Proposed Referendum Question on Alberta Independence Found Unlawful in Chief Electoral Officer of Alberta v Sylvestre

It looks increasingly likely that Albertans will be voting on whether to separate from Canada this year. This vote would not only pose an existential challenge to the entire country, but has also been found to contravene certain constitutional rights by Justice Colin Feasby (Alberta Court of King’s Bench) in Chief Electoral Officer of Alberta v Sylvestre.[1] The effect of this ruling has been limited, however, by Alberta’s Justice Statutes Amendment Act, 2025 (“Bill 14”),[2] which removes the prohibition of citizen-initiated referendum proposals that contravene sections 1 to 35.1 of the Constitution Act, 1982.[3] 

Background

In 2021, the Government of Alberta enacted the Citizen Initiative Act (“CIA”), which empowers Alberta citizens to initiate a constitutional referendum if they gather a sufficient number of signatures within a legally defined time period.[4] In 2025, the government significantly lowered the threshold to trigger such a vote, reducing the required signatures from around 600,000 to 177,000 citizens.[5] The government also widened the time period for collection of signatures from 90 days to 120, further reducing the chances of failed petitions.[6]

Following this, in July 2025, the Alberta Prosperity Project and its Chief Executive Officer, Mitch Sylvestre, proposed to Elections Alberta that the province hold a constitutional referendum posing the following question: “Do you agree that the Province of Alberta shall become a sovereign country and cease to be a province in Canada?”[7] That same month, the Chief Electoral Officer of Alberta (“CEO”) referred the Sylvestre question to the Alberta Court of King’s Bench to determine whether it was a permissible referendum question under section 2(4) of the CIA.[8] 

At the time of the referral, section 2(4) of the CIA specified that a referendum proposal could not “contravene” the first 35 sections of the Constitution Act, 1982,[9] while section 2.1(1) of the CIA allowed the CEO to refer a referendum proposal to the courts for review of compliance with section 2(4).

Neither of these provisions remain in force, however. On December 18, 2025, the Alberta Minister of Justice tabled Bill 14 to repeal sections 2(4) and 2.1(1) of the CIA, thereby removing a key legal obstacle to a citizen-initiated referendum on Alberta independence. Nonetheless, the next morning, Feasby J of the Court of King’s Bench delivered his judgment to the parties, finding that the referendum question did indeed contravene constitutional rights provisions in the 1982 Act.

The Sylvestre Decision

At the outset of the decision, Feasby J made clear that the question in this case was “not whether holding a referendum on Alberta independence is constitutional.”[10] Thus, “this case does not conclude that the constitution prohibits anything.”[11] In fact, the Supreme Court in Reference re Secession of Quebec confirmed that separation referendums could be lawfully and legitimately held by Canadian provinces.[12] The question before the Court in Sylvestre was therefore not about the constitutionality of holding a secession referendum (which isn’t in doubt), but about whether a citizen-initiated secession referendum is compliant with Alberta law. More specifically, the question was whether Mr. Sylvestre’s referendum proposal was impermissible under the CIA because it “contravenes” the rights guaranteed by sections 1 to 35.1 of the Constitution Act, 1982, which include the rights contained in the Canadian Charter of Rights and Freedoms (sections 1 to 34) and Aboriginal and Treaty rights (section 35).[13] In other words, does Alberta independence contravene Canadian constitutional rights?[14] Justice Feasby concluded that it does.

Before getting to this question, Justice Feasby addressed the familiar criticism of judicial activism, stating that reviewing the referendum question was not anti-democratic. Mr. Sylvestre took issue with the referendum question being reviewed by the Court, arguing that it “suppress[ed] democratic dialogue” and that the CIA was not intended to “give a Justice a platform to express their personal views on the independence of Alberta.”[15] Justice Feasby explained that the Government of Alberta specifically empowered the CEO to refer referendum questions to the Court through section 2.1(1) of the CIA, in turn enabling the Court “to play a role in the screening of initiative petition proposals for conformity with existing rights of Albertans” that is in line with courts’ role as independent arbiters of the law.[16] That answer, however, no longer applies — Bill 14 has since removed the power granted to the CEO (and the Court, by extension) under the CIA.

As noted above, the substantive question at issue was whether the referendum proposal contravenes sections 1 to 34 (the Canadian Charter of Rights and Freedoms) or 35 (Aboriginal and Treaty rights) of the Constitution Act, 1982.[17] To answer this question, Feasby J first had to engage in statutory interpretation to determine “the meaning of the CIA and what it requires.”[18] Feasby J concluded that the purpose of section 2(4) of the CIA is “best served” by understanding it “as a screen that catches prima facie limitations of rights.”[19] He also found that section 2(4) of the CIA “is not an obstacle to a citizen-initiated referendum that seeks to change the constitutional structure without affecting constitutional rights.”[20] The referendum question before the Court, however, did not clear that bar.

Justice Feasby found that “[t]he fact that an independent Alberta would have a new and different constitutional order necessarily means that Alberta independence contravenes Constitution Act, 1982, ss 1-35.1.”[21] Thus, Mr. Sylvestre’s proposed referendum question contravenes Canadian constitutional rights because a new constitutional order is inherently in contravention of the old one insofar as the legal protections offered by the old order would cease to apply, by definition.[22]

Even assuming a sovereign Alberta would offer equivalent rights protections to Canada, Feasby J identified three key Charter contraventions arising from independence.[23] 

First, the democratic rights of voting and standing for election under section 3 would be in jeopardy because “Alberta independence must be understood to mean that Alberta would no longer be allocated seats in the Canadian House of Commons.”[24] Further, even if Albertans were allowed to vote as ex-patriate citizens, “it cannot be said that their right to vote is guaranteed in substance.”[25] There would also “be no guarantee that Albertans would have democratic rights comparable to the existing Charter ss 3-5 in relation to whatever government institutions may exist in an independent Alberta.”[26]

Second, mobility rights under section 6 would be impacted as “whether Albertans retain mobility rights that allow them to enter, reside, and work in Canada is contingent on Canada allowing Albertans to retain Canadian citizenship” and “whether Albertans would be permitted to maintain Canadian citizenship post-independence cannot be known.”[27] 

Third, language rights under sections 16 to 23 would be at risk, specifically as they relate to the protection of the minority Francophone community.[28] Superior courts in Alberta, which are established by Parliament, would cease to exist in their current form, undermining the guaranteed right to be heard in French.[29] Further, there would be no guarantee that laws would be published in French, that government services would be offered in French, or that French-language education would continue to be available.[30]

Even without assuming that a sovereign Alberta would actively derogate from Canadian rights commitments, then, the natural consequences flowing from Alberta independence are grave: Albertans have no guarantee of retaining Canadian citizenship, would no longer be represented in the House of Commons, could no longer vote in federal elections, would lose access to the current Canadian court structure, and may lose the protection afforded to Canada’s second official language.

In addition to the finding of multiple Charter contraventions, Feasby J agreed with the nine First Nations intervenors that the referendum question is equally impermissible on the ground that it contravenes Treaty rights. Section 35 of the Constitution Act, 1982 affirms Treaty rights, and section 2(4) of the CIA “can only be understood as a requirement that a constitutional referendum proposal not contravene [these] rights.”[31] According to Feasby J, Alberta independence would contravene the Numbered Treaties “by removing Canada and substituting an independent Alberta as the entity responsible for fulfilling treaty obligations”[32] Further, as independence would create an international border between the Treaty land in Alberta and the rest of Canada, prohibiting free movement for Indigenous peoples would also violate section 35.[33] While a sovereign Alberta could enter into a new treaty to allow Indigenous people “to move freely between the countries,” Feasby J found that “rights under a treaty between independent countries are different from and less certain than constitutional rights.”[34]

Epilogue

Though Feasby J’s decision serves as an important and sobering reflection on the legal consequences that would flow from an affirmative vote for secession, its direct legal effect has been largely nullified by Bill 14. As noted already, the CEO can no longer bring a case like Sylvestre before the Alberta courts, as the Bill strips them of the ability to refer proposed referendum questions to the courts for review.

A revised version of the question of Alberta sovereignty was approved by Elections Alberta after Feasby J’s ruling in December 2025. With the legal hurdles recognized by Feasby J removed by Bill 14, the group was granted four months (120 days) to collect 177,000 signatures, after which the question would be put to Albertans in a referendum (assuming that this signature threshold is surpassed).[35]

Justice Feasby was clearly alive to the implications of this case and of the government’s attempts to thwart it through Bill 14, particularly for the rule of law. In an unusual epilogue to his opinion, he stated that:

The rule of law plays a critical role with respect to the democratic process where stability of the governing legal regime enhances legitimacy and public confidence in the outcomes of elections and referendums. 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.[36]

In a rare move, he also delivered stinging criticism towards the government’s actions, stating:

Legislating to pre-emptively end this court proceeding disrespects the administration of justice.  We are in an age of scarce government resources that is as evident in the court system as it is anywhere.  Alberta set up a process pursuant to CIA s 2.1 that conscripted the Court to determine a question of public importance and this case was given priority over the needs of other justice system participants.  Only after the parties, intervenors, and the Court invested many days inside and outside of the courtroom to bring this case to an expeditious conclusion, did Alberta decide to change the law.  Alberta’s cavalier disregard for court resources and lack of consideration for the parties and First Nations intervenors who participated in this proceeding in good faith is disappointing to say the least.[37]

Justice Feasby concluded his decision by emphasizing the importance of this case and noting that “[t]he public is entitled to the fruits of this process that has been conducted largely at their expense so that if they are asked to vote on Alberta independence, they have a tool that may help them make sense of the legal dimensions of the secession of Alberta from Canada.”[38]

 ***

Anjali Choudhary is a 3L law student at the University of Alberta and a staff writer for Seven/Fifty

[1] Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 [Sylvestre].

[2] Bill 14, Justice Statutes Amendment Act, 2025, 2nd Sess, 31st Leg, Alberta, 2025 (assented to 11 December 2025), SA 2025, c 22 [Bill 14].

[3] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[4] Citizen Initiative Act, SA 2021, c C-13.2 [CIA]. See further: Sylvestre, supra note 1 at para 9.

[5] CIA, supra note 4, s 6(2), amended by the Election Statutes Amendment Act, 2025, SA 2025, c 7, s 5(7) [ESAA]. See Jason Markusoff, “Danielle Smith’s Reform is Nudging Alberta Separation Vote from ‘if’ Toward ‘when’”, CBC News (1 May 2025), online: <cbc.ca/news/canada/calgary/danielle-smith-alberta-separation-referendum-threshold-analysis-1.7524320> [perma.cc/NC4Z-Q7U9].

[6] CIA, supra note 4, s 4(4), amended by ESAA, supra note 5, s 5(6).

[7] Sylvestre, supra note 1 at para 16.

[8] Ibid at para 1.

[9] Ibid.

[10] Ibid at para 2 (emphasis in original).

[11] Ibid.

[12] Reference re Secession of Quebec, 1998 CanLII 793 (SCC).

[13] Sylvestre, supra note 1 at para 3.

[14] Ibid at para 9.

[15] Ibid at para 29.

[16] Ibid at paras 31–32.

[17] Ibid at para 16.

[18] Ibid at para 53.

[19] Ibid at para 77.

[20] Ibid at para 111.

[21] Ibid at para 129.

[22] Ibid.

[23] Ibid at para 134.

[24] Ibid at paras 135–136.

[25] Ibid at para 136.

[26] Ibid.

[27] Ibid at paras 138–139.

[28] Ibid at para 140.

[29] Ibid at para 141.

[30] Ibid.

[31] Ibid at para 153.

[32] Ibid at para 214.

[33] Ibid at para 231.

[34] Ibid at para 232.

[35] Jack Farrell, “‘Independent State?’ Proposed Referendum Question Approved on Alberta Separation”, CTV News (23 December 2025), online: <ctvnews.ca/edmonton/article/proposed-referendum-question-approved-on-alberta-separation/> [perma.cc/7KRD-KG3R].

[36] Sylvestre, supra note 1 at para 252.

[37] Ibid at para 253.

[38] Ibid at para 254.