Saskatchewan and the notwithstanding clause explained

A provincial government is again threatening to invoke the Constitution's notwithstanding clause — this time over an education policy change that a court has tried to pause.

Last month, the government of Saskatchewan announced that all students under 16 must have parental consent to change their names or pronouns.

This week, a Regina judge ruled in favour of UR Pride, an LGBTQ advocacy group, and granted an injunction temporarily pausing the policy until its constitutionality can be tested in court.

"Our government is extremely dismayed by the judicial overreach of the court blocking implementation of the Parental Inclusion and Consent policy — a policy which has the strong support of a majority of Saskatchewan residents, in particular Saskatchewan parents," Saskatchewan Premier Scott Moe said in a written statement issued Thursday afternoon.

"The default position should never be to keep a child's information from their parents."

On Friday, Moe repeated his promise to recall the province's legislature on October 10 to pass legislation ensuring the policy is implemented.

"We are going to go in at the earliest opportunity, which is in about a week. We're going to introduce and ultimately pass the legislation, we're going to notwithstand that legislation ... to provide clarity for teachers in our classrooms but most importantly, to provide clarity for families," Moe said in Saskatoon Friday.

This decision to invoke the notwithstanding clause follows in the footsteps of the Quebec and Ontario provincial governments, both of which have invoked the clause in recent years.

What is the notwithstanding clause?

The notwithstanding clause, or Section 33 of the Charter of Rights and Freedoms, gives parliaments in Canada the power to override certain portions of the charter for five-year terms when passing legislation.

The clause can only override certain sections of the charter — section 2 and sections 7 to 15, which deal with fundamental freedoms, legal rights and equality rights. It can't be used to override democratic rights. 

Once invoked, the clause prevents any judicial review of the legislation in question. After five years, the clause ceases to have any effect unless it is re-enacted.

Why do we have it?

In the early 1980s, the Liberal government of Prime Minister Pierre Trudeau wanted Canada to have its own Constitution with an entrenched bill of rights. But negotiations stalled over concerns that the proposed Charter of Rights would be too powerful.

"There were a number of people, including several provincial premiers at the time, who were concerned that that would upset the balance of power between the federal and provincial governments and would put too much power in the hands of the courts," Carissima Mathen, professor of law at the University of Ottawa, told CBC News in November.

"A number of premiers argued that there should be ... a sort of escape hatch from certain rights in the charter."

To ensure that federal and provincial parliaments maintained supremacy over the courts, the clause was included in the charter, accompanied by certain expectations regarding how it would be used.

"It was intended at that time to be used in the most unusual of circumstances," Wally Oppal, a former B.C. attorney general and justice of both the provincial Supreme Court and the Court of Appeal, said last fall.

"The reason I say that is because you are violating the rights of people, violating the terms of the supreme law of the land. And if you're going to do that, then it should be done only in most unusual and extenuating circumstances."

How have other provinces used it?

The government of Ontario Premier Doug Ford first threatened to use the clause in 2018 to uphold his plan to reduce the number of seats on Toronto City Council, before the courts sided with his government on the cut.

Then in June 2021, Premier Ford invoked the clause for the first time in the province's history to limit third-party election financing.

The Ford government invoked the clause in a more controversial way last fall when it used it to force through back-to-work legislation imposing a four-year deal on Ontario's 55,000 education assistants, early childhood educators, custodians and administrative assistants.

With unions across the province threatening a united, provincewide general strike following Ford's move, the premier was forced to abandon both the legislation and his government's threat to use the notwithstanding clause. 

In Quebec, Premier Francois Legault's government pre-emptively invoked the notwithstanding clause last year to support Bill 21 — which bans the wearing of religious symbols by workers in the public sector — and Bill 96, the government's new language law.

How has the federal government responded?

In the cases of both Quebec and Saskatchewan, the federal government has consistently criticized the use of the clause before the constitutionality of policies or laws can be tested in court.

In a statement posted on social media on Thursday, federal Justice Minister Arif Virani said Moe should have thought twice before threatening to invoke the clause.

"A judge agreed that what the government is doing may cause irreparable harm to some of its most vulnerable young people," he said. "Just as important, they are acting before a court has had the opportunity to review their proposed policy for its constitutionality.

"Violating individual rights should not be a decision taken lightly."