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.
At issue is the Saskatchewan 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 of Rights and Freedoms, the notwithstanding clause, to protect it from court challenges.
This is new legal territory in a continuing debate about the Charter’s notwithstanding clause and court fights over how governments use that power. The Saskatchewan appeal court ruling is focused on the prairie province but also addresses legal questions that are currently being considered at the Supreme Court of Canada in a case from Quebec.
From 2024: Saskatchewan government lawyers argue pronoun law best for gender-diverse children
In Saskatchewan’s pronouns case in early 2024, a lower court for the first time ruled that it had jurisdiction to weigh alleged rights violations brought by Regina’s UR Pride Centre for Sexuality and Gender Diversity. The province appealed and the case was heard over two days last September.
In a 4-1 ruling on Monday from the appeal court, 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 also can also issue a “declaratory judgment, should it so choose.”
A declaratory judgment in such a case could include a court saying legislation violates rights. However, even with such a declaration, a law shielded by Section 33 could not be struck down by the court.
Opinion: Political leaders need to be challenged on the notwithstanding clause
Egale Canada, which served as legal counsel to UR Pride, said on Monday in a statement that the appeal court ruling “reinforces the critical role of the courts in determining the constitutionality of government action.”
The decision may be appealed. The Saskatchewan government didn’t immediately reply to a request for comment on Monday morning but when it lost the lower court ruling last year, Bronwyn Eyre, then the province’s justice minister, said Saskatchewan would push an appeal to the Supreme Court of Canada if necessary.
The Section 33 case currently 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.
Quebec tables bill that would expand religious symbol ban, force students to uncover faces
Quebec’s provincial government won two court rulings in the province. A hearing at the Supreme Court has not yet been scheduled. Legal arguments are in the process of being filed.
Last year, the Quebec Court of Appeal supported the provincial government’s broad ability to use Section 33.
The appeal court also refused to rule formally on whether the law 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.”
This is the opposite conclusion reached by the Saskatchewan appeal court.