Alberta judge concerned about parts of ruling that threw out separatist petition

A lawyer for the pro-separatist Alberta Prosperity Project is in court seeking to restart the process for its proposed referendum on independence.

A judge has reserved her decision on whether to set aside a ruling that quashed an Alberta separatist group’s referendum petition, but says she has some concerns with parts of last month’s judgment.

The ruling in question found that the Stay Free Alberta petition shouldn’t have been issued under provincial law, and that Premier Danielle Smith’s government neglected its duty to consult First Nations.

Alberta Court of Appeal Justice Alice Woolley, hearing arguments Thursday for a potential stay of the ruling, said aspects of her colleague’s decision make her uneasy.

Woolley pointed to the other judge’s interpretation of legislative changes made last year to the petition process, which explicitly allowed the separatist group to reapply after its first application was delayed in court.

Those provisions led Justice Shaina Leonard to rule the petition should have never been issued, saying it wasn’t eligible for consideration again because it had already been rejected by Elections Alberta.

Woolley also pointed to Leonard’s ruling that issuing the petition set off a series of steps that were binding on the province, including implementing the result of a referendum if one is held, and a finding that Alberta’s top elections official can decide matters of law.

“Those three aspects of (Leonard’s) decision, on my review for the purposes only of a stay and the extremely limited record that is before me, cause me some concern,” Woolley told the virtual courtroom Thursday.

Woolley said her concerns shouldn’t be taken as a sign she will rule one way or another. She called it a “very complicated case.”

Jeff Rath, a lawyer for the petition group Stay Free Alberta, has applied for a stay of Leonard’s decision so that Elections Alberta can verify the petition’s signatures.

The group submitted its petition in May claiming to have collected nearly 302,000 names, but Leonard issued her decision days later before the verification process could begin.

Rath said after the hearing Thursday that he took Woolley’s concerns as a sign she’ll rule in the group’s favour either on the stay, or on its overall appeal of Leonard’s ruling. The provincial government is also appealing the decision.

“You can’t read much into stuff sometimes, but I certainly took that as very positive,” Rath said.

“I think that we got an extremely fair hearing.”

Stay Free Alberta’s petition called for a direct referendum question on the province quitting Canada.

Smith has cited the ruling, the separatist petition and a pro-Canada petition with 404,000 verified signatures as the reason she decided to put a separation question on the province’s Oct. 19 referendum.

The question asks Albertans whether they want to remain in Canada or hold a second, binding vote on separation in the future.

During Thursday’s hearing, lawyers for the First Nations who had originally challenged the petition argued against a stay being granted, saying it would harm the treaty relationship.

Paul Reid, a lawyer for the Blood Tribe, also argued against Rath’s claims that the Stay Free Alberta group and those who signed the petition were being harmed by Leonard’s decision by pointing to the fall referendum.

“The reality is the question that Alberta has put on the referendum ballot really does in a large degree address the concerns of Mr. Rath and his client,” said Reid.

“That is how I view the landscape.”

Woolley said she planned to issue her decision as soon as she could, but again noted the complexity of the case.

“It won’t be long, but it won’t be today.”

Jack Farrell, The Canadian Press