The Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms (the Charter) is part of Canada’s Constitution, which is the highest law in Canada. The Charter protects basic rights and fundamental freedoms that are essential to keeping Canada a free and democratic society. It ensures that the government does not unreasonably take away or interfere with those rights or freedoms.
The rights and freedoms guaranteed by the Charter include fundamental freedoms (section 2), such as the freedoms of religion, expression, and association; democratic rights (sections 3-5), like the right to vote in federal and provincial elections; mobility rights (section 6); legal rights (sections 7-14), which protect people dealing with the justice system; equality rights (section 15), which protect people against discrimination; official language rights (sections 16-22); and minority language educational rights (section 23).
Charter-based Challenges
When someone thinks a government statute has violated their Charter rights or freedoms, they can challenge it in court (section 24). If a court concludes that the statute violates a person’s Charter rights or freedoms, it can declare the statute unconstitutional and “strike it down”. A statute struck down by a court has no force or effect—it no longer applies.
Sometimes, Charter challenges make their way to the Supreme Court. The Supreme Court, the highest court in Canada, has the final say in the constitutionality of a government action. So, the courts play a vital role in ensuring Parliament and the provincial legislatures abide by the Charter.
Section 33 of the Charter – the Notwithstanding Clause
Section 33 of the Charter, known as the “notwithstanding clause”, allows Parliament and the provincial legislatures to create statutes that may violate certain Charter rights and freedoms. Section 33 says Parliament, or a provincial legislature, can create a statute that expressly declares that it will operate notwithstanding a right or freedom guaranteed by section 2 or sections 7 to 15 of the Charter. When Parliament or a provincial legislature does that, it removes the courts’ power to (i) declare the statute unconstitutional for violating the Charter and (ii) strike it down. Put another way, when a statute clearly states it shall operate despite the fundamental freedoms, legal rights and equality rights guaranteed by sections 2 and 7-15 of the Charter, it effectively overrides those Charter rights and freedoms.
A government’s use of the notwithstanding clause has political consequences, so it is not used often. Parliament has never used it, but some provincial legislatures have. When it is used, politicians and the public usually react viscerally.
Saskatchewan’s Recent Use of the Notwithstanding Clause
Saskatchewan’s legislature recently used the notwithstanding clause in a controversial statute amendment that requires parental consent before a student under the age of 16 can use a new gender-related preferred name or gender identity at school. Since October 2023, Saskatchewan’s The Education Act, 1995 has stated that its new parental consent provision (section 197.4) operates notwithstanding sections 2, 7 and 15 of the Charter. So, the parental consent provision cannot be successfully challenged in the courts on the basis that it is unconstitutional for violating the freedom of expression right to life, liberty and security of person; or equality rights guaranteed by the Charter.
Alberta’s Bill 27
On October 31st of this year, Alberta’s Education Minister introduced Bill 27, Education Amendment Act, 2024, in the Legislative Assembly of Alberta (first reading).
Bill 27 is only a proposed law right now. To become a statute, it will have to be debated and studied, pass second and third reading, and receive royal assent from the Lieutenant Governor of Alberta. If Bill 27 becomes law, Alberta will have a parental consent provision like Saskatchewan’s. That is, Alberta’s Education Act will require parental consent before a student under the age of 16 can use a new preferred name or pronouns – that is, gender identity – at school (proposed new section 33.2).
Unlike Saskatchewan’s parental consent provision, the parental consent provision being proposed for Alberta does not invoke the notwithstanding clause. That is, it does not state that it will operate notwithstanding sections 2, 7 and 15 of the Charter. So, if it becomes law, Alberta’s parental consent provision will not be insulated from a legal challenge and remedy. And there is little doubt that it will be challenged. Many groups have already published statements against Bill 27, including the Alberta Teachers’ Association, the Canadian Union of Public Employees, the Alberta Union of Provincial Employees, and LGBTQ+ organizations.
It will be interesting to see whether Alberta’s proposed parental consent provision becomes law. If it does, one can assume that it will be challenged in court for violating the Charter rights of students.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Jennifer Taylor
