July 24, 2024 – The Women’s Legal Education and Action Fund (LEAF) has been granted leave to intervene at the Court of Appeal for Saskatchewan in Government of Saskatchewan v. UR Pride, a case about what courts can and cannot say about a law once the notwithstanding clause has been invoked.
In February, a judge of the Saskatchewan Court of King’s Bench decided that even though the provincial government used the notwithstanding clause to protect its pronoun law from being found unconstitutional, a court can still declare that the law violates Charter rights.
Because the notwithstanding clause permits rights-infringing laws to remain in effect, a simple declaration of violation of rights wouldn’t be enough to strike down the law. Even so, the judge found that courts are still within their rights to make that declaration. The government is now appealing this decision to the Court of Appeal for Saskatchewan.
In this case, the notwithstanding clause is shielding Saskatchewan’s pronoun law, which requires parental consent for school personnel to be permitted to refer to a trans, non-binary, or gender-diverse student under the age of 16 by their proper name and pronouns.
The UR Pride Centre for Sexuality and Gender Diversity is challenging the law, claiming that it violates trans and non-binary students’ rights to security of the person and equality, as well as their right not to be subjected to cruel and unusual treatment. LEAF is also intervening in this case, which is on hold until the Court of Appeal decides whether courts are permitted to issue declarations once the notwithstanding clause has been invoked.
In its intervention on the notwithstanding clause, LEAF will focus on the importance of substantive equality when deciding whether courts can make a declaration of rights compliance. This means paying attention to who is being impacted by a law, and how it will affect these groups to have the courts say nothing about the Charter rights violations occurring as a result of the law.
“In this case, the community impacted is one of the most marginalized in our society: transgender and non-binary children and youth,” said Cee Strauss, Senior Staff Lawyer at LEAF. “In the context of the rising tide of anti-trans hatred that we are seeing both among some political leaders and segments of the broader public, a Court’s declaration that this law violates the rights and freedoms of trans, non-binary, and gender-diverse youth will validate their experiences of discrimination.”
The question of what courts can do in the face of the notwithstanding clause being invoked is a relatively new one, as provincial governments have only recently begun to use this rights-limiting “nuclear option” with such frequency.
The intended counterweight to the immense power of the notwithstanding clause is the ballot box – the idea being that if the public disapproves of the government’s use of the clause, it can vote that government out at the next election. But what if the people being most harmed by the law cannot vote? And how will other members of the public be able to make an informed decision without a rigorous analysis of the law’s impact on rights?
“A declaration could also make the significant harms that these youth are suffering visible to the general public, motivating more of the public to hold the government accountable come election time,” said Strauss. “While children and youth who are 16 and under do not have access to the ballot box, they do have access to the courts. We can’t remove the only justice to which they have access.”
A date for the hearing has not yet been set.
LEAF is grateful to Morgan Camley and Kay Scorer of Dentons Canada LLP, counsel to LEAF in this case. LEAF is also grateful to Barton Soroka of Gerrand Rath Johnson LLP, agent for LEAF in this case.
LEAF’s interventions are guided, informed, and supported by a case committee with expertise in the relevant issues. We are grateful to this intervention’s case committee members (in alphabetical order): Florence Ashley, Jamie Cameron, Jennifer Koshan, Robert Leckey, Samuel Singer, and Xue Xu.
For media inquiries, please contact:
Cee Strauss
Senior Staff Lawyer, LEAF
514-586-5042
[email protected]
About the Women’s Legal Education and Action Fund (LEAF)
The Women’s Legal Education and Action Fund (LEAF) is a national not-for-profit that works to advance the equality rights of women, girls, trans, and non-binary people in Canada through litigation, law reform, and public legal education. Since 1985, LEAF has intervened in more than 130 cases that have helped shape the Canadian Charter of Rights and Freedoms. To find out more, visit www.leaf.ca.
