How Saskatchewan’s invocation of Section 33 sets a dangerous precedent for upholding (or infringing) Charter rights
When the Saskatchewan government introduced a provincial policy requiring parental consent to adopt students’ preferred first name and pronouns in late August, controversy quickly followed. Amidst a backdrop of fierce public interest debate between activists backing parental rights and children’s rights advocates, a Regina-based non-profit organization—UR Pride—brought a constitutional challenge against the policy, claiming that it infringed the rights rights of gender-diverse children under the Canadian Charter of Rights and Freedoms (the Charter). Justice Michael Megaw of the Regina Court of King’s Bench agreed to grant an injunction preventing the implementation of the policy until a decision was reached as to its constitutionality.
However, rather than continuing to engage with the legal process, the Saskatchewan government opted to step out of the reach of the judiciary entirely: Premier Scott Moe announced that the province would pass legislation that implemented the policy using Section 33(1) of the Charter: the notwithstanding clause.
Charter Rights and Section 33
As Canada was working towards patriating its Constitution in the 1980s, efforts to include an entrenched bill of rights were met with resistance; critics were concerned that the proposed Charter would grant the unelected judiciary excessive power over the legislature. A compromise was reached with the addition of Section 33—the notwithstanding clause.
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature … that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. …
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
Essentially, Section 33(1) functions as a temporary override that empowers the federal and provincial governments to pass laws infringing on certain Charter rights. In effect, the legislation is exempt from judicial review for up to five years (note that Section 33(4) enables the legislature to re-enact the legislation for another five-term period).
Section 33 does not apply to democratic rights. Indeed, the democratic process was championed to be a check for the power granted by the clause: the five-year limit means that if the electorate disagrees with the government’s use of the notwithstanding clause, the “court of public opinion” is able to hold the government accountable in the next election cycle. In theory, highly contested social and political matters would be settled at the polls.
This argument becomes more tenuous when the Charter rights at stake belong to a minority group, or to individuals who are unable to vote. Where protection of minority rights does not align with the “collective will” of the majority, the political risk in invoking the notwithstanding clause greatly diminishes. In those instances, Section 33 gives the legislature the final say as to which interest will be prioritized, without any avenue for review by the judiciary.
Saskatchewan’s Use of the Notwithstanding Clause
In granting UR Pride’s petition for an injunction, the Court found that the policy had the potential to cause “irreparable harm” to gender-diverse children. As the policy had yet to be implemented, the government’s position was that it was premature to hear the case on its merits, but the protection of “a marginalized and particularly vulnerable group in society” was held to be in the public interest.
For critics of the policy, the injunction was a hopeful first step. They argue that the policy threatens students’ privacy and risks exposing them to harmful environments in school or at home. Gender-diverse children face disproportionately high mental health risks, and research has demonstrated that support such as use of their chosen name reduces these risks.
The Saskatchewan government’s stance is that the policy is inclusive, as it protects parents’ rights to be included in their child’s education. Moe claimed to be responding to the requests of a majority of Canadians who supported informing parents and requiring their consent when their child wished to change the way they were identified.
Ultimately, neither side will be making constitutional arguments before the Court.
The government’s announcement that it intended to enact legislation using Section 33 was met with a great deal of criticism. While Section 33 can be used either before or after a court ruling on constitutionality has been issued, the clause was intended to be used only in exceptional circumstances “as a last resort after careful consideration” rather than as a means of skirting judicial review.
Federal Justice Minister Arif Virani issued a statement on X (formerly Twitter) condemning the Saskatchewan government’s decision to supersede the injunction, and stated that the court’s ruling “should have given them pause.”
Adam Goldenberg, the lead counsel on behalf of UR Pride, stated that it was “unconscionable” and “unforgivable” for the Saskatchewan government to pass legislation that it acknowledged would infringe childrens’ Charter rights.
Moe was also rebuked by the Canadian Bar Association for calling the Court’s decision an example of “judicial overreach.” CBA President John Stefaniuk emphasized the importance of the role of the judicial branch of government to democracy and highlighted that it is a legitimate exercise of the courts’ power to protect the rights and freedoms of Canadians.
Though some condemn the use of Section 33 to infringe minority rights, others note that where highly contentious, reasonable disagreement takes place, the notwithstanding clause is the appropriate avenue to pass legislation that interprets and rules on the competing rights at stake.
What to Expect From the New Bill
Bill 137, the Parental Bill of Rights, was introduced on October 12 in the Saskatchewan legislature by Minister of Education Jeremy Cockrill. When questioned, Cockrill asserted that the Government was justified in invoking the notwithstanding clause to protect parents’ rights.
The bill includes the following proposed amendments to the Education Act:
As the Saskatchewan Party holds a majority government, Bill 137 is ultimately set to pass at the end of the debate period.
Editor’s Note: Special thanks to Caitlin Salvino (3L), who provided background information about the use of the notwithstanding clause in Canada.
