CCLA Granted Leave to Intervene in Saskatchewan’s Pronoun Law and the Notwithstanding Clause at the Supreme Court

L'Association canadienne des libertés civiles (ACLC) a reçu l'autorisation d'intervenir dans l'affaire des Saskatchewan (Ministre de l'éducation) c. UR Pride Centre for Sexuality and Gender Diversity, a landmark case before the Supreme Court of Canada that will determine whether courts retain jurisdiction to declare chartes rights violations when a government overrides fundamental rights and freedoms through the use of the notwithstanding clause.

The case originates from Saskatchewan’s 2023 policy requiring parental consent before school staff may use a student under the age of 16’s preferred name or pronouns at school. UR Pride Centre for Sexuality and Gender Diversity challenged the law as a violation of students’ chartes rights. In response, the Government of Saskatchewan invoked the notwithstanding clause and argued that doing so not only shielded the law from being struck down, but also stripped courts of the jurisdiction to even assess whether their law violates Charter rights. The Saskatchewan Court of Appeal rejected that position, affirming that courts may still make declarations of Charter violations. The Government of Saskatchewan has now appealed that ruling to the Supreme Court of Canada.

CCLA will intervene in this case to provide a principled framework for understanding the proper scope and limits of the notwithstanding clause in Canada’s constitutional order. CCLA will argue that section 33 does not silence the courts on questions of constitutional rights. While the notwithstanding clause may permit governments to temporarily override certain chartes protections, it does not extinguish the judiciary’s fundamental constitutional role in identifying and declaring rights violations. Resolving this question is of profound importance for both the gender diverse youth directly affected by Saskatchewan’s law, and to all Canadians who deserve to know when their government has violated and overridden their rights.

“At a time when we are seeing section 33 invoked with increasing frequency to target the rights of minorities, it is more important than ever that we have clear guidance from the courts,” said Aaden Pearson, Trans Rights Legal Fellow and Staff Lawyer at the CCLA. “A principled framework for section 33 is not an attack on legislative sovereignty, it is the minimum required to keep governments accountable.”

CCLA is grateful for the outstanding pro bono representation of Dan Leblanc and Leif Jensen of Leblanc Jensen.