As Charter override is used more, N.B. tries to weigh in on Sask. case on gender identity laws

New Brunswick has applied to make arguments in a case legal experts say will determine whether courts can voice concerns about human rights consequences of using the notwithstanding clause.

Constitutional lawyers Kerri Froc and Lyle Skinner agree that provinces are increasingly turning to Section 33 in the Constitution — also known as the notwithstanding clause — as a way to lawfully override some Charter rights in legislation. 

It's been invoked in recent years, for example in Quebec's secularism bill and Ontario's third-party election financing laws, but lawmakers have also more often promised to use it in controversial legislation without success — such as with New Brunswick's failed mandatory vaccination bill. 

Traditionally, Froc said, courts have approached the notwithstanding clause as a legal "no-go zone," where they do not consider challenges to provincial laws where it is invoked. 

But as Canadian provinces are increasingly using it, the question of whether courts can publicly rule on a challenge — but not strike down the law — has become more relevant, said Froc and Skinner.

It's the question at issue in a Saskatchewan Court of Appeal case on the province's Parents' Bill of Rights, which passed in October and invoked the notwithstanding clause. 

Despite that, a judge in February ruled a lawsuit by 2SLGBTQ+ group UR Pride could proceed. The government of Saskatchewan is asking the province's appeal court to overturn that ruling.

If New Brunswick is granted intervener status in the case, as requested on Friday, it will join Alberta in making arguments to quash the lawsuit.

Skinner, who specializes in parliamentary law, said the case is significant because its outcome will set a precedent on what role if any the legal system will play as governments increasingly use the clause.

"If the courts rule in favour of the governments, the question of whether or not it's unconstitutional will never be answered by the courts," he said.

"If this court decision is upheld ... at the end of the day the legislature is still supreme, but there's also, the courts have that referee role in still providing a different lane to say, 'Yes, you have the ultimate authority, under parliamentary supremacy, but what you're doing would be unconstitutional if not for the notwithstanding clause.'"

Froc said that would allow courts to review the laws and give the public information about possible human rights concerns.

Giving courts that role, even without the teeth to strike down laws, could give governments more pause before opting to invoke the clause, Skinner said.

"That has public policy and political downstream consequences that may impact utilization, the very frequent utilization we're seeing right now, in the future," he said.

That's important, Froc said, because the way governments are proposing to use the clause has shifted over time from affirming rights not included in the Charter or to navigate competing rights, to a preemptive use that is "more hostile to rights."

In a statement last Friday, New Brunswick Attorney General Ted Flemming said the province is applying to intervene because it believes in "the principles of law."

"This is a constitutional issue about whether the notwithstanding clause is the final word when a legislature invokes it," Flemming said.

"We believe that legislative assemblies have the right to make laws that are important to the people of their province, and that they have the right to protect those laws through the use of the notwithstanding clause, if necessary."

However, both Froc and Skinner say the question at hand is not whether the legislature has the final say after using the notwithstanding clause, but whether courts still have a role to play in scrutinizing and publicly commenting on human rights issues resulting from its use.

"We're seeing a normalization of the notwithstanding clause being either invoked or governments threatening to invoke it," Froc said.

"So just because we have that process, perhaps it's time for the judges to re-think the use of the notwithstanding clause, and whether there should be any kind of guardrails or bulwarks against governments using the notwithstanding clause against vulnerable minorities, in particular."