Danielle Smith’s Referendum Distraction

Alberta Premier Danielle Smith seems to believe referendums are the cure for every political headache, especially the ones she caused herself.

First, she made it easier for separatists to force a vote on breaking up Canada after spending months playing footsie with them. Now she’s holding a referendum asking Albertans whether the province should “take control” of immigration – even though she recently asked Ottawa to increase Alberta’s immigration allocation. And because apparently one scapegoat isn’t enough, that same referendum also aims at the courts.

Among the questions Albertans may soon be asked is this constitutional brain-twister: “Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to have provincial governments, and not the federal government, select the justices appointed to provincial King’s Bench and Appeal courts?”

Before we go any further, let’s clear up a small but important detail, the kind normally covered in the first week of constitutional law. Danielle Smith does not need a referendum to talk to other provinces about amending the Constitution. Premiers can already do that.

The referendum adds absolutely nothing to that process. Which is precisely the point.

This isn’t about constitutional reform. It’s about politics. More specifically, it’s part of a broader and increasingly brazen conservative effort to either control the courts or, failing that, convince the public not to trust them.

Canadian courts play a vital role in our constitutional democracy, which is precisely why politicians sometimes find them so irritating. They check government power. They ensure laws comply with the Constitution. They protect civil rights and fundamental freedoms.

That’s their job. But it means governments cannot always do whatever they want, even when something is popular, politically useful, or makes for a great fundraising email.

Which is why we keep seeing variations of the same playbook.

Ontario Premier Doug Ford openly talked about appointing “like-minded” judges. He reshaped Ontario’s judicial appointment process in ways critics say tilted the bench toward his preferred candidates – prosecutors and those with law-enforcement backgrounds. Federal Conservative leader Pierre Poilievre has promised to appoint “tough-on-crime” judges and has mused about using the notwithstanding clause to override court rulings.

Smith has been even more candid. “An unelected judge is not synonymous with democracy,” she said. Later adding: “I wish I could direct the judges, honestly… The problem we have is [the province] only choose our judges at the lower court level.”

That rhetoric prompted the chief justices of Alberta’s three courts to take the extraordinary step of issuing a joint public statement reminding the government that “a properly functioning democracy requires three separate branches of government that exercise their power and authority independently according to the Constitution.”

Judges rarely wade into politics. When they do, it is usually because someone has driven straight through the constitutional guardrails.

But Smith didn’t stop there. She also threatened to withhold funding from the courts, warning that “Alberta’s government will not agree to provide the necessary funding to support any new judicial positions in the province until such engagement and collaboration are provided.”  In other words: nice justice system you have there. It would be a shame if something happened to it.

Smith claims that her referendum is necessary because the judicial appointment process is riddled with partisan bias. When announcing the proposal, she said, “Especially since 80 per cent of the judges or so have been demonstrated to have Liberal party donations, I don’t know why anyone would think that the process we have right now is free of politics.”

Let’s unpack that.

Judges are prohibited from donating to political parties or engaging in political activity after their appointment. Even looking at pre-appointment activities, the numbers Smith cites are not just wildly misleading; they are straight-up nonsense.

An eight-month investigation by the National Post and the Investigative Journalism Foundation examined judicial and tribunal appointments since 2016 and found that 76.3 per cent of appointees who had previously made political donations had given to the Liberal Party of Canada.

But here is the crucial detail Smith skipped: only 18.3 per cent of appointees had ever made any political donation. So, the supposed “80 per cent” of judges having previously donated to Liberals is closer to 20 per cent.

This is not complicated math.

Context here matters even more. When journalist Glen McGregor ran the same analysis during the Harper government, he found Conservative contributors were about three times as likely to be appointed as Liberal donors. The pattern mirrored whichever party was in power.

Meanwhile, if Smith wants to talk about political donations by judges, she might want to glance a little closer to home. Alberta’s chief justice is currently investigating two judges after evidence surfaced suggesting they donated to Smith’s own United Conservative Party after being appointed to the provincial court bench.

A political judiciary is not a defining feature of Canada’s history. Judges appointed by one government are routinely elevated to higher courts by another. Partisan confirmation hearings and judicial elections are not part of our tradition. And past partisanship doesn’t dictate results – in Canada, courts regularly strike down laws passed by the very politicians who appointed them (just ask Stephen Harper what happened to many of his tough-on-crime reforms).

In Canada, judges are expected to follow the law, not a party line. This stands in contrast to the United States, where ideological loyalty increasingly seems to matter more than legal principle. The results are easy to see: confirmation battles, partisan courts, and a judiciary whose legitimacy is openly questioned by half the country.

It is not exactly a model worth importing.

Yet Smith and her conservative counterparts seem determined to head in precisely that direction. They talk openly about appointing ideological allies. They threaten to override court rulings. They reshape appointment processes. And they publicly question the legitimacy of judges who disagree with them.

They also have a remarkable ability to forget their own history. Remember when Peter MacKay appointed nine judges to the Nova Scotia Supreme Court, six of whom had personal or political connections to him, including a friend who served as best man at his wedding?

Political connections in judicial appointments are not new. But openly trying to politicize and dominate the courts is.

Smith does not need a referendum to discuss judicial appointments with other premiers.

But this referendum is not about constitutional reform. It is about politics. It is about blaming immigrants, blaming Ottawa, blaming judges, blaming anyone other than the government itself. And in the process, it risks eroding public confidence in the institutions that keep governments in check.

That may be good short-term politics. But it is terrible for democracy.