Heavily redacted documents show that Ottawa is seeking constitutional advice on Alberta’s independence from a top Crown lawyer who successfully argued in the Supreme Court that Quebec had no unilateral right to leave Canada after the narrow 1995 separation vote.
In response to a Freedom of Information and Privacy Act request by True North, the Department of Justice released legal correspondence on Alberta’s proposed independence referendum.
Citing solicitor-client privilege, a vast majority of the documents’ contents were blacked out, except for the names of those consulted.
Correspondence dated from May 15 to May 23 contains emails between the Department of Justice’s Senior General Counsel on Constitutional Law, Warren J. Newman; Senior General Counsel on Indigenous Rights and Relations, Uzma Ihsanullah; and Crown-Indigenous Relations Senior Director, John Topping.
Despite the Liberal government downplaying the magnitude of the Alberta independence movement, the documents indicate that Ottawa may be making contingency plans to constitutionally challenge a successful referendum, possibly at the Supreme Court level, by employing arguments of Indigenous rights.
Newman acted as co-counsel for the Attorney General of Canada in 1998 when the Liberal government under Jean Chrétien shut down Quebec secessionist arguments in the Supreme Court of Canada. The Court had agreed with the Crown’s arguments in its Reference re Secession of Quebec judgment.
The court ruled that Quebec could not legally secede from Canada on its own because the Canadian Constitution does not allow it, and that secession could only happen through negotiations involving all provinces and the federal government.
In a reflection on the 10th anniversary of the Supreme Court’s decision, Newman wrote that “the Supreme Court of Canada confirmed that unilateral secession would be an unlawful act under the Constitution and a violation of the Canadian legal order; a revolution.”
He added that even with a successful referendum, a province would not gain the legal right to break away. Instead, such a vote would “give rise to an obligation on all parties to the federation to negotiate terms and conditions.”
The department defended redacting nearly the entirety of the provided documents.
“You will note that certain records or portions thereof have been withheld under section 23 [solicitor-client privilege information] of the Act,” the department said in its response.
Newman also authored the 1999 book The Quebec Secession Reference: The Rule of Law and the Position of the Attorney General of Canada and has several academic articles on the constitution.
One email shows a Justice Canada lawyer exchanging pleasantries with Newman, while the remainder of the correspondence is fully redacted.
The inclusion of Crown-Indigenous Relations officials also confirms the government is weighing the role of First Nations in any future secession scenario.
Indigenous leaders across Alberta have spoken out against Premier Danielle Smith’s Bill 54, which lowers the threshold for citizen-initiated referenda and could pave the way for a future separation vote.
Still, constitutional experts say First Nations do not have the legal authority to veto a vote.
“There is nothing I’m aware of that would suggest that First Nations people could prevent those discussions from taking place,” Canadian Constitution Foundation lawyer Josh Dehaas told True North.
Newman agreed that a clear majority vote on a province’s desire to leave Canada would create a constitutional duty for all parties to negotiate.
“The conduct of the parties would be governed by constitutional principles: federalism, democracy, constitutionalism itself and the rule of law; and the protection of minorities. A political majority that did not act in accordance with the underlying constitutional principles would put at risk the legitimacy of the exercise of its rights. The conduct of the parties would assume primary constitutional significance,” he said. “Secession could not be achieved under the Constitution unilaterally; that is, without principled negotiation within the existing constitutional framework.”
Photos of the heavily redacted pages obtained by True North show nearly full-page blackouts, offering no insight into Ottawa’s current stance, even as Alberta separatists move closer to meeting the legal threshold for a province-wide referendum.