What did Justice Leonard Decide?

Summary

• In an application brought by a group of First Nations, Justice Leonard quashed the decision of the Chief Electoral Officer which had approved a petition for separation of Alberta from Canada.

• The primary ground for her decision related to timing: the application had already been rejected under the existing legislation and could not be revived under the amended legislation, which was designed to remove obstacles in the way of the separatist petition.

• Justice Leonard also found that the government failed to exercise its duty to consult with Indigenous peoples before approving this petition and that the proposal in the petition was unconstitutional.

• These latter findings blocked the government from placing a direct question favouring separation on the October 19 referendum ballot and resulted in the double-barreled question eventually adopted by the government.

Background

On December 5, 2025, Justice Feasby ruled that the separatist proposal in the first Mitch Sylvestre petition contravened rights under the Charter of Rights and Freedoms and constitutionally protected Indigenous rights. (See our post: What did Justice Feasby Decide?)

In light of that decision, the Chief Electoral Officer rejected the petition. Several days later, Bill 14 came into force, removing the prohibition in the Citizen Initiative Act against petitions that contravene constitutional rights. The following day, Mitch Sylvestre applied again for approval for a petition, this time with the question: “Do you agree that the Province of Alberta should cease to be part of Canada to become an independent state?”

On December 22, 2025, the Chief Electoral Officer approved this petition. That decision was challenged in court by the Athabasca Chipewyan First Nation, the Piikani Nation, Siksika Nation and Blood Tribe. The matter was heard by Justice Leonard of the Court of King’s Bench of Alberta.

On April 10, 2026, Justice Leonard granted a stay of the decision of the Chief Electoral Officer, pending her decision on the merits. The signature gathering process continued, but validation and counting of signatures was put on hold. On May 13, 2026, Justice Leonard issued her decision on the merits and quashed the decision of the Chief Electoral Officer, effectively setting aside the petition.

This decision has received a lot of publicity relating to the duty of the government to consult with Indigenous peoples before embarking on conduct that may impact their treaty rights. (See our post: What does “Duty to Consult” Indigenous peoples mean for the separatist campaign?) However, that was not the primary basis on which the case was decided. The primary basis related to timing.

The Chief Electoral Officer rejected Sylvestre’s initial petition on December 8, 2025. Bill 14 came into force on December 11, 2025. It included certain provisions relating to the transition from the legislation as it had been and the legislation as amended. They provided that:

An application for the issuance of an initiative petition made before [December 11, 2025] for which an initiative petition has not been issued under section 3(3)(a) as of [December 11, 2025] is deemed never to have been made.

Section 3(3)(a) requires the Chief Electoral Officer to issue a petition when the statutory requirements for that petition have been met.

The transitional provisions went on to say:

If an application is deemed never to have been made under subsection (1), the applicant may submit a notice of intent with the same subject-matter as the application deemed never to have been made, and if the applicant does so within 30 days of the coming into force of this section, the application fee required under section 2(2)(h) is waived in respect of the new application submitted in respect of the notice of intent.

The waiver of the fee was important. On December 17, 2025, the government increased the fee from $500 to $25,000, raising a financial barrier against later petition applications.

The transitional provisions were advantageous to the separatist petitioners and Sylvestre followed the route set out in those provisions. The day after Bill 14 came into force, he applied for a new petition, with slightly different wording from his initial petition. The application fee was waived, the Chief Electoral Officer approved the petition on December 22, 2025, and the petition was issued on January 2, 2026.

The Province of Alberta, opposing the application of the First Nations to quash the approval of the petition, argued that the initial Sylvestre application had been made before December 11, 2025, and a petition had not been issued before December 11, 2025, therefore it was deemed never to have been made. Under the transitional provisions, Sylvestre was at liberty to submit a new application without being required to pay a new fee.

To be sure, the first Sylvestre application was made before December 11, 2025, but was it an application for which a petition had not been issued by that date? Justice Leonard found that it was not. She read this provision to apply to applications for petitions that were pending as of December 11, 2025, not applications that had already been rejected by that date. “Simply put, the First Proposal was not pending when the amendments came into force. It had been rejected and had come to an end.” She went on to find “it follows that because the First Proposal was rejected, it cannot be resubmitted.”

Justice Leonard found there was a further ground for overturning the decision of the Chief Electoral Officer to approve the second application. She held that the Crown (in this case the Alberta government) had a duty to consult with Indigenous persons before approving an application for a petition for Alberta to leave Canada and form an independent country because such a petition would set in place a process that could impair treaty rights, protected by s. 35 of the Constitution Act.

Justice Leonard also found a third ground for overturning the decision on the basis that the Chief Electoral Officer is required to act in accordance with the Constitution. At the time the second petition was approved, the Chief Electoral Officer was aware of the finding by Justice Feasby that the proposal in the petition would contravene both Charter and constitutionally protected Indigenous rights. His decision to approve the second petition was therefore unreasonable.

While the government of Alberta has an independent power to call a referendum on constitutional issues, these additional grounds in the decision of Justice Leonard presumably apply not only to the Chief Electoral Officer but also to the government, which is bound to comply with the Constitution. These findings effectively blocked the government from adding a question directly proposing separation on the October 19 referendum ballot. This led to the double-barreled question that has been placed on the ballot, which includes the commencement of consultation with Indigenous persons as a prequel to a later referendum on separation.