People attend a rally against the Saskatchewan government's pronoun policy in front of the province legislature in Regina in October 2023. The notwithstanding clause in Quebec's Bill 21 is also being appealed at the country's Supreme Court.Heywood Yu/The Canadian Press
A government that uses the Charter’s notwithstanding clause to override the rights of Canadians in legislation is not automatically shielded from judicial review, according to a major ruling on Monday from the Saskatchewan Court of Appeal.
The decision, which applies in the Prairie province, has national significance. This is new legal territory in a continuing debate over the Charter of Rights and Freedoms’ notwithstanding clause, Section 33, and court fights over how governments use that power to override rights.
Last year, the Quebec Court of Appeal, in a case now at the Supreme Court of Canada, took the opposite view on the issue of judicial review of laws shielded by Section 33.
At issue in Saskatchewan is the provincial government’s pronoun law, enacted in 2023. It requires parental consent at school when children younger than 16 want to change their pronouns or names.
The province used Section 33 of the Charter to protect it from court challenges.
The section can be used by Parliament and provincial legislatures to temporarily override certain other sections of the Charter, and thus shield laws from being struck down by courts as unconstitutional.
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In early 2024, a lower Saskatchewan court ruled that it had jurisdiction to weigh alleged rights violations from the pronoun law, in a case brought by the UR Pride Centre for Sexuality and Gender Diversity at the University of Regina. The province appealed and the case was heard over two days last September.
In a 4-1 ruling on Monday from the Saskatchewan Court of Appeal, written by Chief Justice Robert Leurer, it was decided UR Pride’s litigation may continue at the Court of King’s Bench.
The lower court “has the jurisdiction” to determine if the pronouns law has violated individual rights, Chief Justice Leurer wrote. The lower court can also issue a “declaratory judgement, should it so choose.”
A law shielded by Section 33 could not be struck down by a court as unconstitutional even with a declaration, which could include the court saying the law violates rights.
Even so, Chief Justice Leurer signalled the importance of judicial review. He wrote that “the proper functioning of our constitutional democracy is enhanced” if Canadians become aware of laws that limit Charter rights and freedoms but are allowed to operate because of Section 33.
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What happens next isn’t certain. The government of Saskatchewan said it is reviewing the decision and considering its next steps. Last year, after losing in lower court, the government said it would appeal to the Supreme Court if necessary.
UR Pride’s legal victory is important, but it doesn’t change the fact the law remains in place, said Bennett Jensen, legal director at Egale Canada, counsel to UR Pride.
“We have seen the government be unrelenting in enforcing a policy we know will harm young people,” Mr. Jensen said.
The Section 33 case already in progress at the Supreme Court concerns Quebec’s Bill 21, a 2019 law that used the notwithstanding clause and prevents public-sector workers, including teachers, from wearing religious symbols, such as hijabs, on the job.
Since 2018, after many years when Section 33 was rarely applied, centre-right governments in Ontario, Quebec and Saskatchewan have used the clause to override rights in several pieces of legislation.
Quebec tables bill that would expand religious symbol ban, force students to uncover faces
Quebec’s provincial government has had more success in court than its counterpart in Saskatchewan. Quebec has won two court rulings in the province, which led to the Supreme Court appeal. A hearing has not yet been scheduled but could be this winter. It is expected to stretch out over three days – an unusually long hearing. Legal arguments are in the process of being filed.
The Saskatchewan appeal court ruling will become an important legal reference point at the Supreme Court, but legal experts say that the two cases may not be officially connected at the top court.
Among numerous issues in the Bill 21 case, the Supreme Court is being asked whether courts should be allowed to declare rights violations even as Section 33 permits a law to stand.
Last year, the Quebec Court of Appeal supported the provincial government’s broad ability to use Section 33.
Among the conclusions was the appeal court refusing to rule formally on whether Bill 21 contravenes any rights. In a summary of its decision, the court said the use of the notwithstanding clause limits judicial review and “any notion of redress – including declaratory relief – is thus excluded.”
That’s the opposite of the conclusion reached by the Saskatchewan appeal court.
The Canadian Civil Liberties Association, an intervener in the Saskatchewan pronouns case and an appellant in the Bill 21 hearing, said Monday’s decision shows the “important role for the courts to play” even when governments use Section 33.
“It’s really timely that the Supreme Court has to reconcile this,” said Harini Sivalingam, director of the association’s equality program.