This case stems from a constitutional challenge brought by the UR Pride Centre for Sexuality and Gender Diversity at the University of Regina. They are challenging the Saskatchewan government’s Bill 137 on the basis that it violates the Charter rights of trans and gender-diverse youth–s. 7 (life, liberty, and security of the person) and s. 15 equality rights of trans and gender-diverse youth in schools. Bill 137 requires gender-diverse youth to either remain closeted at school or choose to be outed by the school to their parents because of a requirement that the school obtain parental consent to call young people by the correct name or pronouns.
At the preliminary stage, the Saskatchewan Supreme Court found that this policy subjects gender-diverse youth to irreparable harm and ordered that Saskatchewan not pass Bill 137 until the full hearing of the constitutional challenge.
Instead, the Saskatchewan government invoked s. 33 of the Charter, known as the notwithstanding clause, and passed Bill 137. This clause allows legislation to operate, even if it may violate fundamental rights in the Charter. Saskatchewan then applied for UR Pride’s challenge to be dismissed, saying that the courts no longer have any role or jurisdiction. The Saskatchewan Court of King’s Bench disagreed and refused to dismiss the case. It found that the notwithstanding clause does not mean that courts cannot still issue a declaration as to whether Charter rights are violated. Saskatchewan has appealed the decision.
The BCCLA is intervening in this appeal to ensure that the notwithstanding clause is correctly interpreted and to ensure government accountability when the clause is invoked. At a time when we are seeing an alarming increase in politicians and governments threatening to invoke or invoking the notwithstanding clause, this is more important than ever.
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. A reading of the clause that accurately captures its text, history, and context demonstrates that people can still access courts, and even obtain relief against the government when it breaches their constitutional rights. 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. This is crucial to the democratic process and transparency in government.
