The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

in response to a superior court decision striking down a previous version of the Act that had not invoked the NWC. 212 In Bill 307, Ontario expanded upon a previous law restricting campaign spending by unions, corporations and other third-parties, to prohibit them from campaigning twelve months before an election. 213 The Ontario Superior Court of Justice found that this time restriction violated the Charter’s guarantee of free expression. 214 Within a week, Ontario enacted Bill 307, which was identical to Bill 254 except for the addition of the NWC. 215 Ontario’s Bill 28 prohibited striking by school board employees repre sented by the Canadian Union of Public Employees (CUPE) and issued fines to noncomplying individual members. 216 Bill 28 invoked the NWC clause to survive judicial review because of intervening decisions by the Supreme Court that affirmed the right to strike as an “indispensable compo nent” of the right to freedom of association. 217 Most recently, in 2023, the government of Saskatchewan used the NWC in a “Parents’ Bill of Rights” that mandates parental consent before school employees can refer to a student under the age of sixteen by their “new gender-related preferred name or gender identity at school.” 218 After a judge paused the bill’s enactment to allow a constitutional challenge, the Saskatchewan government invoked the NWC in a special, expedited legislative session. 219

212 The Constrained Override, supra note 189 at 1730-31. 213 The Constrained Override, supra note 189 at 1731.

214 Id. 215 Id. 216 Id.

217 Id. citing Sask. Fed’n of Lab. v. Saskatchewan, 2015 SCC 4, paras. 3, 25 (Can.). 218 The Constrained Override, supra note 189 at 1731 citing The Education (Parents’ Bill of Rights) Amendment Act, S.S. 2023, c 46, art. 197.4(3) (Can. Sask.). 219 The Constrained Override, supra note 189 at 1731-32 citing Adam Hunter, Sask. Government Use of Notwithstanding Clause, School Policy Could Overshadow Fall Legislative Sitting , CBC (Oct. 14, 2023), https://www.cbc.ca/news/canada/saskatchewan/sask notwithstanding-clause-1.6995293 [https://perma.cc/7BG6-TPDR].

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