Case information

Constitutional law — Charter of rights — Notwithstanding clause — Courts — Jurisdiction — Judgments and orders — Declaratory judgments — Government of Saskatchewan prospectively invoking s. 33(1) of the Charter when amending provincial education legislation, to declare that specified provision shall operate notwithstanding ss. 2, 7 and 15 of the Charter — Whether prospective invocation of s. 33 precludes courts from reviewing and declaring that law unjustifiably limits Charter rights — Whether court’s role limited to verifying compliance with formal requirements — Whether allowing bare declaratory relief for law shielded by s. 33 amounting to creation of novel form of declaration that s. 52(1) of Constitution Act, 1982 does not permit — Whether proper for courts to review law, protected by s. 33, for justification under s. 1 — Whether declaration about law protected by s. 33 may be granted in relation to hypothetical scenario where s. 33 had not been invoked — Whether potential expiry of s. 33 declaration is moot because it is contingent on legislature deciding not to renew or alter law through repeal or amendment — Whether amendments to pleadings aimed at evading effect of a valid s. 33 declaration inconsistent with proper purpose of constitutional litigation — Constitution Act, 1982, s. 52(1) — Canadian Charter of Rights and Freedoms, ss. 2, 7, 12, 15, 33 — The Education Act, 1995, S.S. 1995, c. E-0.2, s. 197.4

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In August of 2023, the applicant Government of Saskatchewan as represented by the Minister of Education (hereafter, “Saskatchewan”) introduced a policy concerning student names and pronouns (hereafter, the “Policy”). Under the Policy, if students under the age of 16 requested that schools use preferred first names and pronouns, parental consent was required. Parental consent was not required for students age 16 and over.

The respondent UR Pride Centre for Sexuality and Gender Diversity (hereafter, “UR Pride”) applied to the Saskatchewan Court of King’s Bench for an order declaring that the Policy violated ss. 7 and 15 of the Canadian Charter of Rights and Freedoms in a manner that could not be justified pursuant to s. 1.

Saskatchewan subsequently amended The Education Act, 1995, S.S. 1995, c. E-0.2. The amendment incorporated the Policy into the Act (at s. 197.4) and declared, pursuant to s. 33 of the Charter, that s. 197.4 operates “notwithstanding sections 2, 7 and 15” of the Charter. The Policy was rescinded.

UR Pride then sought to amend its originating application to, among other things:

i. Seek a declaration that the amending legislation violated ss. 7 and 15 of the Charter; and
ii. Challenge the amending legislation on the basis that it violated s. 12 of the Charter.

Saskatchewan sought determinations that the invocation of s. 33(1) of the Charter ousted the court’s jurisdiction to determine allegations of a violation of s. 7 or s. 15 of the Charter, and that the litigation was moot in light of the s. 33(1) declaration.

The chambers judge: (i) granted UR Pride leave to amend its originating application; (ii) determined that the court retained jurisdiction to hear the matters regarding alleged breaches of ss. 7 and 15 of the Charter; and (iii) declined to determine the question of mootness.

A majority of the Court of Appeal for Saskatchewan determined that the appeal should be allowed in part: those portions of the originating application which sought to have the Policy declared unconstitutional must be struck for mootness. The appeal was otherwise dismissed.