Judicial Review Notwithstanding the Charter’s “Notwithstanding” Clause? Yes, Says Saskatchewan’s Court of Appeal

On August 11, 2025, the Court of Appeal for Saskatchewan (SKCA) released a major decision about section 33 of the Canadian Charter of Rights and Freedoms (Charter), which is colloquially referred to as the “notwithstanding” clause. Section 33 states that Parliament or a provincial legislature may expressly declare that a statute shall operate “notwithstanding” certain Charter rights.

In Saskatchewan (Minister of Education) v. UR Pride Centre for Sexuality and Gender Diversity (UR Pride), the SKCA held that, while section 33 allows a law to operate even if it infringes certain Charter rights, superior courts nonetheless retain jurisdiction to declare that the law infringes the Charter. The SKCA emphasized that section 33 gives the last word to legislatures, but not the only word. Courts still play an important role in fostering the democratic dialogue about laws that infringe Charter rights.

Next year, the Supreme Court of Canada (SCC) will finally determine the proper interpretation of section 33 in an appeal arising out of Quebec. The SKCA’s decision in UR Pride will figure prominently into the SCC’s consideration of this issue.

Background and the SKCA’s Decision

The litigation in UR Pride arose out of amendments to Saskatchewan’s Education Act that require the consent of a parent or guardian before teachers or other school employees can respect a student’s gender identity by using the student’s preferred name and/or pronouns. The Government of Saskatchewan pre-emptively invoked section 33 of the Charter to declare that the amendments “operate notwithstanding sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms.”

A Saskatchewan public-interest group challenged the constitutionality of the amendments. In response, the Saskatchewan Government argued that the Legislature’s pre-emptive invocation of section 33 nullified the courts’ jurisdiction to determine whether the amendments are constitutional — an argument that the Court of King’s Bench rejected.

On appeal, the majority of the SKCA held that section 33 does not oust the Court’s jurisdiction to grant a declaration that the amendments violate the Charter. The SKCA held that the wording of section 33 does not modify the content of Charter rights, or what constitutes a reasonable limit on those rights; it merely permits the legislation to operate notwithstanding the named Charter rights and insulates that legislation from their application. Nothing in the language of section 33 ousts courts’ inherent jurisdiction to grant declaratory relief.

In considering the purpose of section 33, the SKCA held that the notwithstanding clause encourages “continual and repeated” democratic accountability. Within this process, the court’s role is to interpret the rights and freedoms guaranteed in the Charter. The SKCA emphasized that institutional dialogue among the branches of government and an “exchange of views” is vital to the democratic process. Judicial review, including declaratory relief, is part of that process.

Although section 33 prevents courts from declaring a law to be of no force and effect because it is inconsistent with the Charter, that does not mean that the legislation at issue does not infringe Charter rights. The SKCA reasoned that declaratory relief enhances the functioning of our constitutional democracy by making citizens and legislators alike aware of when legislation limits Charter rights and freedoms, even if section 33 is invoked.

The SCC Prepares to Finally Decide the Issue

Next year, the SCC will hear the appeal from a decision of the Quebec Court of Appeal in Organisation mondiale sikhe du Canada c. Procureur général du Québec (Hak Appeal). In that case, the Quebec Court of Appeal held that section 33 entirely shields a law from any form of judicial review — a conclusion opposite to the SKCA’s in UR Pride.

A record 68 interveners will participate in the Hak Appeal. As provincial governments across Canada increasingly use or threaten to use the notwithstanding clause, the SCC’s guidance on its interpretation will be particularly important.

Blakes acted for the intervener, The Advocates’ Society, in UR Pride. 

For more information, please contact the authors or any other member of our Litigation & Dispute Resolution group.