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.