Saskatchewan and the notwithstanding clause explained

A provincial government is again threatening to invoke the Constitution's notwithstanding clause — this time over an education policy change that a court has tried to pause.

Last month, the government of Saskatchewan announced that all students under 16 must have parental consent to change their names or pronouns.

This week, a Regina judge ruled in favour of UR Pride, an LGBTQ advocacy group, and granted an injunction temporarily pausing the policy until its constitutionality can be tested in court.

"Our government is extremely dismayed by the judicial overreach of the court blocking implementation of the Parental Inclusion and Consent policy — a policy which has the strong support of a majority of Saskatchewan residents, in particular Saskatchewan parents," Saskatchewan Premier Scott Moe said in a written statement issued Thursday afternoon.

"The default position should never be to keep a child's information from their parents."

On Friday, Moe repeated his promise to recall the province's legislature on October 10 to pass legislation ensuring the policy is implemented.

"We are going to go in at the earliest opportunity, which is in about a week. We're going to introduce and ultimately pass the legislation, we're going to notwithstand that legislation ... to provide clarity for teachers in our classrooms but most importantly, to provide clarity for families," Moe said in Saskatoon Friday.

This decision to invoke the notwithstanding clause follows in the footsteps of the Quebec and Ontario provincial governments, both of which have invoked the clause in recent years.

The notwithstanding clause, or Section 33 of the Charter of Rights and Freedoms, gives parliaments in Canada the power to override certain portions of the charter for five-year terms when passing legislation.

The clause can only override certain sections of the charter — section 2 and sections 7 to 15, which deal with fundamental freedoms, legal rights and equality rights. It can't be used to override democratic rights. 

Once invoked, the clause prevents any judicial review of the legislation in question. After five years, the clause ceases to have any effect unless it is re-enacted.

In the early 1980s, the Liberal government of Prime Minister Pierre Trudeau wanted Canada to have its own Constitution with an entrenched bill of rights. But negotiations stalled over concerns that the proposed Charter of Rights would be too powerful.

"There were a number of people, including several provincial premiers at the time, who were concerned that that would upset the balance of power between the federal and provincial governments and would put too much power in the hands of the courts," Carissima Mathen, professor of law at the University of Ottawa, told CBC News in November.

"A number of premiers argued that there should be ... a sort of escape hatch from certain rights in the charter."