Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction of courts to review legislation subject to a s. 33 Charter declaration was a central dispute.

• The effect of the notwithstanding clause on Charter rights and judicial remedies was closely examined.

• Mootness of the challenge to the original Policy, following its revocation, was addressed.

• The scope of permissible amendments to pleadings in constitutional litigation was contested.

• Whether s. 197.4 of the Education Act could be challenged under s. 12 of the Charter was debated.

• Discretion of the court to grant declaratory relief, even when jurisdiction exists, remained unresolved.

Background and facts

The case arose after the Government of Saskatchewan introduced a policy in August 2023 requiring parental consent before teachers or school staff could use a new gender-related preferred name or gender identity for students under 16. The UR Pride Centre for Sexuality and Gender Diversity (UR Pride) challenged this policy, alleging it violated sections 7 (security of the person) and 15(1) (equality) of the Canadian Charter of Rights and Freedoms. After an injunction was granted against the policy, the government enacted The Education (Parents’ Bill of Rights) Amendment Act, 2023, which added section 197.4 to The Education Act, 1995. This new section essentially replicated the policy and included a “notwithstanding clause” under section 33 of the Charter, declaring that the provision would operate despite sections 2, 7, and 15 of the Charter. Shortly after the amendment, the original policy was revoked.

UR Pride sought to amend its application to challenge both the revoked policy and the new legislative provision, including an allegation that section 197.4 also violated section 12 of the Charter (protection against cruel and unusual punishment). The government opposed these amendments and sought to have the action dismissed, arguing that the use of section 33 ousted the court’s jurisdiction, that the challenge to the revoked policy was moot, and that the section 12 claim was not properly pleaded.

Policy terms and clauses at issue

The central legislative clause at issue was section 197.4(1) of The Education Act, 1995, which required parental consent for the use of a new gender-related preferred name or gender identity for students under 16. Section 197.4(3) invoked section 33 of the Charter, stating the provision would operate “notwithstanding sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms.” This invocation of the notwithstanding clause was designed to shield the provision from being invalidated on the basis of inconsistency with those Charter rights for a period of five years.

Court decisions and reasoning

At first instance, the Court of King’s Bench judge allowed UR Pride to amend its application and dismissed the government’s motions to strike or stay the proceedings. The judge held that the use of section 33 did not remove the court’s jurisdiction to declare whether section 197.4 limited Charter rights, though the court retained discretion whether to grant such relief. The judge also found the amendments would not prejudice the government and that the section 12 claim was not frivolous or vexatious. However, the judge declined to rule on mootness regarding the revoked policy at that stage.

On appeal, the Saskatchewan Court of Appeal confirmed that section 33 of the Charter does not prevent courts from determining whether a law limits Charter rights, even if the law is temporarily shielded from invalidation. The court held that the Court of King’s Bench retained jurisdiction to issue declaratory relief regarding whether section 197.4 limits Charter rights under sections 7 and 15, and that UR Pride could pursue a claim under section 12 because the notwithstanding clause had not been invoked for that section. However, the court agreed with the government that, since the original policy had been revoked and there was no evidence of harm, the challenge to the policy was moot and should be struck from the application.

Outcome and orders

The appeal was allowed in part. The Saskatchewan Court of Appeal ruled that UR Pride could continue its challenge to section 197.4 of The Education Act, 1995, including claims under sections 7, 12, and 15 of the Charter. However, all claims relating to the revoked policy were struck as moot. The litigation may proceed in the Court of King’s Bench on the remaining issues. The court awarded UR Pride costs for the application to amend its originating application, while costs for the government’s applications were ordered to be “in the cause.” The total monetary award for costs cannot be determined from the decision.