Danielle Smith’s separatist circus comes with a hefty price tag

If Alberta refuses to act responsibly, citizens should hit it where it hurts and demand financial damages in court

Can Albertans sue the provincial government for the harm caused by its gross incompetence? It’s not just a hypothetical question.

When the majority of Albertans suffer material harm as a result of decisions the government makes, a case could be made that citizens have a right to seek legal recourse.

Have a look at the Alberta Bill of Rights, which was established way back in 1972. Among its protections is a commitment to safeguard the right of the individual to liberty, security of the person and enjoyment of property, and the right not to be deprived of these except by due process of law. It also protects the right to equality before the law and the protection of the law.

Amendments to the act passed in 2024 include allowing the court to issue remedies, such as awarding damages when the Alberta Bill of Rights has been breached. Before those changes, the legislation offered few ways to enforce those rights in practice.

That matters because governments are not free to act recklessly without consequences simply because they call their actions “policy.” Once the government materially interferes with protected rights or causes demonstrable harm, citizens are entitled to ask whether legal limits have been crossed.

Many would agree that recent actions of the government have indeed caused harm and violated the rights of citizens. By providing a public platform to separatist extremists, the United Conservative government has fueled a toxic debate that has already harmed the economy, made citizens feel insecure about their future, and opened the door to future conflict that could, in the worst case, escalate into violence.

At the very least, this contradicts the Bill of Rights’ guarantee of “security of the person and enjoyment of property.” It’s hard to feel that one’s future is secure in a province that tolerates a group of radicals who illegally distribute personal information in voters’ lists, seek support from the U.S. administration to break up the Canadian Confederation, and show little regard for the treaty rights of Alberta’s Indigenous people.

Indigenous people, in particular, have reason to argue that allowing a separatist vote, thankfully temporarily blocked by the courts, is a betrayal of the right to equality before the law and the protection of the law. Indigenous leaders have argued that separation discussions could directly affect treaty relationships protected under the Constitution.

Even if the separatism talk ends tomorrow, which it will not, the province will have suffered long-term economic harm. A year ago, Nancy Southern, chief executive of ATCO, said Alberta separatism sentiment was hurting the investment climate. Businesses are losing the confidence they need to make significant investment decisions, she said.

Businesses across Alberta are nervous. In a survey done in cooperation with the Alberta Chambers of Commerce and released last week, the Calgary Chamber reported that 28 per cent of businesses surveyed across the province said talk about Alberta’s separation from Canada was affecting their business, and 88 per cent of them said the impact was negative. More than half of those respondents said separation talk was affecting the provincial economy, almost entirely negatively.

For a typical Albertan, this chill will lead to fewer jobs, diminished property values, and the risk that one of Canada’s economic powerhouses will slowly turn into a have-not province.

Premier Danielle Smith has stated that, while she is a federalist, she wants to respect the wishes of Albertans who demand a voice on the question of separatism. Few would disagree with the argument that Albertans have been taken for granted by central Canada. But many of those same people would stop short of seeing the creation of a landlocked country, ripe to be overtaken by the United States, as a viable solution.

The numbers supporting an end to this fruitless debate are already there. The Forever Canadian campaign accumulated 456,000 signatures (404,293 verified) from Albertans who, let’s be clear, do not want a referendum on separation; who, in fact, want this ridiculous circus to end right now. The separatists claim they have 301,620 signatures from people who want a referendum vote. But those signatures have not been verified, leaving one to wonder how they would stand up to scrutiny.

So, it is apparent that the will of Albertans is already on the record.

Now, practically speaking, it’s not easy to sue a provincial government. Canadian courts generally give governments broad protection when making political or policy decisions, even unpopular ones. The law states that citizens cannot sue the government over “core policy decisions,” as long as those decisions were made in good faith and are not irrational. That protection exists so governments can govern without facing lawsuits over every unpopular decision. But it is not absolute immunity from accountability.

And that is where this government may have a problem.

A government that knowingly fuels instability, ignores foreseeable economic harm and undermines investor confidence may eventually find it harder to argue that its actions were rational, responsible and undertaken in good faith. That becomes an even harder argument when the same government bypasses Indigenous consultation obligations and legitimizes unlawful conduct by extremist actors.

As Smith has demonstrated with her end-run referendum question (which she admitted was designed to bypass a court ruling requiring Indigenous consultation before any separation vote), this government is nothing if not adept at spotting and exploiting loopholes.

A constitutional law authority whom I consult with also sees such a lawsuit as a long shot. “The biggest challenge would be in establishing the interference—i.e., how does a referendum on the possibility of holding a referendum that may trigger negotiations on secession actually interfere with the protected rights (whether as articulated in the Alberta Bill of Rights or the Charter)?” he wrote to me.

Fair question. But courts also look at consequences. And the consequences of this government’s handling of separatism are already visible in business confidence and growing uncertainty about Alberta’s future.

Even so, a legal challenge might be worth a shot, if only to send a message to this hapless government. Albertans have been harmed and will continue to suffer as a result of the government’s incoherent handling of the separatist discussion. Is it negligence? Incompetence? Machiavellianism? Ideological blinkers? Pick your theory because they all have their adherents.

In a twist of irony, Smith’s ambivalence on the separatist question has failed to lock in the support of the separatists who helped her gain party leadership after ousting ex-premier Jason Kenney in 2022. After Smith announced her confusing referendum question, separatist leader Jeffrey Rath declared, “It’s time for Danielle Smith to go.”

So all this chaos, encouraged by a premier trying to hang on to her job, has been for naught. And Albertans are suffering the consequences. Let’s talk about asking the courts for a little remedy for this collective ordeal.

Doug Firby is an award-winning editorial writer with over four decades of experience working for newspapers, magazines and online publications in Ontario and western Canada. Previously, he served as Editorial Page Editor at the Calgary Herald.