McKercher Lecture: Democracy and Deference

Justice Feasby will explain that Charter democratic rights must be understood to guarantee what political scientists call the minimum conditions for democracy. From this foundation, he will then explore how courts should evaluate limits on democratic rights and rights essential to democracy under Charter s 1. Should courts defer to legislative choices in the context of the democratic process or should they apply a stringent justification standard?

Justice Feasby explains that democracy cases are different from other constitutional cases because, when elected representatives make laws governing the democratic process, they are in a conflict of interest. This distinctive feature of democracy cases demands a different approach to the Oakes test, including a coherent methodology of deference.

Justice Feasby will argue that the appropriate level of deference must be determined based on an assessment of two factors: (1) the extent to which the challenged law affords an incumbency advantage; and (2) whether the law limits a core or peripheral democracy principle.  Then, using examples from case law, he will explain how this new approach would affect the application of the Oakes test.

Justice Colin C.J. Feasby graduated from the University of Alberta Faculty of Law in 1998. He later attended Columbia University where he earned an LLM and JSD. He practised at Osler for more than 20 years, serving as the managing partner of Osler’s Calgary Office for four years.

As a lawyer, Justice Feasby had an active trial and appellate practice acting for corporate clients as well as a significant pro bono public interest practice. He appeared before many courts across the country, including the Supreme Court of Canada several times. He has written extensively on constitutional law subjects, particularly concerning democracy issues.

He was appointed Queen’s Counsel in 2020 and then to the Court of Queen’s Bench of Alberta in 2021. In his time as a justice, he has written many significant decisions including concerning Medical Assistance in Dying (MAID), the constitutionality of changes to regulations governing opioid prescription, the constitutionality of the Personal Information Protection Act, and the secession of Alberta from Canada.