The Supreme Court of Canada in Ottawa.Brendan Burden/The Globe and Mail
The Saskatchewan government said on Thursday it plans to appeal a case it recently lost in the lower courts to the Supreme Court of Canada.
And, if that’s granted, the province added an unusual request: It wants the top court to combine the proposed appeal with a major Supreme Court case already in progress on Quebec’s secularism law.
The common legal issue that ties the Saskatchewan and Quebec cases together is the notwithstanding clause, Section 33 of the Charter of Rights and Freedoms. The clause allows government legislation to override rights such as freedom of religion, a political strategy that has become popular among some premiers in recent years.
A key unsettled legal question is whether courts can declare a law that is protected by the notwithstanding clause to be a clear violation of rights, even as that law is allowed to stand because of Section 33.
Last year, the Quebec Court of Appeal said no, there is no such role for judges; last month, the Saskatchewan Court of Appeal said yes, there is.
This question is one of the main issues to be decided at the Supreme Court as it hears a landmark case on Quebec’s Bill 21, a 2019 law that bans public sector workers, including teachers, from wearing religious symbols, such as hijabs, on the job. Quebec shielded the law against court challenges with the notwithstanding clause and last year won at the Quebec appeal court, where the issue of court declarations was part of the ruling.
Judge can review Saskatchewan pronoun law despite use of notwithstanding clause, appeal court rules
The Saskatchewan case revolves around a 2023 law, also protected by the notwithstanding clause, that requires parental consent when children younger than 16 want to change their pronouns or names at school.
Should the Supreme Court decide to grant Saskatchewan’s request – opposing rulings from provincial appeal courts usually garner the top court’s attention – some lawyers involved in the Bill 21 case say it would soften the political heat around the legal debate. Quebec has repeatedly said its autonomy is at stake. Including Saskatchewan would make it a more national case.
“It takes the notwithstanding clause out of the crucible of Quebec nationalism,” said Sujit Choudhry, lawyer for a coalition of South Asian interveners in the Bill 21 case.
Bill 21 is set to become a landmark Supreme Court decision because of the political stakes and potential reverberations. The legal details and bounds of the notwithstanding clause have not been adjudicated in-depth at the Supreme Court since the late 1980s, given that the clause went unused by governments for many years.
The question of whether any court can make a declaration about a law that invokes the notwithstanding clause is the central issue in the Saskatchewan case. The provincial government had argued courts cannot make such declarations.
Federal Justice Minister says notwithstanding clause should ‘always be a tool of last resort’
On Thursday, following the loss last month at the Saskatchewan appeal court, the province’s lawyers were part of a joint letter to the Supreme Court with counsel for UR Pride Centre for Sexuality and Gender Diversity, the group that had taken the province to court and won. UR Pride, even though it won, is appealing a smaller legal point it lost last month.
Both sides want the Supreme Court to take on the case and, if the top court agrees, they requested it “be heard alongside” Bill 21, in a letter signed by lawyer Adam Goldenberg of McCarthy Tétrault, counsel for UR Pride. The two sides will file official legal applications this month.
The Saskatchewan government in a statement on Thursday cited the “commonality of issues” between its case and Bill 21, and said if the Supreme Court agrees to hear their appeal, it makes sense to have asked the top court to combine the hearings.
This request to the Supreme Court to juggle cases was seen on Thursday by some lawyers involved in Bill 21 as a long-shot distraction. But the Supreme Court in the past, in different situations, has combined cases to hear them together or heard related cases separately and issued judgments on each at the same time.
The Quebec government did not respond to a request for comment. Lawyers for several appellants declined comment.
One of the six appellants in Bill 21 is the Fédération autonome de l’enseignement, a coalition of Quebec teachers unions. Their counsel, Montreal lawyer Frédéric Bérard, said the decision is up to the Supreme Court but he feels it’s a “pretty good idea” to hear the related cases together since they involve the same legal questions. He also said it would dilute the political conflict.
“It’s less Quebec versus Canada,” said Mr. Bérard.
Lawrence David, a University of Ottawa law professor who is counsel to a Bill 21 intervener, the Public Interest Litigation Institute, said the “groundbreaking” Saskatchewan appeal court ruling has already become a part of the Bill 21 case since it has been deployed in legal filings to the Supreme Court.
He called the UR Pride and Saskatchewan request an “audacious and commendable gesture.”