On September 23, the Court of King’s Bench in Regina will hear the Government of Saskatchewan’s appeal in a case (Saskatchewan [Minister of Education] v UR Pride Centre for Sexuality and Gender Diversity) relating to the recent Parents’ Bill of Rights. Despite the relative quietness in the media about this upcoming case, it will likely have considerable implications for Canadian law, with specific reference to the notwithstanding clause.
The case’s implications are far-reaching
While the case will also have repercussions for the future of trans rights in Canada (given that the nature of the Parents’ Bill of Rights is anti-trans), the court will be forced to answer two groundbreaking questions whose implications extend far beyond this area. First, whether judicial review can take place despite notwithstanding clause protection; and, if so, whether courts can administer remedies for the rights infringements caused by legislation protected by Section 33 of the Charter. It is likely that, whatever the King’s Bench Court argues, it will be appealed to higher courts — possibly up to the Supreme Court of Canada, given its significance. Whether the Court of King’s Bench and appellant courts side with the provincial government or UR Pride, a landmark precedent for the future of Charter law will likely be set, as it will fundamentally change the way we understand, use, and argue about the notwithstanding clause.
The notwithstanding clause and its discontents
The very existence of the notwithstanding clause has caused decades of debate among Canadians. Even when it is not being used, disagreements over its legitimacy abound. Some argue that it is necessary to protect the principle of parliamentary supremacy and stop the formation of ‘activist courts.’ Others argue that it places unjust limits on rights and freedoms. Still, others take a non-partisan approach, pointing out that whatever its merits and flaws, the notwithstanding clause represented a compromise between the provinces and the federal government at the time of repatriation of the Constitution, without which the Charter would never have come to pass.
The debate goes further (especially in Québec) when the notwithstanding clause is actually invoked. While the federal government has never invoked the clause, the provinces have on numerous occasions. Ontario and Saskatchewan are both guilty of having used it to force back-to-work legislation onto public sector workers. Alberta tried to use the clause to stall the legalization of same-sex marriage in 2000. Those of us on the Canadian left generally oppose the clause because it enables such reactionary measures. Most recently, Saskatchewan has passed its amendments to the Education Act with a pre-emptive use of the notwithstanding clause. Preemptive usages are always cause for a re-ignition of this never-ending debate; many argue that in using Section 33 before judicial review is initiated on the legislation in question, legislatures are admitting that they intend to limit Charter rights.
The legislation in question here goes by many names, including the Parents’ Bill of Rights and Bill 137. The great controversy of the Bill lies in its provisions on preferred name usage in Saskatchewan public schools. It states that students who wish to be addressed in school by a different name or set of pronouns than their legal ones need to provide parental consent. The Bill is very careful not to use terms such as ‘trans,’ despite the fact that transgender students are the obvious targets of the legislation. Much has been written about why this Bill is harmful to Saskatchewan students.
It gives transgender students in Saskatchewan two options: outing themselves to their parents (which can be dangerous for trans and queer youth in unsupportive households), or being deadnamed at school. It became quite obvious while the Legislative Assembly of Saskatchewan debated the policy that any such law would infringe upon the Section 15 Equality rights of trans students. As we will see, groups will also argue that the Bill limits Section 7 rights to life, liberty, and security of the person.
The pronoun law’s history and controversies
Before the Bill even passed the Saskatchewan legislature in October 2023, the University of Regina Pride Centre launched a legal challenge against the policy, resulting in an injunction from Justice Michael Megaw on the basis of the policy’s potential to violate Charter rights. In response, the Moe government stated that it would use the notwithstanding clause to pass the Bill and (to their minds) protect it from further judicial review.
The Scott Moe government, therefore, believed it had ended the debate by preemptively using the notwithstanding clause. While an injunction had been granted against the policy, the judicial review as such was not able to strike down the Bill because it had not yet been passed in the legislature; therefore, the preemptive term is reasonably debatable. Regardless, groups like the UR Pride Centre did not accept this as the end of the conversation. In February 2024, Justice Megaw “filed a decision allowing for an amendment to legal action brought forward by the UR Pride Centre for Sexuality and Diversity.” In other words, the legal challenge to the previously existing policy of the Saskatchewan Party was amended into a legal challenge to the now-passed Parents’ Bill of Rights. The Government of Saskatchewan was (perhaps justifiably) confused about Justice Megaw’s decision to allow the legal challenge to proceed. After all, doesn’t the notwithstanding clause protect legislation from judicial review?
In fact, this has been a growing question among Canada’s legal experts. The precise wording of Section 33 does not mention whether it protects legislation from judicial review, even if this is the accepted belief. Rather, Section 33 protects laws from being struck down by courts under Section 52(1) of the Constitution Act, 1982 when it is found that they violate Charter rights. Premier Scott Moe stated in September 2023 that he was considering using the notwithstanding clause to stop the court challenge that had been initiated by UR Pride Centre. Similarly, Québec Premier François Legault previously stated that his government would use Section 33 to “avoid lengthy judicial battles” with respect to Bill 21. Clearly, both these Premiers believed that the notwithstanding clause does not just protect their laws from being overturned, but silences the judicial system as well. But the presumptions of Premiers Moe and Legault are being challenged by an increasing number of legal scholars, as well as groups such as Amnesty International Canada.
New developments in legally challenging the clause
In a piece for Policy Options, Grégoire Webber, Eric Mendelsohn, and Robert Leckey argued that “an individual or group may challenge a law shielded by section 33 in court and that a court may determine whether the law violates Charter rights.” Leonid Sirota then concurred with Webber, Mendelsohn, and Leckey, stating that Section 33 does not protect legislation from judicial review full stop, but “only the consequences of such review.” Sirota further argues that Section 33 does not bar the application of Section 24(1) of the Constitution Act, which provides that individuals can seek remedies from courts when their Charter rights have been infringed by government legislation. As scholars are increasingly arguing, while the notwithstanding clause precludes usual remedies such as striking down, reading down, etc., it does not stop courts from declaring that a law violates Charter rights (which could be a remedy in and of itself). This, of course, would only work as a remedy in cases where the notwithstanding clause was used preemptively.
Robert Leckey separately argued that another remedy for Charter-infringing laws protected by Section 33 might include monetary compensation to harmed individuals. He writes, “courts haven’t often ordered the government to pay compensation for breach of someone’s Charter rights, but the Supreme Court of Canada has unquestionably opened the door to doing so.”
There have been numerous cases in which courts (including the Supreme Court) have awarded rights claimants financial compensation as a remedy, but the question here is whether such a remedy can be applied to legislation protected by Section 33. Leckey gives his opinion: “a government cannot use the notwithstanding clause to shield a law from the remedies clause…I see no reason for judges to give governments greater immunity from the Charter than its drafters did by developing such a rule themselves.” The argument is essentially that Section 33 limits Charter Sections 2 and 7-15, but not Section 24 (the remedies clause).
Will the courts side with trans rights?
The big question, then, is whether the courts will agree with the interpretation of Webber, Mendelsohn, Leckey, and Sirota. Justice Megaw argued that “a court continues to have jurisdiction in the face of the government’s use of section 33, but then ‘determines not to exercise its discretion to grant the declaratory relief requested.’” The Government of Saskatchewan appealed Justice Megaw’s decision to let the legal challenge to the Parents’ Bill of Rights proceed on the basis that the notwithstanding clause precludes legal challenges altogether. After this discrepancy is settled, the next question for the courts will be whether they agree that they can dispense remedies in Section 33 Charter cases – and, if so, what kind of remedies? Clearly, huge precedents will be set in Saskatchewan in the coming months, although whatever the Saskatchewan court decides will likely be appealed to higher courts.
While the provincial government intends to argue that the notwithstanding clause means the judicial review cannot proceed, interveners (including Amnesty International Canada) will adopt the arguments of scholars like Sirota and Leckey. On their website, they write that they believe the notwithstanding clause “is not a license to discriminate against children and youth and avoid the scrutiny of the courts.” Essentially, AIC will argue (like Sirota and Leckey) that the notwithstanding clause prevents a law from being struck down, but it does not necessarily protect against judicial review or remedies. Should the court agree with this argument, it will fundamentally change the way the notwithstanding clause is used in Canada by severely limiting its scope.
Of course, such a decision would lead to outrage and celebration alike. In September, whether the Court of King’s Bench in Regina sides with the provincial government or UR Pride Centre, a massive precedent will be set, with implications for the future of Section 33 and rights protection across all of Canada.
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