This case was about what courts can and can’t say about a law once the notwithstanding clause has been invoked. 

LEAF intervened before the Court of Appeal for Saskatchewan. 

FACTS

In February 2024, 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 appealed 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 also intervened in that 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.  

ARGUMENTS

In its intervention on the notwithstanding clause, LEAF focused 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.  

OUTCOME

The Court of Appeal for Saskatchewan heard arguments in this case on September 23 and 24.

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.