Saskatchewan Premier Scott Moe made headlines recently when he announced he would invoke Section 33 of the Canadian Charter of Rights and Freedoms (the “Charter”), often referred to as the “Notwithstanding Clause”, in order to pass his government’s pronoun policy legislation.
The “Use of Preferred First Name and Pronouns by Students Policy” (the “Policy”) has sparked controversy and outrage since it was announced on August 22, 2023; and rightly so. The Policy requires schools – i.e., teachers – to seek parental consent before using a student’s preferred name, gender identity, and/or gender expression in a school environment where the student is a child under 16 years of age.
Following announcement of the Policy, the UR Pride Centre for Sexuality and Gender Diversity filed a court application seeking an injunction on the basis the Policy violates the rights of trans, non-binary, and gender-diverse students under the age of 16.
On September 28, 2023, Court of King’s Bench Justice Megaw ruled[i] the implementation of the Policy will be delayed until a full hearing can be conducted on whether the policy violates the Charter. In response, the Premier announced he would be recalling the Legislature to pass the Policy by invoking the “notwithstanding clause”, allowing the Policy to avoid judicial scrutiny under the auspices of “protecting parental rights”.
In making his announcement, Premier Moe suggested the Policy “has the strong support of a majority of Saskatchewan Residents, in particular, Saskatchewan parents”.[ii] Premier Moe’s statement is at odds with the evidence presented during the injunction hearing where the Court found Mr. Michael Walter, Assistant Deputy Minister with the Saskatchewan Ministry of Education, acknowledged in sworn affidavit material that the Ministry received only 18 letters in support of this Policy. Mr. Walter further deposed that only 7 of those letters indicated they were from parents of school aged children. There was no evidence any of the letters were from Saskatchewan Residents.[iii]
In accordance with the Premier’s comments, the Legislature was recalled two weeks early on October 10th, 2023. Bill 137, An Act to amend The Education Act, 1995 respecting parental rights, which encompasses the aims of the Policy, was first read on October 12, 2023. The Bill must be read and passed three times before it may be enacted and become law.
The Charter is part of The Constitution Act, 1982[iv], (the “Canadian Constitution”) which is the supreme law of Canada. The Charter grants several rights and freedoms including the right to personal security and the right to equality both of which are at issue in the injunction application. These rights are not absolute, and governments can limit these rights through laws so far as such limits can be “demonstrably justified in a free and democratic society”. Before striking down a law which impedes upon a Charter right, the courts must determine if such law is justified by applying the following criteria:
- the objective of a proposed limit must be of sufficient importance to justify overriding a constitutionally protected right or freedom;
- the proposed limit must be rationally connected to the objective;
- the limit should impair the right or freedom to no greater extent than is required to achieve the objective; and
- there must be proportionality between the effects of the limits and the objective of the limits.
Under Section 52 of the Canadian Constitution any law which is inconsistent with the Canadian Constitution is, to the extent of the inconsistency, of no force and effect. Governments can seek to justify the law using the criteria discussed above. However, if the court finds the law’s infringement on a Charter right is unjustified, it will declare the law, to the extent of such infringement, of no force or effect. In such instance, governments can invoke the Notwithstanding Clause to override the court’s ruling and force the law into effect.
What is the Notwithstanding Clause?
The Notwithstanding Clause refers to Section 33 of the Charter which allows the government (either federal or provincial) to override certain sections of the Charter to prevent the court from invalidating a law which violates certain rights granted under the Charter. Section 33 is unique among countries with constitutional democracies.
Other constitutional democracies (for example, the United States) do not have a similar Notwithstanding Clause and so great care should be taken when legal concepts from countries like the USA are presumed to be law in Canada. Legal concepts like “parental rights” are not a Canadian legal principle. The concept of “parental rights” is a US legal principle which is most often cited as originating from the United States Supreme Court case of Troxel v. Granville, 530 U.S. 57 (2000). Decisions of the United States Supreme Court are not applicable in Canada nor are the other laws of the United States defining “parental rights”.[v] Therefore, use of the Notwithstanding Clause to enforce rights which do not explicitly exist in Canada seems contrary to common sense.
The Notwithstanding Clause does not create new rights for provinces – rather, it is typically used to suspend certain rights of Canadian citizens. For example, the use of the Notwithstanding Clause may suspend the right to life, liberty, and security of person (Section 7); suspend security against unreasonable search or seizure (Section 8); suspend the right not to be arbitrarily detailed or imprisoned (Section 9); suspend the right to be informed of reasons for detention and retain legal counsel (Section 10); suspend the right to be tried in a reasonable period of time (Section 11); suspend the right not to be subjected to any cruel and unusual treatment (Section 12); suspend the right to avoid self-incrimination (Section 13); suspend the right to assistance of an interpreter in legal proceedings (Section 14); and suspend the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (Section 15). Notable rights that cannot be overridden include the right to vote, mobility rights, and minority language rights.
Use of the Notwithstanding Clause takes away freedom from Saskatchewan people – it does not provide freedom. By seeking to invoke the Notwithstanding Clause to push through this discriminatory Policy against trans, non-binary, and gender-diverse students, the government is depriving Saskatchewan citizens of these fundamental rights. Ask yourself, if a government is willing to invoke the Notwithstanding Clause to take away the rights of trans, non-binary, and gender-diverse students, what rights might they try to take away next.
Invoking the Notwithstanding Clause
A government may also invoke the Notwithstanding Clause pre-emptively, as Premier Moe intends to do. Justice Megaw’s decision did not render a verdict on whether the Policy violated the Charter, it only paused implementation of the Policy in order to allow a thorough judicial review on the issue. By reintroducing the Policy and invoking the Notwithstanding Clause, the Saskatchewan government is circumventing the judicial process to prevent the full judicial review contemplated by Justice Megaw. While this is permissible under the Charter, we note the clause has only been invoked approximately 21 times[vi] since 1985 and has never been invoked by the federal government. The most notable use of the clause was done so by Quebec in protest against the passing of the Charter. Quebec applied the Notwithstanding Clause to all existing legislation and future legislation until December 1985 when a new government ceased the practice. Saskatchewan utilized the Notwithstanding Clause in back-to-work legislation in 1986 in response to a Court of Appeal decision that ruled forcing strikers to return to work violated the Charter. The Supreme Court of Canada overturned the decision and therefore invocation of the clause was ultimately unnecessary.
Exemptions under the Notwithstanding Clause can last up to five years after which the government must reenact the declaration or the declaration ceases to have effect. The government can continue to reenact the declaration for successive periods of up to five years.
Policy behind the Notwithstanding Clause
The Notwithstanding Clause emerged during the drafting of the Charter as a compromise by then Prime Minister Pierre Trudeau to gain the support of the anglophone provinces for the passing of the Charter. The clause addressed the concern that the court, through its role of interpreting and enforcing the Charter, would have too much power and could prevent parliament and the legislatures as elected representatives of the people from passing laws. The five year term expiry on the Notwithstanding Clause was intended to temper the Notwithstanding Clause by ensuring the matter would be reconsidered in future parliamentary or legislative debate.
Controversial both at the time of its enactment and to this day, the clause was largely seen by contemporary lawmakers and commentators as a safety valve to be used only on rare occasions and in relation to “non-controversial issues”, enabling legislatures to overcome unacceptable judicial determinations where there was popular support for doing so.[vii]
The pre-emptive use of the Notwithstanding Clause, such as what the Saskatchewan Premier is doing with the pronoun Policy, garners additional scrutiny. A common sentiment among legal scholars and the public alike is that overriding Charter rights should not be done without thorough and careful consideration and this could be undermined by pre-emptively using the clause to shield a law from judicial review.
However, the courts in democratic countries play a crucial role in maintaining fundamental freedoms of individuals. Courts protect against government interference in the daily lives of Canadian citizens. To state that a decision of a judge in a Saskatchewan court constitutes “judicial overreach” is simply incorrect, and a very concerning suggestion in a constitutional democracy. It is the very role of judges and courts to ensure governments work within the four corners of the law. We are seeing a dangerous precedent if provincial governments in Canada can enact whatever law they choose irrespective of the rulings of courts. The courts must remain independent of governments and able to interpret laws put in place by governments – this is the bedrock of democratic institutions in Canada.
Concerns about invoking the Notwithstanding Clause
Concerns about the Saskatchewan Government’s proposed use of the Notwithstanding Clause is shared by many, including the Canadian Bar Association and Saskatchewan Trial Lawyers’ Association. All lawyers and law firms in Saskatchewan should be concerned that Bill 137 is an inappropriate use of the Notwithstanding Clause. The clause is a powerful tool and should only be used in limited circumstances and should never be used to limit or take away fundamental rights of citizens without a prolonged, thorough, and expansive review of the necessity of such legislation and the potential harm to those affected; in other words, the type of review envisioned by Justice Megaw in his injunction decision which the government seeks to avoid by invoking the clause.
If you, or anyone you know, has questions about the Charter, the Notwithstanding Clause, the Canadian Constitution or any matters related to this issue, please reach out to our lawyers at Procido LLP.
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[i] UR Pride Centre for Sexuality and Gender Diversity v Saskatchewan (Education), 2023 SKKB 204.
[ii] Cited from Jason Warick, Sask. premier to use notwithstanding clause to veto judge ruling on school pronoun policy | CBC News
[iii] See at paragraph 7.
[v] For more information on parental and children’s rights, see this article by Procido LLP lawyer Avneet Nehel: Privacy of a Child’s Healthcare: Do Parents Have a Right to Access a Child’s Healthcare Records? – Procido LLP | Legal + Advisory
[vi] Kahana, Tsvi. “The Notwithstanding Clause in Canada: The First Forty Years.” Osgoode Hall Law Journal 60.1 (2023): 1-71. https://digitalcommons.osgoode.yorku.ca/ohlj/vol60/iss1/1
[vii] Philip Rosen, The Section 33 Notwithstanding Provision of the Charter of Rights, Research Branch, Library of Parliament, Ottawa, 21 August 1987.