FIRST READING: The extremely Canadian pastime of holding an unsuccessful secession referendum

First Reading is a Canadian politics newsletter curated by the National Post’s own Tristin Hopper. To get an early version sent directly to your inbox, sign up here.

On Monday, Albertans participated in something that has become a quintessentially Canadian political exercise: an unsuccessful secession vote.

The ballot question was only on whether Alberta should hold a second “binding provincial referendum” on independence. Nevertheless, it failed overwhelmingly, with approximately three-quarters of voters rejecting the referendum in favour of an option to “remain a province of Canada.”

Most countries do not allow secession referenda. And in the ones that do, such votes are generally only held when a winning outcome is not in doubt.

But of the handful of historical instances where a subnational jurisdiction voted on independence only to come up short, almost all of them have happened in Canada.

With Monday’s vote, there have now been three of them. The other two, of course, were Quebec’s unsuccessful independence referenda in 1980 and 1995.

It could also be argued that Newfoundland provided a fourth example.

In 1948, the British government asked voters in the semi-independent Dominion of Newfoundland to choose between self-government or absorption into Canada. By a margin of 52.3 per cent, voters chose Confederation over independence.

Aside from those, the world’s other famous example of a sovereigntist vote failing to get a majority at the polls belongs to Scotland.

The 2014 Scottish Independence Referendum ended up seeing independence trounced by a margin of nine points (55.7 per cent “no” vs 44.7 per cent “yes”).

And even that result was closer than two of Canada’s secession referenda.

The 1980 Quebec referendum lost by 19 points (59.5 per cent “no” to 40.4 per cent “yes”). The recent vote in Alberta saw the independence option lose by about 50 points (75 per cent “no” to 25 per cent “yes”).

As to why this keeps happening in Canada and basically nowhere else, there are two reasons.

First is the Canadian willingness to allow these votes to happen at all.

In fact, Canada remains one of the world’s only countries that has a defined legal process on national dissolution. The 2000 Clarity Act allows pieces of Canada to leave provided there is a “clear will to secede.”

Almost everywhere else, national constitutions either forbid dissolution, or they allow it only with extremely rigorous conditions.

As such, the more typical outcome of secession votes is that they receive majority support, only to be declared invalid by the national government.

The Caribbean island of Nevis has voted twice to split off from the micronation of St. Kitts and Nevis, in 1977 and 1998. In the former case, the vote was declared invalid, in the latter a result of 62 per cent for secession was also declared invalid because it didn’t meet a constitutionally mandated two-thirds majority.

In Spain, the autonomous region of Catalan voted overwhelmingly for secession in 2017, with 92 per cent of voters supporting Catalan’s transition to an independent republic. However, Madrid ignored the vote, deeming it a violation of Spain’s constitutional status as an “indivisible” country.

The United States has hosted three successful plebiscites for secession; all of them held in 1861. Texas, Virginia and Tennessee all saw large margins of voters endorsing secession from the United States, only for the outcome to be invalidated by the subsequent American Civil War.

The second and arguably more important reason that Canada is the world epicentre of unsuccessful secession votes is that Canadian sovereigntist movements are uniquely comfortable with making independence a ballot question even when the odds are heavily against them.

In the case of Alberta, not a single poll ever showed Alberta independence getting anywhere close to majority support. The best it ever polled was a May Angus Reid Institute survey finding 35 per cent willing to proceed to a binding independence referendum, with 60 per cent backing the “remain in Canada” option.

Similarly in Quebec, the just-elected Parti Quebecois government of Paul St-Pierre Plamondon has maintained its commitment to eventually hold a third Quebec secession referendum, even as polls overwhelmingly show voter distaste at the idea.

Almost everywhere else, when voters are summoned to the polls to decide on an issue of national independence, the outcome is never usually in doubt.

Canada’s nearest European neighbour, Iceland, became independent from Denmark in 1918 after an independence referendum that won by 92.5 per cent.

Another Nordic nation, Norway, voted 99.5 per cent to secede from Sweden in 1905.

Amid the early 1990s breakup of the Soviet Union, many former Soviet republics similarly backed independence by overwhelming margins. Ukraine saw voters endorse independence by 92.3 per cent in 1991. The year before, Slovenian voters endorsed independence by 95.7 per cent.

Aside from Scotland, the closest European analogue to a Canadian-style secession vote is probably Montenegro.

In 2006, Montenegrins were asked whether to declare independence or remain in a political union with Serbia.

The vote was close but – unlike all of Canada’s secession referenda – it was ultimately decided for independence. Montenegrins voted for independence by a margin of 55.5 per cent.

This week, B.C. Judge Brenda Brown ruled that a trio of migrant workers who tortured an elderly couple to death in their Abbotsford home can’t be given a 25-year sentence, as this would constitute “cruel and unusual punishment.”

Although the three men (one of whom had only been in Canada for a month before the killings) were convicted of first-degree murder, Brown ruled that they should be allowed a chance at parole in just 15 years. The men will be sentenced next February.

Earlier this month, this newsletter covered how some of Canada’s wackiest court decisions have been premised on the Charter protection of “life, liberty and security of the person.” This has been used to justify protections on everything from tent encampments and bike lanes to the taking of illicit drugs in children’s playgrounds.

Well, Canadian courts have also been taking some wild liberties with the Charter right “not to be subjected to any cruel and unusual treatment or punishment.”

Below, a few other baffling decisions brought to us by the Charter protection on “cruel and unusual” punishment:

It’s cruel and unusual to jail mass killers for life

In 2015, the House of Commons passed a provision requiring mass murderers to serve their sentences consecutively, instead of concurrently. Previously, no matter how many people a murderer had killed, they got the same 25 years in prison for first-degree murder before being eligible for parole. The change in the law meant 25 years for each victim. The Supreme Court ruled in 2022 that this was cruel and unusual, with the test case being an appeal filed by Alexandre Bissonnette, who murdered six men at a Quebec City mosque. Bissonnette, once fated to die in jail, is now cleared to one day seek freedom.

It’s cruel and unusual to put child sex criminals in jail

Under the Criminal Code, anyone convicted of possessing or accessing child pornography faced a minimum sentence of at least a year in jail. The same is true for a conviction of child luring. That is, until two separate Supreme Court decisions decided that both punishments were “cruel and unusual.”

What’s more, the justices didn’t decide this based on the merits of the case before them. They did so by concocting an elaborate hypothetical scenario in which it was conceivably unjust to impose a mandatory minimum sentence. In the child pornography decision, the justices were dealing with a man caught possessing several hundred images and videos of children being sexually abused. But they imagined that, instead, he had actually been an 18-year-old sent a “sext” from a 17-year-old friend. In the latter case (which, again, didn’t happen), they ruled it would be “cruel and unusual” to impose a one-year jail term.

It’s cruel and unusual to send a child rapist to jail

This decision is from June, and it concerns a man in his 20s who repeatedly sexually assaulted his school-aged biological sister over a period of four years. It’s a crime for which the minimum jail sentence is five years, but Ontario’s Superior Court of Justice ruled that this was “cruel and unusual” since the offender is developmentally disabled. He was instead given two years of house arrest – although at a different house from the one where he repeatedly victimized his sister.

First Reading is a Canadian politics newsletter curated by the National Post’s own Tristin Hopper. To get an early version sent directly to your inbox, sign up here.