[MBates]

Originally Posted by Muta

Uh, right from that article:

...James Muir, an associate professor with the department of history and faculty of law at the University of Alberta, cast doubt on Kenney’s promise.

“The referendum would have no legal effect and his reference to the Quebec referendum either suggests he doesn’t understand constitutional law or he’s using it to essentially lie to people,” said Muir, explaining the Supreme Court decision was about how a province can separate from Canada not about how it can amend the constitution.

So, about this big-time legal history professor declaring other people don't understand constitutional law or else are liars, I am wondering what his erudite interpretation of the actual text of the SCC decision would be.

I wonder for example did the SCC have anything to say about whether a province separating would legally be defined as an amendment of the constitution? The professor probably read all of the paragraphs except 84:

The secession of a province from Canada must be considered, in legal terms, to require an amendment to the Constitution, which perforce requires negotiation. The amendments necessary to achieve a secession could be radical and extensive. Some commentators have suggested that secession could be a change of such a magnitude that it could not be considered to be merely an amendment to the Constitution. We are not persuaded by this contention. It is of course true that the Constitution is silent as to the ability of a province to secede from Confederation but, although the Constitution neither expressly authorizes nor prohibits secession, an act of secession would purport to alter the governance of Canadian territory in a manner which undoubtedly is inconsistent with our current constitutional arrangements. The fact that those changes would be profound, or that they would purport to have a significance with respect to international law, does not negate their nature as amendments to the Constitution of Canada.

He's probably still totally right about the fact that a referendum to seek an amendment to the constitution would have no legal effect though...let's see, did the SCC say anything on that topic? Oops, the professor missed another paragraph it seems (Para 88):

...The corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table. The clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles already discussed.

I am not sure how one could craft a more profoundly wrong attack on a politician's campaign promise than this professor did.

Holding a referendum to obtain a clear mandate of the political will of a province to renegotiate the constitution is literally confirmed by the SCC in the Quebec secession reference as a legally binding method of having one province force the feds and the other provinces to a good faith negotiation on the point.