How to Read the Referendum Question: Rights, Responsibilities and the Rule of Law (Constitutional Toolkit)

By Lesley Ukwu (Articling Student):  

Your rights and the Referendum

The provincial government is seeking the public’s opinion in the upcoming Alberta referendum which weighs in on constitutional issues and matters of public interest. In compliance with the Referendum act, the Alberta government has decided to a standalone referendum where eligible voters an opportunity to participate in immediate democratic decision making. This means the eligible voter has the responsibility of informed participation which involves an analysis and understanding of the question put to the electorate, an understanding of the options and the impact of a yes or no vote on issues such as:

• Existing constitutional protections and charter rights
• Indigenous and Treaty rights as discussed in our previous blog and
• The responsibilities of the government as we know it and going forward.

The Need for Public Legal Education

Inadequate public legal education regarding the responsibilities of civic participation can compromise meaningful engagement in a referendum. When voters are not provided sufficient information, the results may simply reflect the success of whichever side is better at mobilizing its supporters to turn out, rather than the true majority will and informed preference of the broader population. This article aims at providing public education which sets out to present a nonpartisan framework for reading and understanding referendum questions.

The Rule of Law and the Referendum

Throughout the referendum process, the rule of law will continue to apply. This should ensure the decision makers framing the referendum questions and the entire process remains within the limits of Canadian Constitutional values. Where questions of jurisdictional overreach or excessive use of government power arise, the courts remain empowered to determine whether the action or process complies with legal requirement under the constitution and referendum act. In this way, the rule of law ensures neither government nor majority is above the law.

Your Civic Responsibility

The public is involved because a referendum provides a democratic mechanism for addressing difficult or contentious questions through a vote by eligible electors. Which in this case are questions that address federal jurisdiction and constitutional reform, usage of provincial resources and balancing rights in relation to the current citizen-initiated petition concerning whether to stay in or leave Canada.

However, in a bid to communicate the questions clearly to the general population there could be an oversimplification of specialized areas of public interest. To avoid misinterpretation, the wording of the question requires an active voter to conduct an assessment of the meaning, pros, cons, and implications of the intended voting decision before going to the ballot.

Public Impact from the Referendum

Referendums, when used properly, can be a tool for significant public change. In the upcoming Alberta referendum, the government has presented a mix of both constitutional and public interest questions. A “yes” or “no” vote to these matters goes far beyond the immediate debates and have broad implications for individual rights, public institutions, the social contracts and relationship between the government and its people as we know it. On account of the lasting impact of the referendum results, using the practical checklist below allows Albertans to evaluate the precise scope and legal implication to each referendum question before casting a ballot.

Check your understanding: Consider the following questions to help determine whether you understand what is being asked and what may follow from the outcome.

1. What is the question asking?
2. What could change if it passes? For example, is the vote asking to start, restrict or stop a benefit?
3. What does the law say?
4. What evidence and perspectives should I consider? (accounting for political, religious, racial, biases etc.) and have you objectively analysed the current law, lived experiences, and existing facts, vis a vis the referendum questions?
5. What happens after the vote? For example, who could be affected, what is at stake, what are the consequences of each outcome?

A referendum gives eligible electors an important role in democratic decision-making. The rule of law continues to apply before, during, and after the referendum process. Understanding the question, its legal context, and its potential consequences is therefore an important part of meaningful democratic participation. This includes the rights and freedoms protected by the Canadian Charter of Rights and Freedoms and the broader constitutional framework established by the Constitution Act, 1982.

Image credit: Alberta Civil Liberties Research Centre (ACLRC). Concept and prompts provided by ACLRC; image generated using ChatGPT.