Saskatchewan used the notwithstanding clause in 2023 to shield legislation that required parental consent at school for children younger than 16 wanting to change their pronouns or names.Brendan Burden/The Globe and Mail
The Supreme Court of Canada agreed Thursday to hear an appeal of a Saskatchewan case on the Charter’s notwithstanding clause, adding a broader national scope to legal questions already in motion at the top court in a landmark Quebec secularism case.
Both the Saskatchewan and Quebec cases revolve around potential limits on governments’ use of Section 33 of the Charter of Rights and Freedoms, the notwithstanding clause. The cases mark the first time the top court has weighed these issues in depth since the late 1980s.
The Supreme Court’s decision to add a second notwithstanding clause case to its list of pending hearings follows last week’s decisions in Alberta and Quebec to use the clause in new laws. Section 33 of the Charter allows legislators to override some rights and it shields legislation from legal challenges.
Last January, the Supreme Court agreed to hear a Quebec case over the province’s secularism law. In 2019, Quebec deployed the notwithstanding clause to protect Bill 21, which banned some public-sector workers, including teachers, from wearing religious symbols such as hijabs on the job.
All the legal arguments have been filed at the top court, but a hearing has not yet been scheduled.
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Saskatchewan used the notwithstanding clause in 2023 to shield legislation governing transgender children. That law requires parental consent at school when children younger than 16 want to change their name or pronouns.
In August, on a relatively narrow legal question, the Saskatchewan Court of Appeal ruled that judges should be able to issue declarations of rights violations, even if the notwithstanding clause means that a law may continue to operate. The case was brought against the provincial government by the UR Pride Centre for Sexuality and Gender Diversity at the University of Regina.
The question of judicial declarations when governments use the notwithstanding clause is one of the main issues, among an array of legal questions, in the Quebec Bill 21 case.
In September, both UR Pride and Saskatchewan asked the Supreme Court to hear their case on an expedited basis. In a legal filing, Saskatchewan asked the top court to hear its case and Quebec’s together, if the court agreed to its appeal.
On Thursday, the court said the two cases would be heard separately. Legal experts say the cases could likely be heard back-to-back, in winter or spring 2026.
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Adam Goldenberg, a lawyer at McCarthy Tétrault and counsel for UR Pride, said it makes sense the Saskatchewan and Quebec cases will be heard separately. The top court’s decision likely reflects the limited overlap between the two, he added.
In the Saskatchewan case, Mr. Goldenberg said the province’s law hurts trans and gender-diverse youth.
“We look forward to convincing the Supreme Court that it should uphold the decision of the Court of Appeal for Saskatchewan,” Mr. Goldenberg said.
In a statement, the Saskatchewan government said that by agreeing to hear its case, “the Supreme Court has affirmed our understanding that resolving this issue is a matter of national importance.”
While the Saskatchewan appeal court in August ruled there is a role for judges to make declarations of rights violations in notwithstanding clause cases, the Quebec Court of Appeal in 2024 came to the opposite conclusion.
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The Quebec appeal court, in a summary of its judgment, said that when the notwithstanding clause is used, judges can no longer consider whether a law violates the Charter and “any notion of redress – including declaratory relief – is thus excluded.”
Numerous parties in the Quebec case want the Supreme Court to support judicial declarations when the notwithstanding clause is used, including the federal government and the provincial governments of British Columbia and Manitoba. Governments in Quebec, Ontario and Alberta, as well as Saskatchewan, are resolutely against such an outcome.
In the Quebec Bill 21 case, other major legal debates on the table include the Charter’s Section 23, on minority language educational rights, and Section 28, on gender equality rights.
Chief Justice Richard Wagner in June said the Bill 21 hearing, which has a record number of interveners, could be scheduled over three days when it is booked into the court’s calendar.
Scheduling the Saskatchewan case for the same point in time makes sense, said Preston Lim, an assistant law professor at Villanova University near Philadelphia, and a former judicial law clerk to Chief Justice Wagner at the Supreme Court.
“I think it would be best for the court to organize the hearings back-to-back,” Prof. Lim said.
The notwithstanding clause was rarely used for years, but in the late 2010s some conservative provincial governments took a renewed interest in the tool.
Last week, Alberta used the clause in a law to force striking teachers back to work. It has said it may add the clause to three laws from late last year that affect trans youth.
In Quebec last week, the province used the clause in a law that expands the ban on religious symbols to include anyone who interacts with students in schools.