Executive Summary: Key Legal and Evidentiary Issues

• The court was asked to determine whether a proposed referendum question on Alberta’s independence contravenes sections 1 to 35.1 of the Constitution Act, 1982, as required by the Citizen Initiative Act (CIA).

• The Referendum Proponent sought to strike the CEO’s reference to the court, arguing it was premature, unnecessary, and unconstitutional, but the court found the referral was mandated by statute and not an abuse of process.

• The CIA requires that the substance of a constitutional referendum proposal—not merely the act of asking a question—must comply with constitutional rights.

• Arguments that the referendum would be consultative and non-binding were found insufficient to make it plain and obvious that the proposal was constitutional, as the legal and political consequences remain uncertain.

• The court emphasized the need for a full hearing with adversarial arguments, including the appointment of amici curiae and potential intervenors, given the significant public interest and potential impact on Aboriginal and treaty rights.

• The motion to strike was dismissed, allowing the reference to proceed to a full hearing on the constitutionality of the proposed referendum question.

Background and facts of the case

Mitch Sylvestre (the “Referendum Proponent”) submitted a constitutional referendum proposal to the Chief Electoral Officer of Alberta (the “CEO”) on July 4, 2025, seeking to ask whether Alberta should become an independent country. Under the Citizen Initiative Act, SA 2021, c C-13.2 (“CIA”), a constitutional referendum proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982. The CEO, as permitted by the CIA, referred the question of the proposal’s constitutionality to the Court of King’s Bench for determination before the proposal could proceed to signature collection.

Sylvestre applied to strike out the reference, arguing it was premature, unnecessary, and potentially unconstitutional, as it imposed legal and financial barriers on the exercise of core democratic rights protected under sections 1 and 3 of the Charter. The Attorney General of Alberta took no position, and the CEO, while nominally opposed, made no oral submissions. The court thus considered the application largely unopposed.

Discussion of policy terms and statutory framework

The CIA and the Referendum Act, RSA 2000, c R-8.4, provide the framework for citizen-initiated constitutional referenda in Alberta. The CIA requires proposals to be clear and unambiguous and not contravene constitutional rights. The CEO may refer questions of constitutionality to the court at the application stage, and this referral suspends the process until the court rules. The Referendum Act states that a referendum result is binding on the government, though the precise legal effect of “binding” remains open to interpretation. The court noted that the CIA’s requirement for constitutional compliance is consistent with international and Canadian practices, where referendum questions are vetted for legality and constitutionality before being put to a vote. Alberta’s mechanism for early judicial review is intended to prevent unconstitutional proposals from advancing and to avoid unnecessary expenditures and divisive debates.

Court’s analysis and outcome

Justice Feasby rejected the argument that the CEO’s referral was premature, finding that the CIA expressly requires such referrals at the application stage. The court also dismissed the claim that the referral itself infringed democratic rights under the Charter, noting that Charter protections for democratic rights do not extend to referenda, only to provincial and federal elections.

On the merits, the court found that the question of whether the proposed referendum contravenes constitutional rights is not plain and obvious. The CIA is concerned with the substance of the proposal, not just the act of asking a question. Issues such as the potential impact on mobility rights and Aboriginal and treaty rights, as well as the binding nature of the referendum, require thorough argument and cannot be resolved summarily.

Given the lack of adversarial argument and the significant public interest, the court ordered the appointment of amici curiae to ensure that all perspectives, including those arguing unconstitutionality, are presented. The court also established a process for potential intervenors, particularly noting the importance of First Nations’ perspectives given the possible impact on their rights.

Conclusion and result

The motion to strike the CEO’s reference was dismissed. The court determined that the constitutionality of the proposed Alberta independence referendum raises complex and significant legal questions that warrant a full hearing with input from amici curiae and intervenors. The process will continue, and the court will ultimately decide whether the proposal can proceed, but at this stage, no amount was ordered or awarded as the matter remains at a preliminary stage. The successful party on this motion was the Chief Electoral Officer of Alberta, as the reference will proceed to a full hearing.