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) welcomes today’s Court of Appeal for Saskatchewan decision that courts can declare that a law violates Charter rights when section 33 of the Charter – the “notwithstanding clause”- has been invoked
The decision comes from a constitutional challenge to the government of Saskatchewan’s use of the notwithstanding clause to enact Bill 137 – the “Parents’ Bill of Rights” – which puts trans youth at risk through a policy that forces teachers to out gender-diverse kids to their parents. The Saskatchewan government invoked the notwithstanding clause to pass Bill 137 in 2024 after the Saskatchewan Supreme Court found that the original 2023 policy subjected gender-diverse youth to irreparable harm
Today, the Court agreed with BCCLA’s argument that section 33 of the Charter does exactly as it is written and no more: it limits a court’s ability to strike down legislation and stop that legislation from operating, even if it’s unconstitutional. This does not remove the Courts’ ability to provide a declaration on the constitutionality of the legislation. This is particularly important given other decisions coming out of Quebec that courts cannot issue declarations when the notwithstanding clause is invoked.
BCCLA further argued that there are many circumstances where other remedies, like monetary damages or exclusion of certain evidence, are still available. It is essential that the court can issue declarations and other remedies to ensure accountability when governments choose to violate constitutional rights.
Ga Grant, BCCLA Litigation Staff Counsel, says:
“What’s happening in Saskatchewan demonstrates the terrifying shift in how the notwithstanding clause is being used in Canada. We went from seeing the clause barely being used for fear of a public backlash to a reality where governments are using it to target vulnerable minorities. This includes groups, like youth, who don’t have the right to vote for the elected officials violating their rights. This decision today tells politicians that they must stop using the notwithstanding clause as if it’s a hall pass to violate our rights without any accountability.”
Avnish Nanda, Pro Bono Counsel for BCCLA, says:
“Governments across Canada argued in the appeal that Charter rights disappear when section 33 is invoked, granting them the ability to pass unconstitutional laws that harm our communities without any ability to stop them. The Saskatchewan Court of Appeal said no. Charter rights continue to exist with the invocation of section 33 and courts still have a role in declaring when state action is constitutional. This decision today ensures that the public confidently knows when their government violates their constitutional rights so that they can exercise their voting rights accordingly. This is a major victory for civil liberties and the Rule of Law in Canada.”
BCCLA is represented by Avnish Nanda and Anna Lund of Nanda & Company.
