CBA intervening in UR Pride case before the Supreme Court
The CBA’s National Magazine talked to Christine Davies about the CBA’s intervention “in a landmark constitutional case focused on the rights of LGBTQ+ youth in schools and the limits of government power”.
The case, Government of Saskatchewan as represented by the Minister of Education v. UR Pride Centre for Sexuality and Gender Diversity, involves a policy implemented by the Government of Saskatchewan that mandated parental consent for the use by schools of the preferred first names and pronouns of any students under the age of 16. When the policy was challenged under the Canadian Charter of Rights and Freedoms by UR Pride Centre for Sexuality and Gender Diversity, the government incorporated the policy into the provincial Education Act and used the Charter’s Notwithstanding Clause in an attempt to protect it from further challenge.
UR Pride then sought to challenge the legislation under the Charter. The Government argued that the legislation could not be challenged, since the use of the Notwithstanding Clause ousted the court’s jurisdiction and rendered the case moot. The applications judge rejected the Government’s argument, holding that the court retained jurisdiction to hear the arguments alleging breaches of the Charter. The court of appeal dismissed the Government’s appeal on that issue. The Government has appealed again, and the case is now headed to the Supreme Court of Canada. The appeal will likely be heard in late 2026.
The National spoke to Christine Davies about the position the CBA will take in the case:
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.”
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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.”
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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.”
You can read the whole article here.