INTRODUCTION
On August 11, the Saskatchewan Court of Appeal (the “Court”) in Saskatchewan (Minister of Education) v. UR Pride Centre for Sexuality and Gender Diversity (the “Decision”), concluded that the pre-emptive use of the notwithstanding clause, i.e., before a court has had an opportunity to consider the constitutionality of the legislation, does not prevent a court from issuing a declaratory judgment on the legislation’s consistency with the rights and freedoms covered by the notwithstanding clause.
The Government of Saskatchewan appealed the Decision to the Supreme Court and asked that it be heard alongside the appeal in World Sikh Organization of Canada v. Attorney General of Québec, a case concerning the constitutionality of Bill 21. In that case, the Québec Court of Appeal concluded that the courts have no jurisdiction to rule on the law’s compliance with the rights protected by the Canadian Charter of Rights and Freedoms (the “Charter”) when the notwithstanding clause has been invoked. On November 6, the Supreme Court granted leave to appeal but decided that this case would be heard separately from the Bill 21 case.
BACKGROUND
In 2023, Saskatchewan passed An Act to amend The Education Act, 1995 respecting parental rights (the “2023 Act”), which requires teachers and school staff to obtain the consent of the parent or legal guardian of a student under the age of 16 before using “the pupil’s new gender-related preferred name or gender identity”. This requirement is set out in section 197.4 of the 2023 Act. The third paragraph of section 197.4 provides that this section applies notwithstanding sections 2, 7, and 15 of the Charter.
Section 197.4 replaces a Ministry of Education policy adopted on August 22, 2023, the implementation of which was stayed pending a hearing and ruling on its constitutional validity.
On August 31, 2023, UR Pride Centre for Sexuality and Gender Diversity (“UR Pride”) instituted an action alleging that the policy violated sections 7 and 15(1) of the Charter. Following the adoption of section 197.4 and the suspension of the policy, the Court granted UR Pride leave to amend its originating application to include a request for a declaration that section 197.4 infringes the rights of gender diverse students protected by sections 7, 12, and 15(1) of the Charter, and that none of these limits are reasonable and demonstrably justifiable within the meaning of section 1 of the Charter.
UR Pride also argued that section 197.4 violates section 12 of the Charter regarding cruel and unusual punishment and thus should be declared invalid.
The Government of Saskatchewan appealed the trial judge’s decision. It asked the Court of Appeal to declare that the Court of King’s Bench did not have jurisdiction to determine whether section 197.4 of the 2023 Act limits the rights of any person under sections 7 and 15 of the Charter, given that the notwithstanding clause had been invoked.
ISSUES ON APPEAL
On appeal, the Court was asked to rule on three issues, one of which concerned the scope of the notwithstanding provision contained in section 197.4 of the 2023 Act. Specifically, the Court considered whether the pre-emptive use of the notwithstanding clause should have the effect of ousting the trial court’s jurisdiction to determine whether section 197.4 infringes the rights protected by sections 7 and 15 of the Charter. In the interest of brevity and because it is central to the decision, we will limit our discussion to this issue.
MAJORITY DECISION
The majority of the Court rejected the Saskatchewan government’s position that the use of the notwithstanding clause, which allows legislatures to override certain Charter rights (here, sections 2, 7, and 15), also prevents a court from ruling on whether a legislative act limits rights or freedoms protected by the Charter. The Court concluded that the Court of King’s Bench has jurisdiction to issue a declaration as to whether or not the 2023 Act limits anyone’s rights under sections 7 and 15 of the Charter. The decision to issue such a declaration remains at the trial judge’s discretion.
Contrary to the Saskatchewan government's arguments, the majority opinion held that the Supreme Court has yet to rule on whether courts still have a role in determining the constitutional validity of legislation once the notwithstanding clause has been invoked.
The majority also took the view that invoking the notwithstanding clause does not have the effect of modifying the content of the Charter rights covered by the override provision, further supporting its conclusion.
According to the majority, the sole consequence of invoking the notwithstanding clause is that the legislative act is protected, for as long as the override provision is in force, from the effects of section 52(1) of the Constitution Act, 1982, which provides that the “Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”
Relying in particular on the Vriend decision, the majority of the Court affirmed that the adoption of the Charter had transformed the Canadian system from one of parliamentary supremacy to one of constitutional supremacy, in which the courts are trustees of the rights protected by the Charter.
The majority considered that accepting the Saskatchewan government’s argument—that the invocation of the notwithstanding clause prevents the courts from ruling on whether a legislative act limits the rights protected by the Charter—would effectively destroy the important dialogue that has existed between the legislative and judicial branches since the Charter’s adoption.
In the majority’s view, this concerns the role that the courts play in the proper functioning of the system, including the superior courts, whose jurisdiction is protected under section 96 of the Constitution Act, 1867. This role includes the authority to issue a declaration that a legislative act limits rights protected by the Charter, even when that act is protected from a declaration of inoperability.
DISSENT
Justice Caldwell, dissenting, adopted the reasoning of the Québec Court of Appeal in World Sikh Organization of Canada v. Attorney General of Québec and concluded that the pre-emptive use of the notwithstanding clause ousts the courts’ jurisdiction to rule on any limits on the rights subject to it. When Parliament or a legislature invokes the notwithstanding clause, a state of “parliamentary sovereignty” is restored for as long as the override provision remains in force.
Relying on Toronto (City) v. Ontario (Attorney General), Justice Caldwell reiterated that constitutional principles such as the rule of law and democracy cannot be used to neutralize the effect of the notwithstanding clause. In situations where the notwithstanding clause has already been invoked, the power of the courts under section 96 of the Constitution Act, 1867 is limited to determining whether the substantive conditions for its use, as set out in Ford, have been met.
COMMENTARY
This Decision is particularly interesting given that the Supreme Court will hear the appeal in World Sikh Organization of Canada v. Attorney General of Québec from March 23, 2026 to March 27, 2026. In that case, the Québec Court of Appeal reached the opposite conclusion. It determined that the pre-emptive use of the notwithstanding clause prevents a court from ruling on whether a legislative act limits constitutionally protected rights.
The Decision also highlights the role of the courts in Canada’s constitutional system, particularly with regard to the relationship between the notwithstanding clause and section 96 of the Constitution Act, 1867, which protects the inherent jurisdiction of the superior courts.
Finally, the appeal of the Decision to the Supreme Court could lead to a re-examination of the arguments invoked by the majority regarding the unwritten constitutional principles of democracy and the rule of law, bearing in mind the lessons of Toronto (City) v. Ontario (Attorney General).