What did Justice Feasby decide?
Summary
The case of Chief Electoral Officer of Alberta v. Mitch Sylvestre and Minister of Justice of Alberta involved a reference to the court on whether Mitch Sylvestre’s application for a petition on Alberta separation contravened rights under the Charter of Rights and Freedoms and constitutionally protected Indigenous rights.
Justice Feasby determined that the proposed petition would contravene both. Three days after that ruling, the Chief Electoral Officer rejected this petition application.
However, this was only the first stage of litigation respecting the separatists’ petitions. The litigation continued in the case of Athabasca Chipewyan First Nation v. Chief Electoral Officer and His Majesty the King in Right of Alberta.
Background
On July 4, 2025, immediately after new provincial rules came into effect to make it easier to have a successful citizens’ petition, Mitch Sylvestre applied to Alberta’s Chief Electoral Officer under the Citizen Initiative Act for approval of a petition asking: Do you agree that Alberta shall become a sovereign country and cease to be a province in Canada?
At that time, the Citizen Initiative Act provided that:
An initiative petition proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982.
Sections 1 to 34 of the Constitution Act, 1982 comprise the Charter of Rights and Freedoms. Sections 34 and 34.1 provide that existing aboriginal and treaty rights of the aboriginal peoples of Canada are recognized and affirmed. (The Constitution uses the term “aboriginal” rather than “Indigenous”.)
The question therefore arose whether the proposal for Alberta to separate and become a sovereign country contravened Charter rights or constitutionally protected Indigenous rights. The new rules under the Citizen Initiative Act provided a mechanism for answering this question. They stated that the Chief Electoral Officer was empowered to refer to the Court of King’s Bench of Alberta the issue of whether the proposal in a petition application contravened constitutionally protected rights. On July 28, 2025, the Chief Electoral Officer exercised this power and referred this question to the court. Justice Feasby was appointed to hear the case.
As a first step in this process, the proponent sought an order to strike the reference, calling it an abuse of process and an affront to democracy. Justice Feasby dismissed this application.
As the Alberta government supported the proponent’s argument that the petition was not unconstitutional and as the Chief Electoral Officer took no position on the issue, Justice Feasby appointed independent counsel, known as amici curiae, to present the opposing argument and to present their own independent conclusion on the question.
He also established a process for people to apply as intervenors in the case, which would give them status to present arguments. Pursuant to that process, he later granted intervenor status to the Confederation of Treaty 6 First Nations, Treaty 8 First Nations of Alberta, Athabasca Chipewyan First Nation, Samson First Nation, Sturgeon Lake Cree First Nation, and Mikisew Cree First Nation.
The case continued with submissions being made over the fall of 2025.
On December 4, 2025, the Alberta government introduced Bill 14. Among other things, the bill provided for the repeal of the requirement that petition proposals must not contravene constitutionally protected rights. It also provided for the repeal of the right of the Chief Electoral Officer to refer this question to the court and said any referral of the question of constitutionality already before the court was to be discontinued.
The next day, Justice Feasby issued his decision. He noted that although Bill 14 proposed the discontinuance of these proceedings, it had not yet been passed or proclaimed into law and therefore the case remained alive. He found that “changing legislation to circumvent a valid legal process commenced by the independent officer of the Legislative Assembly responsible for administering democratic processes is the antithesis of the stable, predictable, and ordered society that the rule of law contemplates, and democracy demands.” He concluded that attempting to end this litigation was contrary to the rule of law and disrespected the administration of justice.
On the merits of the case, Justice Feasby found that the proposal in the petition contravened the Charter because separation would require the replacement of the Canadian constitution without any guarantee that existing Charter rights would be replaced in an Alberta constitution. He found that Alberta independence would contravene the Charter-guaranteed right to vote, mobility rights, and minority language rights.
Justice Feasby also found that the petition’s proposal contravened constitutionally protected aboriginal and treaty rights in two ways. Firstly, because independence would involve removing Canada and substituting an independent Alberta as the entity responsible for fulfilling treaty rights. And secondly because independence would transform provincial and territorial boundaries into international borders, impairing treaty rights to move freely through the lands for the purpose of hunting and fishing.
Following receipt of this judgment, the Chief Electoral Officer rejected the Sylvestre petition on December 8, 2025.
On December 11, 2025, Bill 14 came into force. The following day, Mitch Sylvestre applied for approval of a petition on a substantially similar question, purportedly under the new rules established by Bill 14. The Chief Electoral Officer approved that petition which then became subject to another court challenge heard by Justice Leonard. (See our post: What did Justice Leonard decide?)