Challenging the constitutionality of provisions added by Bill 24, ‘An Act to Support Gay-Straight Alliances’

PT et al v. Alberta

Challenging the constitutionality of provisions added by Bill 24, ‘An Act to Support Gay-Straight Alliances’

PT et al v. Alberta

The Justice Centre launched a court application on behalf of a coalition of parents and independent schools, challenging the constitutionality of School Act provisions added by Bill 24, ‘An Act to Support Gay-Straight Alliances’.

This court application asked the court to strike down provisions of Bill 24 on the basis that they violate the rights of parents and schools protected by section 2(a), 2(b), 2(d) and 7 rights under the Canadian Charter of Rights and Freedoms (the “Charter”) and the Alberta Bill of Rights.  The court application also sought an injunction staying the operation of the challenged provisions until the Court rules on their constitutionality.

Primary among the provisions challenged was the requirement that prohibits principals and teachers from notifying parents about student organizations or “activities”, other than the establishment of the organization or the holding of the activity.

The applicants included 26 faith-based schools in Alberta, including Jewish, Christian, and Sikh schools. Bill 24 threatened faith-based schools by attacking the freedom of these schools to create safe and welcoming learning environments while also respecting their unique religious characters, and by preventing schools from being open and transparent with parents.

The applicants also included more than ten individual parents who were concerned about Bill 24’s provisions that prevent parental knowledge about their children in GSA-related activities. Creating no-go zones for parental awareness jeopardizes the safety of Alberta’s children, especially the most vulnerable, and undermines parents’ ability to support and protect their own children.

Bill 24 was passed by the Alberta Legislature in November of 2017.  Bill 24 amended the School Act to make it illegal for the school principal to notify parents about their child’s involvement in student organizations, including Gay-Straight Alliances (GSAs), or “activities” established under section 16.1 of the School Act.

Prior to the passage of Bill 24, principals and teachers had discretion to withhold information from parents on a case-by-case basis.  In rare and unusual cases where there was a risk that providing parents with information would result in a risk of abuse or other harm to a student, schools had the legal authority to withhold information from parents.  Bill 24 removed this discretion from teachers and principals and replaced it with a blanket prohibition that prevented informing all parents, without exception, about their children’s involvement in GSAs and GSA-related activities.

Bill 24 further required principals to set up a GSA or facilitate a GSA-related activity “immediately” (at the request of one student) without consulting the school board or parents, and without considering whether the GSA and GSA-related activities are compatible with the school’s nature, character, and values.  Parents with concerns about the sexual or ideological content of what was presented in GSA meetings or at GSA-related activities could no longer protect their children from this content, due to the secrecy provisions of Bill 24.

Bill 24 made no distinction between a five-year-old in Kindergarten who is experiencing gender identity confusion, and a seventeen-year-old in Grade 12 who does not wish to discuss sexuality with his parents.  In both cases, teachers were legally barred from providing any information to parents about GSAs or GSA-related activities.  The Alberta government’s GSA Network website welcomes queries from children and asked whether they were in elementary school or high school.

The Supreme Court of Canada has ruled that government may not interfere with parental rights to make decisions for their children, unless the government first proves that the parents’ decisions are harmful to the child, or that the child is a mature minor and has made a fully informed decision contrary to parental views.  Government may only interfere on a case-by-case basis, and government must bear the onus of proving or justifying its interference in a court of law, upon notice to the parents, who can dispute the government’s claims.

Bill 24’s infringement of parental rights was not justified by a blanket ban on withholding information from all parents, including the 99% of parents who love and support their children unconditionally, and know their children better than anyone else.  Requiring school principals and teachers, by law, to withhold information from all parents without exception was contrary to the Constitution, contrary to Canada’s legal obligations under international law, contrary to the Alberta Bill of Rights, and contrary to other Alberta legislation such as the Family Law Act.

Section 7 of the Charter only permits interference with a parent’s role after due process, on a case-by-case basis, in accordance with the principles of fundamental justice.  Section 2 of the Charter protects a parent’s right to educate based on parents’ own conscience and religious beliefs.  The Charter also protects the right of religious educators not to be compelled to express thoughts and beliefs against their will.

The prohibition on parental notification concerning a GSA or GSA-related activity violated the fundamental right of parents to be informed concerning their children’s education.  Further, there was no real benefit to be realized from the prohibition, since the few children at risk from their parents are already protected by child protection legislation.

Bill 24 evidenced the government’s intention to control parents and religious schools and infringe their constitutional rights.   In so doing, the government undermined or effectively negated the exercise of parental rights in education, through the choices of parents to opt out of the public schools and enrol their children in schools consistent with their beliefs, religious and conscientious.  Rather than respecting parents’ choices, Bill 24 instead compelled independent schools to adopt policy positions in support of the government’s preferred ideology, evidenced in the materials it supports and recommends for use in GSAs.  This requirement violated parents’ and private schools’ fundamental freedoms of conscience and religion, thought, belief, opinion and expression, and association, guaranteed under section 2 of the Charter.

Bill 24 was therefore unconstitutional, as both its purpose and effect was to deny the rights of parents under section 7 and section 2 of the Charter, and to do so without the requisite justification.

A summary of the Justice Centre’s legal analysis on Bill 24 can be found here.

In September of 2018, Deputy Minister Curtis Clark threatened religious schools with defunding and loss of accreditation if they did not remove religious content from their “Safe and Caring” school policies.

During the week of October 1-5, several schools whose Safe and Caring policies had been deemed non-compliant by the Alberta Education “Safe and Caring Team” requested clarification (123) as to how the religious views expressed in their policies could be found to violate “diversity” or be “unwelcoming, uncaring and/or disrespectful”.The October correspondence showed the Alberta government refusing to provide any explanation as to how, for example, “diversity” is threatened by a school’s policy that reflects the school’s belief in the Bible as truth.  The October correspondence showed Alberta Education justifying its ban on faith references in school policies solely on the basis of “the opinion of the Minister.”

Various schools responded to this “rainbow reprimand” by asking simple and direct questions about how or why the religious content of their school policies was contrary to “diversity” or contrary to providing a safe, welcoming, caring and respectful learning environment.  Alberta Education responded with a form response (12) that cited only “the opinion of the Minister” to support Alberta Education’s conclusion that these schools’ religious beliefs, expressed in their own school policies, were unacceptable.

A hearing of the Bill 24 court injunction application was held on June 20, 2018, at the Court of Queen’s Bench in Medicine Hat. On June 27, the Court dismissed the application for an injunction. The Applicants appealed this decision to the Alberta Court of Appeal.

The Court of Appeal issued a split decision, with Justice McDonald holding that there would be irreparable harm done to the schools in question if they are forced to comply the legislation that impinges their religious beliefs to keep open pending a determination of its constitutionality.

This matter did not proceed to a hearing on the merits.

On July 5, 2019, the Alberta Legislature passed Bill 8, which replaced the School Act, including those provisions amended by Bill 24, with the Education Act, effective September 1, 2019. Accordingly, on September 12, 2019, the court challenge to Bill 24 was officially discontinued.

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