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Affidavit #4

AFFIDAVIT

(Structural Incompatibility of “Direct Democracy” with the Union of 1867)

I, Kathleen Pageot, of the City of Montreal, in the Province of Quebec, MAKE OATH AND SAY:

I.  The Proposed Referendum Question and Its Characterization
1. I am informed that the Alberta Prosperity Project (“APP”) has advanced the following proposed referendum question:

“Do you agree that the Province of Alberta should cease to be part of Canada to become an independent state?”  EXHIBIT “A”

2. APP has characterized this initiative as a “landmark victory for direct democracy,” asserting that it empowers electors to determine Alberta’s constitutional future.  EXHIBIT “B”

3. The expression “direct democracy,” in this context, conveys that a majority vote of electors would constitute a determinative constitutional act.

4. I am informed that on or about 11 December 2025, Bill 14 received Royal Assent in the Legislature of Alberta. The Alberta Prosperity Project publicly characterized the passage of Bill 14 as follows:

   “In a landmark victory for direct democracy, Bill 14 has just passed the Alberta Legislature and received Royal Assent… This clears all hurdles for our citizen-led independence referendum…”

5. In the same communication, the Alberta Prosperity Project advanced the following proposed referendum question:

“Do you agree that the Province of Alberta should cease to be part of Canada to become an independent state?”

6. The APP’s description of Bill 14 as a “landmark victory for direct democracy,” coupled with the proposed question above, reflects an understanding that a direct vote of electors may determine the constitutional status of the Province.

7. In the Reference re Initiative and Referendum Act (Man.), the Judicial Committee of the Privy Council held that legislation purporting to substitute “a direct vote of the electors instead of the Legislative Assembly” was beyond provincial legislative authority.  The concern identified in that file was not the taking of a vote as such, but the displacement of the constituted Legislature as the body in which legislative authority is vested.

8. The structural issue raised by the APP’s framing of the proposed referendum is therefore whether the contemplated vote is presented and understood as consultative, or as determinative in substitution for the Legislature established under the Constitution of 1867.  It is that structural question which engages the principles addressed in this Affidavit.

9. The APP, at its web page entitled:  “Register your Intent to Submit “YES” – Supporting Alberta Independence,” states:

   WHAT’S THE PURPOSE OF THE REFERENDUM?
   The purpose of the referendum is for eligible Albertan voters to decide if the province of Alberta should secede from Canada and become a sovereign independent country.
    
   As Albertans, the power is in our hands to make this referendum a reality.  We must clearly indicate what the WILL OF THE PEOPLE of Alberta is so that no government, be they provincial, federal or international, can ignore it.

10. The above wording presents the referendum as a form of “direct democracy” through which the electorate is to “decide” the constitutional status of Alberta and through which the expressed “WILL OF THE PEOPLE” is such that “no government” can “ignore it”.

11. This framing treats the referendum as capable of producing a determinative constitutional mandate, which is the structural concern addressed below in this my Affidavit.

12. I have reviewed an official publication of Elections Canada entitled “Referendums in Canada:  A Comparative Overview” (Electoral Insight, January 2001), a true copy of which is attached as EXHIBIT “C” to this my Affidavit.  On page 1 of that publication, referendums are described as instruments of “direct democracy,” in the following terms:

    “While representative democracy limits the participation of electors to voting in elections, direct democracy allows elector participation in the formation of public policy by asking electors to vote on issues, rather than for a candidate.”

13. The above terminology reflects a civic or academic description of referendums as a form of voter participation.  However, such terminology does not alter the constitutional allocation of legislative authority under the Constitution of 1867, by which legislative authority is vested in constituted legislatures.

14. While the Elections Canada publication employs the expression “direct democracy” as a descriptive civic term for voter participation, the Alberta Prosperity Project employs the same terminology in a manner that presents a referendum as constitutionally determinative.  The distinction between descriptive civic language and structural constitutional authority is central to the concerns raised in this Affidavit.

15. The APP’s characterization of the proposed referendum as an exercise in “direct democracy,” together with its assertion that the expressed “WILL OF THE PEOPLE” cannot be ignored by any level of government, reflects an understanding of the referendum as producing a constitutionally determinative mandate.  It is that presupposition — not the mere holding of a consultative vote — that engages the structural concerns addressed in this Affidavit.

II.  Adoption of Clarity Act Language

16. The wording of the APP’s proposed referendum question tracks the material language found in the federal Clarity Act, which refers to a “clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state.”

17. The APP has therefore adopted, in substance, the terminology employed in the Clarity Act in framing its proposed referendum question.

18. This affidavit does not address the validity of the Clarity Act. The mention above is made solely to identify the source of the language incorporated into the APP’s proposed question.

III.  Direct Democracy Framing and Appellate Language

19. I am informed that the Alberta Prosperity Project’s website contains the following statements regarding the purpose of the proposed referendum:

“The purpose of the referendum is for eligible Albertan voters to decide if the province of Alberta should secede from Canada and become a sovereign independent country.
As Albertans, the power is in our hands to make this referendum a reality. We must clearly indicate what the WILL OF THE PEOPLE of Alberta is so that no government, be they provincial, federal or international, can ignore it.”

(Alberta Prosperity Project website, accessed 13 February 2026)

20. The wording above reflects an appeal to the will of the electorate as the determinant of constitutional status, characterizing the referendum as a vehicle of direct democracy in which the expressed will of the people is to be decisive and unassailable by governments at any level.

21. Such framing presupposes that a popular vote may produce a constitutionally binding expression of will respecting secession, a presupposition that is structurally incompatible with the legislative authority vested in the Legislature under the Constitution of 1867, a point addressed elsewhere in this my Affidavit.

22. Regardless of how the term “direct democracy” is used in civic literature, under the constitutional structure of the Union of 1867, legislative authority is vested in constituted legislatures and cannot be exercised by plebiscite.

23. A true copy of the relevant portion of the Alberta Prosperity Project webpage accessed 13 February 2026 is attached as EXHIBIT “A” to this my Affidavit.

IV.  Legislative Authority Under the Union of 1867

24. The British North America Act of 1867 (now called the Constitution Act, 1867) established a constitutional order — referred to here as the Union of 1867 — composed of defined legislative institutions and a structured division of powers.

25. Provincial legislative authority is vested in a Legislature composed of the Lieutenant-Governor and the Legislative Assembly.

26. The Lieutenant-Governor is a constituent element of the Legislature.

In the Manitoba Initiative and Referendum references (1916; 1919), the courts held ultra vires a statutory scheme that sought to make laws operative upon approval by popular vote because it:

1. “clearly seeks to dispense with the assent of the Lieutenant-Governor”
   (Reference re Initiative and Referendum Act (Man.), [1919] A.C. 935 (P.C.));

and

2. would render him “powerless to prevent [a proposal] becoming an actual law if approved by a majority of voters,” thereby excluding him as “an integral part of the Legislature.”
   (Reference re Initiative and Referendum Act (Man.), [1919] A.C. 935 (P.C.))

27. The Court further affirmed that the Lieutenant-Governor may assent only to a bill passed by the Legislative Assembly
    (Reference re Initiative and Referendum Act (Man.), [1919] A.C. 935 (P.C.));

28. In Bertrand v. Québec (Procureur général), 1995 CarswellQue 131 (C.S.), Lesage J.C.S. affirmed that “Un référendum, de sa nature, est consultatif” (citing Haig v. Canada), distinguishing a consultative vote from governmental action purporting to give such a vote determinative constitutional effect.

29. The Court further characterized governmental acts undertaken “en vue de la sécession” as a repudiation of the Constitution of Canada, observing that such a rupture would place constitutional protections at risk in the affected jurisdiction.

30. The significance of this distinction lies in the structural principle that, under the constitutional order established in 1867, a referendum may serve as consultation, but cannot itself displace or replace the constituted Legislature as the bearer of legislative authority.

31. These authorities confirm that legislative power cannot be exercised by plebiscite in substitution for the Legislature constituted under the Constitution of 1867.

V.  Permanency in the Working of the Union

32. At the Quebec Conference of October 1864, the delegates adopted Resolution No. 2, providing that:

    “In the Federation of the British North American Provinces, the system of Government best adapted under existing circumstances to protect the diversified interests of the several provinces, and secure efficiency, harmony, and permanency in the working of the Union, would be a General Government charged with matters of common interest…”

33. That Resolution was introduced into the legislative record in February 1865 when the Quebec Resolutions were presented by Étienne-Paschal Taché.

34. The London Resolutions of 1866 retained that constitutional design.

35. The Imperial Parliament then enacted that design in the Constitution of 1867, styled “An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith”.

36. The enacted statute established a complete constitutional order consisting of approximately 147 numbered provisions defining institutions, distributing legislative powers, and constituting a unified constitutional system.

37. The Union so enacted was deliberately framed to secure permanency in its operation.

VI.  Structural Incompatibility of a Determinative Referendum

38. A referendum purporting to determine that a province “should cease to be part of Canada” cannot operate as a legislative act within that constitutional structure.

39. Legislative authority under the Constitution of 1867 is vested in Legislatures composed of the Lieutenant-Governor and the Legislative Assembly, not in the electorate acting directly.

40. A referendum treated as determinative would therefore contradict the constitutional architecture of the Union of 1867 as affirmed in the Manitoba authorities.

VII.  Public Characterization of the Referendum as Constitutionally Determinative

41. On 26 January 2026, at a public town hall event in Calgary entitled “Stay Free Alberta,” lawyer Eva Chipiuk delivered remarks regarding the proposed Alberta independence referendum, later published on YouTube under the title “Eva Chipiuk – What Happens on Day 1 After a SUCCESSFUL Alberta Independence Referendum?” (27 January 2026).

42. In those remarks, the proposed referendum was characterized as an exercise of a “right to self-determination,” and as a “clear democratic mandate” that would constitutionally require public institutions and office holders to “act”.

43. The remarks further described a referendum as “one of the simplest and most direct expressions of the democratic will of the people,” asserting that once the people have “spoken clearly and lawfully,” institutions are “constitutionally required to listen” and “required to act.”

44. Such characterizations treat a referendum result not as merely consultative, but as constitutionally determinative and binding upon institutions of government.

45. The Constitution of 1867 contains no provision vesting in the electorate of a province a free-standing constitutional authority to effect constitutional change by plebiscite.  Legislative authority is vested in the defined constitutional organs of government, not in the electorate acting directly.

46. A referendum result treated as constitutionally binding would therefore amount to the substitution of plebiscitary authority for the Legislature constituted under the Union of 1867, contrary to the constitutional structure affirmed in the Manitoba Initiative and Referendum authorities.

47. On 27 January 2026, I viewed a video published on YouTube entitled “Eva Chipiuk – What Happens on Day 1 After a SUCCESSFUL Alberta Independence Referendum?” In that video, the statements quoted in paragraphs 41–44 above were made.  A true copy of screenshots of the YouTube page displaying the title, publication date, and URL, together with screenshots of the relevant portions of the video, is attached as Exhibit “D” to this my Affidavit.

VIII.  Express Clarification

48. Nothing herein should be construed as accepting that the Constitution of 1867 is silent as to the continued existence of the Union of 1867.

49. The constitutional structure adopted in 1867 — expressly framed to secure “permanency in the working of the Union” — establishes a complete system of legislative institutions and a defined division of powers.  It contains no mechanism by which the electorate of a province, acting by plebiscite, may effect the dissolution or fragmentation of that Union, whether directly or through any asserted federal or provincial authority.

SWORN (or AFFIRMED) before me
at the City of ____________,
in the Province of ____________,
this ___ day of ____________, 2026.

A Commissioner for Oaths / Notary Public

___________________________

___________________________
Kathleen Pageot
 

⬇ EXHIBIT “A” – APP referendum question page, accessed 13 February 2026. 

⬇ EXHIBIT “B” – APP “landmark victory” page, accessed 22 February 2026. 

⬇ EXHIBIT “C” – Elections Canada publication, accessed 22 February 2026

⬇ EXHIBIT “D” – Chipiuk YouTube screenshots, accessed 13 February 2026. 
xxxx xxxxxxx

That is fine — but you must ensure:

Title visible
URL visible
Publication date visible
Her face visible while speaking (authenticity)
The exact quoted language appears in the screenshots

 

About the Litigator

Kathleen Pageot is an independent constitutional researcher and litigant based in Canada. Her work is rooted in close reading: of statutes, debates, judgments, and the words by which constitutional meaning is made, stretched, or displaced.

Her research focuses on the original architecture of the Canadian Constitution, with particular attention to the nature of Confederation, the role of the Crown, and the lawful limits of judicial authority. She works primarily from primary sources — the 1864–1867 Confederation debates, early parliamentary records, foundational statutes, and historic judicial materials — reading them not as abstractions, but as texts written by real actors for concrete purposes.

Ms. Pageot approaches litigation as a disciplined inquiry rather than a performance. Her filings emphasize internal coherence, documentary proof, and constitutional continuity, and are prepared with close attention to jurisdiction, procedure, and the consequences that follow when words are untethered from their legal setting.

Alongside her constitutional work, she has maintained a lifelong engagement with language and form. Her earlier published poetry reflects an enduring interest in how meaning is shaped — and misshaped — by words, context, and silence. That sensibility now informs her legal writing, where clarity is treated not as ornament, but as obligation.

Who Dares Wins  is the public record of this work.

Clarity is not lost by looking closely — only by looking away.

Style of Cause

COURT FILE NO. __________

 

FEDERAL COURT

 

BETWEEN:

 

KATHLEEN PAGEOT
Applicant

 

– AND –

 

RESPONDENTS:

 

THE GOVERNOR IN COUNCIL

– AND –

THE ATTORNEY GENERAL OF CANADA

 

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APPLICATION FOR JUDICIAL REVIEW

OF THE PURPORTED STATUTORY AUTHORITY OF THE GOVERNOR IN COUNCIL

TO REFER QUESTIONS TO THE JUDGES OF THE SUPREME COURT OF CANADA
AND FOR CERTIORARI, DECLARATORY AND OTHER RELIEF

(pursuant to ss. 18 and 18.1 of the Federal Courts Act)

---

 

Footnote

• Justice Estey, writing for a unanimous Court in Attorney General of Canada v. Inuit Tapirisat of Canada et al., 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735, held that where the Governor in Council exercises powers conferred upon it by Act of Parliament, it acts pursuant to a statutory mandate whose exercise is subject to judicial review within the limits prescribed by the Federal Court Act. The judgment repeatedly emphasizes that the Governor in Council must act “within the boundary of the parliamentary grant” and “in accordance with the terms of the parliamentary mandate.”
   
  The present Application accepts that proposition, but raises an anterior constitutional question. Since 1875, Parliament has, from time to time, enacted and amended statutory provisions purporting to authorize the Governor in Council to refer questions to the judges of the Supreme Court of Canada for advisory opinions. The Applicant alleges that Parliament lacked constitutional authority to confer that statutory power upon the judges of the Supreme Court of Canada, a court established pursuant to section 101 of the Constitution of 1867. If that allegation is correct, the purported statutory authority exercised by the Governor in Council, the Orders in Council issued thereunder, the advisory proceedings thereby convened, and the resulting advisory opinions are each alleged to be without constitutional foundation.