The Court is in Session: Upholding the Role of the Judiciary Under Section 33

In an ideal world, rights that are recognized by law are rights that are enforced and secured. Unfortunately, this is not the case.

Transgender and non-binary communities are experiencing a sustained erosion of their rights—from the denial of gender affirming healthcare to exclusion from sports and even outright refusals to being referred to by their name and pronouns. The rights of transgender and non-binary people remain the subject of political debate in legislative assemblies and in elected officials’ media appearances. Political divisions are too often drawn along the lines of minority rights. Whether it be immigrants and newcomers, black and Indigenous communities, queer people, women, or people with disabilities, these communities are unfortunately targeted by policy and legislative changes depending on the opinions of the government of the day.

Time and time again, when governments have invalidated the experiences of marginalized communities and denied them equality, these communities have sought and found justice in the courts. As guardians of the Charter, courts have long assisted in confirming fundamentally protected rights under the Charter. From uncertainty as to whether a woman is a “person”¹, pregnancy discrimination², workplace sexual harassment³, the right for LGBTQ+ couples to marry and adopt children⁴, and abortion rights⁵, courts have played a vital and dignity-enhancing role for members of a community whose rights are infringed.

Now, governments across Canada are attempting to use section 33 of the Charter (the “Notwithstanding Clause”) to undermine the fundamental rights protected under the Charter and entirely foreclose access to the courts. When invoked, the Notwithstanding Clause allows the government to pass a law that may directly breach fundamentally protected Charter rights and ensures that this law operates for a period of five years, notwithstanding these breaches.

In August 2023, the Saskatchewan government adopted a policy called “Use of Preferred First Name and Pronouns by Students” (the “Policy”). The Policy required parental consent for school personnel to refer to students who “wish to change their pronouns and/or preferred name to align with their gender identity” by their chosen name if they are under 16 years old.

Following a court ordered injunction enjoining the Saskatchewan government from implementing and enforcing the Policy, the Saskatchewan government revoked the Policy and then enshrined the contents of the Policy into law through The Education (Parents’ Bill of Rights) Amendment Act, 2023, c 46. In doing so, the Saskatchewan government also invoked section 33 of the Charter to immunize the law from being struck down by a court as unconstitutional. The Government’s position was that invocation of the Notwithstanding Clause completely nullified the jurisdiction of a court to issue a declaration that an Act or provision unreasonably limits a specific Charter right or freedom.  In short, when the courts blocked the policy, the Saskatchewan government made the policy into law and used the Notwithstanding Clause so it could not be stopped by Charter rights challenges.

In a landmark decision issued in August 2025, the Saskatchewan Court of Appeal released a 4-1 majority decision (Saskatchewan (Minister of Education) v. UR Pride Centre for Sexuality and Gender Diversity, 2025 SKCA 74, “UR Pride”) confirming that courts do retain discretion to grant declaratory relief even where it cannot strike down a law pursuant to invocation of the Notwithstanding Clause. The Court confirmed that invocation of the Notwithstanding Clause does not immunize a government’s actions from judicial scrutiny. It only serves to limit a court’s ability to make an order impacting the operation of that action.

Grounding the Court’s determination that declaratory relief remains available in the face of the Notwithstanding Clause was the Court’s confirmation that “[t]he Charter is not written in disappearing ink that comes and goes every five years according to whether Parliament or a legislature has invoked s. 33. To the contrary, both the language of s. 33 and the operation of the five-year sunset provision demand that the content of the rights themselves remains unchanged.”⁶ As a result, the meaning of the Charter rights does not change when the Notwithstanding Clause is invoked, but it insulates the statute or law in question from the application of those rights.

On the basis that the contents of the rights guaranteed by the Charter are not modified, the Court confirmed “there exists an appropriate legal standard against which a court is able to determine whether the operation of legislation that enjoys the benefit of a s. 33 declaration unreasonably limits those rights. The legal criteria that could be brought to bear in a judicial review are the same, whether a s. 33 declaration has been made or not.”⁷

As argued by the Women’s Legal Education and Action Fund (LEAF), an intervenor in the appeal, interpreting the Notwithstanding Clause in a manner that ousts the role of the court entirely would strip the Charter of its fundamental purpose as a human rights instrument. Judicial review in these cases brings the discrimination into the light for those experiencing it and makes the harm visible to all of society. As the Court of Appeal confirms: “[t]he proper functioning of our constitutional democracy is enhanced, not impaired, if Canada’s citizens, and legislators alike, are made aware when legislation that is allowed to operate by virtue of s. 33 does so in a way that limits Charter rights and freedoms.”⁸

This decision is a significant reminder to all governments who seek to suspend the fundamental rights and freedoms of communities who already face severe marginalization due to the politicization of their very existence: access to the courts remains. 

1. Edwards v. Canada (Attorney General), 1929 CanLII 438, [1929] 1 DLR 98.
2. Brooks v. Canada Safeway Ltd., [1989] 1 SCR 1219.
3. Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252.
4. Reference re Same-Sex Marriage, [2004] 3 SCR 698; and, Vriend v. Alberta, [1998] 1 SCR 493.
5. R v. Morgentaler, [1988] 1 SCR 30.
6. UR Pride, para 85.
7. UR Pride, para 122.
8. UR Pride, para 124.