A Question Albertans May Not Have Seen Coming
When Albertans head to the polls this October for Premier Danielle Smith’s wide-ranging referendum, they will confront no fewer than nine questions — some familiar, some not. Immigration policy and the spectre of separation have dominated headlines, but one question has received comparatively little attention despite its potentially far-reaching constitutional consequences: who should appoint the judges sitting on Alberta’s superior courts?
The referendum will ask Albertans whether their province should work with other willing provinces to transfer the power of appointing judges to provincial King’s Bench and Court of Appeal positions from the federal government to provincial governments. It is a question that cuts to the heart of how judicial independence, democratic accountability, and federalism intersect in Canada — and it has drawn sharp responses from the legal community.
Smith’s Case: Values, Politics, and Provincial Voice
Premier Smith has made her position clear and repeated it often. In a January 2026 open letter to Prime Minister Mark Carney, she argued that the current federal appointment process fails to reflect Alberta’s values or what she describes as the province’s distinct legal traditions. Her proposed remedy was concrete: a new advisory committee with equal federal and provincial representation, whose recommendations would require joint ministerial approval before any appointment could proceed.
Smith also cited data she says shows that approximately 80 per cent of judges who made political donations gave to the Liberal Party, arguing this demonstrates the process is far from politically neutral. To reinforce her demands, she backed them with a financial threat — withholding provincial funding for any new positions on Alberta’s Court of King’s Bench — and pointed to existing vacancies on the court, as well as the approaching retirement of a Supreme Court of Canada justice from Alberta.
Alberta Justice Minister Mickey Amery framed the issue in terms of provincial voice. “Provinces lack a strong, meaningful voice in the appointment of superior court judges,” he wrote in a public statement, presenting the referendum as an opportunity for Albertans to weigh in on a structural imbalance they have long endured.
What Legal Experts and the Bar Actually Say
The legal community has not been persuaded. Former judges and constitutional scholars have pushed back firmly, questioning both the factual basis and the implications of Smith’s framing. A former Calgary judge took particular issue with the notion of Alberta’s distinct legal traditions, pointing out that provinces and territories across Canada operate within a broadly shared legal framework — one that has been deliberately harmonized over more than a century to facilitate the free movement of goods and people across the country.
Legal scholars have drawn a clear distinction between Alberta’s grievances and Quebec’s constitutionally entrenched civil law tradition, which genuinely represents a separate legal system rooted in a different historical and cultural inheritance. Alberta’s claim, they argue, rests less on a fundamentally distinct legal order and more on concerns about ideological distance from federal governments and a desire for greater democratic accountability over the courts. These are legitimate political concerns — but they are not the same thing.
The Canadian Bar Association, which represents 40,000 lawyers, judges, and legal professionals across the country, expressed concern that Smith’s proposal compromises judicial independence and risks casting doubt on the integrity of sitting judges. Groups representing lawyers and other legal professionals echoed that concern, warning that entangling provincial governments more directly in the selection of judges who must rule on provincial government decisions creates an obvious structural conflict.
One constitutional expert offered a nuanced take. Criticism of courts and judges is not only legitimate but sometimes necessary in a democracy, he acknowledged — if the judiciary overreaches, that too poses a risk to democratic governance. But there is a line, he cautioned. A respected, non-partisan judiciary whose decisions are consistently followed remains an essential pillar of the rule of law, and politicians must take care not to erode that foundation in the name of accountability.
A Long-Standing Federal Grievance
Provincial frustration with Ottawa’s control over superior court appointments is not new. The issue surfaced prominently during the Meech Lake accord negotiations in the late 1980s, when formal provincial consultation on judicial appointments was among the proposals tabled — and ultimately lost when the accord failed to be ratified. That history matters. It situates Smith’s referendum question within a decades-long tension between provincial governments seeking meaningful input into institutions that operate on their territory and a federal appointment power that the Constitution assigns squarely to Ottawa.
The Constitution Act, 1867 grants the federal government authority to appoint judges of the superior, district, and county courts in each province. Changing that arrangement in any meaningful way would require navigating the constitutional amendment formula — a formidable undertaking that goes well beyond what a provincial referendum can accomplish on its own. A successful vote in October would give Smith a political mandate to press the issue with other provinces and with the federal government, but it would not, by itself, alter a single appointment.
What the Referendum Can and Cannot Do
This distinction matters enormously, and it is one that public debate has not always made plain. Alberta’s referendum is a consultative exercise. It can signal provincial opinion, strengthen a premier’s negotiating hand, and potentially attract like-minded provinces into a coalition pressing for reform. It cannot unilaterally restructure the federal appointment process.
The question of whether provincial governments should have a more formal role in selecting the judges who hear cases in their courts is, at its core, a legitimate constitutional debate. Provincial governments do have interests in the composition of courts that adjudicate disputes arising under provincial law, regulate provincial institutions, and shape the legal environment in which provincial policy operates. Acknowledging those interests does not require accepting every element of Smith’s framing.
What the referendum will ultimately test is how many Albertans share their premier’s conviction that the current system is broken — and how many are persuaded that the cure she proposes would preserve, rather than compromise, the independence of the courts they depend on.
