Mandatory Court Review of Notwithstanding Laws

Summary#

This bill would change Saskatchewan’s Constitutional Questions Act to require a quick court review of any new provincial law that uses the “notwithstanding clause” (section 33 of the Charter). The notwithstanding clause lets a province make a law apply even if it limits certain rights for up to five years.

Key points:

• If a new Saskatchewan law uses the notwithstanding clause, the provincial cabinet must send it to the Saskatchewan Court of Appeal.
• The referral must happen within 90 days after the law takes effect.
• The court is asked two things: does the law limit fundamental freedoms, legal rights, or equality rights under the Charter, and if so, is that limit reasonable and justified.
• The law still takes effect unless a separate court order pauses it; this bill only requires a court opinion.
• The bill takes effect when it is formally approved.

What it means for you#

• Residents

  • When the province uses the notwithstanding clause, there will be a fast, formal check by the Court of Appeal. You may get quicker clarity on how the law affects rights like expression, religion, due process, and equality.
  • The court’s opinion is public, so you can see independent reasoning on whether limits on rights are justified.

• People affected by a new law that uses the notwithstanding clause

  • You would not need to start your own lawsuit to trigger a review; the government must ask the court for an opinion.
  • The law will still apply while the court reviews it, unless another court puts it on hold.

• Community groups, unions, and advocacy organizations

  • There is a set timeline (within 90 days) for a court review, which can guide planning and public education.
  • The reference can narrow legal questions and make later challenges clearer or faster.

• Lawmakers and public bodies (schools, municipalities, agencies)

  • Expect a court opinion on rights issues early, which can help with implementation choices and policies.
  • Using the notwithstanding clause will come with automatic legal scrutiny and public reasons from the court.

• Courts and lawyers

  • More “reference” cases to the Court of Appeal when the notwithstanding clause is used.
  • The court will focus on whether the law limits key Charter rights (freedoms of expression, religion, assembly and association; life, liberty and security; search and seizure; fair trial rights; equality) and whether any limits are reasonable.

Expenses#

No publicly available information.

Proponents' View#

• Adds accountability: an automatic, independent check when government limits Charter rights.
• Speeds up clarity: a 90-day referral means faster answers for the public and institutions that must follow the law.
• Improves transparency: written court reasons explain what rights are at stake and whether limits are justified.
• Encourages careful use of the notwithstanding clause by ensuring it faces prompt judicial scrutiny.
• Provides certainty for implementation by identifying legal risks early.

Opponents' View#

• Undercuts the purpose of the notwithstanding clause, which lets elected lawmakers act even when a law may limit certain rights.
• Could invite more litigation and court involvement in decisions the clause was meant to shield, adding delay and complexity.
• May increase government legal costs and court workload without changing outcomes, since the law still remains in force.
• Risks public confusion if the court finds a rights violation but the law continues because the notwithstanding clause is in place.
• Applies automatically to every use of the clause, even for narrow or time-sensitive issues.