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Tuesday, February 09, 2016
Saskatchewan Justice

The Constitutional Questions Act, 2012 gives the Lieutenant Governor in Council the power to refer any constitutional or legal issue to the Saskatchewan Court of Appeal for its opinion. Depending on the terms of the reference, the opinion of the Court of Appeal may be considered to be a judgment for the purposes of an appeal to the Supreme Court of Canada. The Act also provides that questions arising under federal-provincial taxation agreements can be referred to the Court of Appeal.

The Act authorizes the Court of Appeal to make rules governing the reference process. A single judge of the Court of Appeal can sit in chambers and make procedural rulings, such as setting filing deadlines and the date for hearing of the reference.

The Attorneys General of Canada and Saskatchewan are automatically parties to any reference referred to the Court and are entitled to make submissions on the issues and to participate in any appeal. Other provinces and territories are not automatically parties to a reference, but they have the right to intervene. If they intend to be heard in relation to a reference, both the Attorney General of Canada and the Attorneys General of any other province or territory must give at least 30 days’ notice to the Court of Appeal and the Attorney General for Saskatchewan.

If members of the public have an interest in a reference, the Court of Appeal may direct that any interested individual or group of persons be notified of a hearing and such persons may apply to be heard as an intervenor.

The Act also sets out the notice requirements when constitutional issues are raised in Saskatchewan courts. The Attorneys General of Canada and Saskatchewan must be given at least 14 days’ notice when:

  • the constitutional validity or constitutional applicability of any provincial or federal act, proclamation, order in council, or regulation is challenged; or 
  • an application is made to obtain a remedy under the Canadian Charter of Rights and Freedoms, other than the exclusion of evidence.

Either Attorney General has the right to appear on the constitutional issue set out on the notice of constitutional question and to make submissions. They are also parties to any appeal on the constitutional issue. Even if proper notice has not been given, the Attorneys General have the right to participate on appeal.

The Act also requires that notice be given to the Attorney General for Saskatchewan for challenges to the validity of provincial regulations on non-constitutional grounds. The Attorney General has the right to appear on the challenge to the regulations and to make submissions. The Attorney General is also a party for the purpose of an appeal on the challenge to the regulation.

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