CBA intervening in UR Pride case before the Supreme Court

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The Canadian Bar Association is among the more than 20 intervenors in a landmark constitutional case focused on the rights of LGBTQ+ youth in schools and the limits of government power. 

In a factum filed with the Supreme Court of Canada this week in the matter of Government of Saskatchewan v. UR Pride Centre for Sexuality and Gender Diversity, the CBA urges the Court to affirm the importance of access to the courts in Charter matters, particularly given that Charter rights holders extend beyond the electorate, as is the case here with school-age youth.

“The courts’ unique capacities and responsibilities, the promotion of human dignity as a Charter value, and the central importance of state accountability in its relationship to individuals under the rule of law together demand an interpretive approach to section 33 that maximizes access to the courts and their corresponding authority and discretion to issue a declaration,” the factum states.

This Charter challenge dates back to August 2023, when, just ahead of the start of the school year, the Saskatchewan government adopted a policy requiring parental consent before schools could use the preferred names or pronouns of trans, non-binary, or gender-diverse students under the age of 16. It also required schools to seek parental consent if a student asked that their preferred name or gender identity be used.

This policy was introduced without notice or consultation.

The UR Pride Centre for Sexuality and Gender Diversity challenged the policy, arguing it violated the right to security of the person set out in section 7 and equality rights set out in section 15. 

The provincial government then amended the Education Act to incorporate the policy and invoked section 33 of the Charter, the notwithstanding clause, to prevent it from being struck down as unconstitutional.   

UR Pride amended its challenge on the grounds the Act violates the rights of gender-diverse students not to be subjected to cruel and unusual treatment, as set out in section 12 of the Charter. Even though the law cannot be struck down, the centre asked the court to declare it a violation of students’ section 7 and 15 rights.

The Saskatchewan government argued that the invocation of section 33 ousted the court’s jurisdiction to determine Charter violations and rendered UR Pride’s litigation moot. 

The Court of King’s Bench determined it had jurisdiction to hear the matters regarding alleged Charter violations and declined to determine the question of mootness. 

The province took the matter to the Court of Appeal for Saskatchewan, which found that courts do have jurisdiction to declare that a law violates a Charter right, despite the government invoking the notwithstanding clause pre-emptively. Further, UR Pride could include section 12 arguments in its application.

The province appealed to the Supreme Court of Canada, which granted leave in November. No date has been set for the hearing, but it is expected to happen later this year. 

Access to justice undefined

Christine Davies, a partner at Goldblatt Partners in Toronto, is representing the CBA, along with Karin Galldin and Kailun Chen. She says that although the concept of access to justice is widely discussed and many court decisions refer to it, they don’t define it or the interests it protects. 

“What we are doing is trying to help explain to the Court what we think access to justice means, what interests it is aimed at protecting, and how access to justice relates to the court's unique capacities and important institutional role relative to society and relative to the other branches of government,” she says. 

“We are encouraging a rich, robust approach to access to justice that would be complementary to democratic participation and democratic principles.”

The goal is to address the important role of the courts in explaining to litigants what their rights are and providing a forum for legal interests to be addressed and determined, even when section 33 has been invoked. 

The fact that many Charter litigants are already at a disadvantage and face discrimination underscores why the courts are an important forum for their voices to be heard when their rights are at stake. The CBA says the courts have a special role in assessing the legal impacts on the most vulnerable members of society.

Davies says that even when faced with the notwithstanding clause, reasons and justifications for limiting rights must be offered. That benefits litigants and helps educate the public and further their understanding of the Charter. 

“It enhances the dignity of all individuals and enhances the dignity of participants in the litigation process. We’ve put that forward as an additional component of how we look at access to justice.”

Reasons for undermining rights a must

The transparency that comes with reasons and justifications is also key to enhancing public confidence in the legal system, which has been declining in recent decades. 

It also serves to uphold state accountability, which underpins the rule of law.

Davies says the concept that a legislature could invoke section 33 and remove any judicial scrutiny of its decision-making is irreconcilable with principles of state accountability that are directly engaged when the government chooses to limit rights and freedoms.

“Maintaining access to the courts, even for the purposes of granting declaratory relief, understanding and recognizing that the courts will not have the authority to declare a law to be inoperable, is important to ensure that the balance between the state's powers to make laws and the court's role to address challenges to those laws is not taken out of balance or skewed.”

The notwithstanding clause has a five-year limit to force governments to publicly defend their override of rights in a general election before it can be renewed. However, in UR Pride, the students affected by this legislation are Charter rights-holders but are too young to vote and voice their opposition. Other individuals seeking to be heard in court may also be ineligible to vote due to citizenship or lack capacity for political participation. This drives home the important role the courts play in identifying perspectives and impacts that may otherwise receive little attention.

“We need to pay attention to the importance of preserving courts to address claims, whether or not people have the technical capacity to cast a ballot,” Davies says. 

“We see the access to justice considerations as being complementary to democratic principles and democratic participation.”