FOR IMMEDIATE RELEASE

Regina, SK / Treaty 4 and Treaty 6 Territories — the traditional lands of the nêhiyawak, Anihšināpēk, Dakota, Lakota, Nakoda peoples, and Michif/Métis Nations – The BC Civil Liberties Association (BCCLA) filed its arguments today before the Saskatchewan Court of Appeal in the constitutional challenge to the government of Saskatchewan’s use of the Charter‘s “notwithstanding clause” to enact Bill 137.

Bill 137 requires gender-diverse youth to either remain closeted at school or choose to be outed by the school to their parents, as a result of a requirement that the school obtain parental consent to call young people by the correct name or pronouns. The Saskatchewan Supreme Court has held that this policy subjects gender-diverse youth to irreparable harm. The Saskatchewan government argues that their invocation of the notwithstanding clause found at section 33 of the Charter means the courts are completely unable to review Bill 137.

The BCCLA argues that section 33 of the Charter does not strip courts of their ability to declare legislation unconstitutional or to order other remedies that may be available to individuals who have been harmed. Section 33 functions exactly as it is written and no further: it limits a court’s ability to strike down legislation and stop that legislation from operating, even if it is unconstitutional. The Court’s ability to issue declarations and other remedies is crucial in holding the government accountable when it chooses to violate constitutional rights. Court declarations ensure the public is informed when their government commits constitutional violations.

Politicians are pretending that the notwithstanding clause is a hall pass to violate peoples’ rights without accountability. That’s not how it works. Canadian governments and politicians are increasingly threatening to or invoking the notwithstanding clause to pass legislation that they know violates equality rights. This is extremely concerning, particularly when it targets vulnerable minorities like trans and gender-diverse youth. It’s time our courts finally and fully demonstrate the limits that exist on the notwithstanding clause.

–Ga Grant, BCCLA Litigation Staff Counsel

This appeal represents an opportunity to clarify whether the notwithstanding clause suspends the basic rights and liberties of Canadians. A reading of the clause that accurately captures its text, history, and context demonstrates it does not; people can still access courts, and even obtain relief against the government when it breaches their constitutional rights. Charter rights are not optional in this country and the state must respect them or face legal consequences

-Avnish Nanda, pro bono counsel for the BCCLA

The BCCLA is represented by Avnish Nanda and Anna Lund of Nanda & Company.

The BCCLA’s factum is available here.