What UR Pride Tells Us About Fundamental Rights and Freedoms in Canada

This article was entered into the 2024 SOGIC Student Article Competition, and was chosen as the winning article.

INTRODUCTION

In Reference re Secession of Quebec (“Re Quebec”), the Supreme Court of Canada (the “SCC”) held that federalism was an unwritten constitutional principle protecting the “autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction.”[1]  In furtherance of this autonomy, s. 33 of the Canadian Charter of Rights and Freedoms (the “Charter”) allows legislation to operate notwithstanding certain sections of the Charter. Section 33 – the notwithstanding clause – and the autonomy that it promised is broadly recognized as a key compromise in efforts to overcome objections from provincial leaders and enact a Charter for individual rights. This compromise, I argue, has eroded minority legal rights, including 2SLGBTQ+ rights.

In Ford v Quebec, the SCC confirmed that a legislature enacting s. 33 does not require any substantive justification, and therefore the invocation itself cannot be challenged.[2] An October 20^th, 2023 invocation of the notwithstanding clause is currently being confronted in the case of UR Pride Centre for Sexuality and Gender Diversity v. Government of Saskatchewan et al (“UR Pride”). This case has the potential to define the limits and reach of s. 33.

In this article, I suggest that Canadians cannot have certainty that their rights are protected. I will begin considering the state of 2SLGBTQ+ rights by framing the unwritten constitutional principles as inadequate guardrails for the protection of individual rights. Then, using UR Pride, I will show that s. 33 makes the Charter also inadequate to provide protections to which all persons in Canada should be entitled. Finally, I will discuss possible solutions to preserve individual rights under the Canadian constitution.

THE UNWRITTEN CONSTITUTIONAL PRINCIPLES DO NOT PROVIDE ADDITIONAL RIGHTS

Before considering the shortcomings of the Charter, I will consider if the constitution provides any alternative protection for individual rights. One potential place to start is the unwritten constitutional principles that underpin Canadian constitutional interpretation. The unwritten constitutional principles of Canada are defined by the SCC in Re Quebec. The principle currently most relevant to 2SLGBTQ+ rights in the current context of uncertainty is “rule of law," which is said to ensure a “stable, predictable and ordered society” and a “shield from arbitrary state action.”[3] While this principle sounds ideal as a potential pathway to protect rights, in practice it is insufficient to protect 2SLGBTQ+ rights on its own.

Ian Bushnell discusses the role of pre-Charter “implied rights” in The Captive Court: A Study of the Supreme Court of Canada. He finds that constitutional recognition of rights tended to appear in concurring reasons, rather than the binding majority reasons.[4] The SCC considered an implied constitutional right more recently in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General),[5] where the court expanded s. 96 of the Constitution Act, 1867 to include a right to access superior courts. The SCC justified doing so in part by connecting access to justice to the unwritten principle of the rule of law. This decision is representative of a history in which the SCC has, from time to time, been willing to reference unwritten constitutional principles in their reasons.[6] However, an unwritten constitutional principle on its own has not been independently sufficient to protect individual rights. In Toronto (City) v Ontario (Attorney General), the SCC said that “unwritten constitutional principles cannot serve as bases for invalidating legislation.”[7] It is unlikely then that 2SLGBTQ+ people can rely on an unwritten constitutional principle, such as rule of law, when the written constitution fails to protect their individual rights.

Canadians should not need to expect unwritten principles to supplant the Charter. Instead, unwritten principles and the Charter should be understood as operating in symbiosis. To this end, the preamble of the Charter in Part 1 of the Constitution Act, 1982 acknowledges rule of law as a founding principle of Canada.  However, within the Charter is also the notwithstanding clause, which provides the mechanism for governments to abrogate specific Charter rights, and in doing so, abrogate rule of law. This friction reveals a vulnerability to individual rights in Canada.

THE NOTWITHSTANDING CLAUSE REMOVES GUARANTEED RIGHTS

When provinces opt-out legislation from Charter scrutiny by pre-emptive use of the notwithstanding clause, individual rights and freedoms in Canada are weakened. In UR Pride, the Charter rights of gender non-conforming people are being targeted. The government of Saskatchewan passed Bill 137, a piece of legislation which, among other things, requires parental consent for children under 16 to change their pronouns in school. Legal scholar and bioethicist Florence Ashley argues would almost certainly be invalidated for being unconstitutional without the notwithstanding clause. This is explored in their 2024 paper “Parental Rights Over Transgender Youth—Furthering a Pressing and Substantial Objective?”, wherein they argue the legislation would infringe the youth’s ss. 7 and 15 Charter rights, and would not be saved as a reasonable limit by s. 1 of the Charter. Specifically, the blanket veto and disclosure policies in the law are not rationally connected to the goal of protecting parents’ authority to further the best interest of their child, nor would such policies minimally impair the rights of the youth. Alternatively, Ashley argues, protecting parental entitlement is not a legitimate government objective.[8] But, by pre-emptive use of the notwithstanding clause, the Saskatchewan government is able to set aside the Charter rights of the transgender youth group, which the SCC has acknowledged is an “undeniably marginalized group” in Hansman v Neufeld.[9]

The Saskatchewan legislation at issue in the UR Pride case, and similar acts being enacted in other jurisdictions, have implications for the certainty of individual rights beyond 2SLGBTQ+ communities. The case should be viewed with concern as a rights issue for any marginalized or minority group because the government is revealing a willingness to disregard all parts of the Charter that do not align with its objective. This was shown when the government of Saskatchewan argued that had they known the case would be amended to include an additional Charter challenge, then that right would also have been included in the s. 33 invocation.[10] To have these policies operate, the government of Saskatchewan is willing to remove every Charter protection possible. Their willingness to remove those protections should concern every Canadian, because so long as a government retains the support of the majority of their electorate, that government is free to use the notwithstanding clause. This democratic reality currently affects the status of rights of 2SLGBTQ+ people in Saskatchewan but could be applied to any minority group.

THE POSSIBLE SOLUTIONS TO PROTECT INDIVIDUAL RIGHTS IN THIS CONTEXT ARE LIMITED

The only solution shown to successfully challenge the notwithstanding clause is an overwhelming public response. This solution was demonstrated in Ontario in 2022 when the Ford government used s. 33 to circumvent the collective bargaining process. Legal scholar and recently appointed Ontario Superior Court Justice Carissima Mathen in “Federalism and the Notwithstanding Clause” credits public rebuke for forcing the government to withdraw the bill.[11] But what if there are no apparent political consequences for invoking the notwithstanding clause? There is currently no other proven or predictable recourse for an affected group.

Courts may be able to bring their opinion on the law into public record, which could add to public debate. The Saskatchewan King’s Bench said that it retained jurisdiction to hear Charter cases and possibly provide declaratory relief, despite an invocation of s. 33.[12] The position that judicial review is still available is also supported by Queen’s Law Professor and Public Law expert Grégoire Webber in his 2021 article “Notwithstanding rights, review, or remedy? On the notwithstanding clause and the operation of legislation.” He concludes that the technical effect of s. 33 is to shield the infringing law from the usual remedy, which would be invalidation by s. 52(1) of the Constitution Act, 1982. Webber argues judicial review is still available, but regardless of the outcome the law will still be in place and operable.[13]

Judicial review on its own does not protect trans rights or even Charter rights more broadly. This approach would only add to the public discourse surrounding the infringing legislation. This addition to public discourse could still be valuable though. For the law to remain in effect, the government would have to renew the notwithstanding clause and thereby effectively reaffirm their commitment to abrogating the Charter. Constitutional law scholars Robert Leckey and Eric Mendelsohn in “The Notwithstanding Clause: Legislatures, Courts, and the Electorate” note the implicit link between general elections and the “sunset clause” of s. 33, which sets a 5-year expiry on any s. 33 invocation. This part of s. 33 calls on the electorate to judge the government’s action.[14] Judicial review would enhance the ability of the electorate to make an informed decision.[15]

However, waiting for an informed electorate to affirm individual rights is not the same as having immutable rights. When an unpopular minority does not have any independent recourse to an infringement on their rights, they do not truly and wholly possess those rights. Groups who are affected by legislation which is shielded from Charter scrutiny do not have a shield against such arbitrary state action, and therefore do not benefit from the rule of law. Instead, provinces claiming to develop their own societies in accordance with the principle of federalism are able to override individual rights.

It is worth noting that the federal government has its own power of disallowance, the power to declare provincial laws null and void, provided by s. 90 of the Constitution Act, 1867.[16] There are political reasons we should not expect the federal government to step in and disallow the provincial legislation at issue, but moreover there is a reason to disfavour the disallowance power as a solution to s. 33. Ultimately it would do nothing to enhance individual rights and freedoms, and instead make an individual reliant on the discretion of yet another level of government.

CONCLUSION

Ultimately, s. 33 of the Charter weakens the constitutional rights and freedoms of minorities, and therefore the rights and freedoms of every person in Canada. The only long-term solution is to in turn weaken its relatively unrestricted availability. This could be done through a reference question to the SCC, or formal constitutional amendment.[17] I would argue a formal amendment would be preferred. In a reference, courts may avoid any drastic changes to our current understanding of s. 33 to avoid a perception that they are empowering themselves. A formal constitutional amendment limiting or removing s. 33 conversely would carry democratic legitimacy and strengthen Canada’s rule of law. But the current state of the legal rights of 2SLGBTQ+ individuals under the Constitution, and therefore any individual, is that they exist only as far as the voting majority is willing to allow.

ABOUT THE AUTHOR

Mark Ziman Smith (He/Him) is an incoming 2nd year law student at the University of Ottawa. He is currently a summer student with EGALE, a leading 2SLGBTQI research and advocacy organization. He also volunteers as a national student coordinator for the Canadian Association of Refugee Lawyers. Outside of law school he can ideally be found wandering Gatineau Park with friends and colleagues.

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