll be able to find that under, uh, Keith Wilson, Casey, it stands for King's Council.
00:28:02.320Um, or, uh, my Twitter handle, you can similarly search it, which is at IK Wilson.
00:28:10.020So, uh, uh, I will, but, uh, but I'd like to come back on your, your show as well and have a broader discussion about some of the other things we haven't had a chance to talk about today.
00:28:19.080Cause I've been meaning to do that for quite some time and, uh, but there was such breaking news here that's so important and sort of complex and confusing.
00:28:29.780I was really grateful that you guys, uh, adjusted your schedule to have me on.