Bill 611 amends Saskatchewan’s Constitutional Questions Act, 2012 to require that any provincial statute that invokes section 33 of the Canadian Charter of Rights and Freedoms (the notwithstanding clause) be sent to the Saskatchewan Court of Appeal for consideration. The amendment creates a statutory referral obligation tied to such a declaration.
This matters because it formalizes near-immediate judicial scrutiny of legislative uses of the notwithstanding clause, narrows the legal questions the court must answer to central freedoms and legal/equality rights, and imposes a short deadline for referral — all of which change the legal and political calculus around invoking s.33.
At a Glance
What It Does
The bill requires the Lieutenant Governor in Council to refer any Act that includes a s.33 declaration to the Saskatchewan Court of Appeal and asks the court to give its opinion. The referral must be made within 90 days after the Act comes into force and the court is asked to consider whether the provision infringes s.2 or ss.7–15 of the Charter and, if it does, whether the infringement is justified under s.1.
Who It Affects
Provincial ministers and the Attorney General (who will prepare and authorize references), the Saskatchewan Court of Appeal (which will receive new, time-sensitive constitutional references), rights claimants and civil liberties groups who might rely on the court’s opinion, and legislative drafters deciding whether and how to use s.33.
Why It Matters
It creates a predictable, statutory pathway for courts to weigh in when the legislature overrides Charter protections — potentially producing authoritative judicial opinions quickly after a law takes effect. That shifts risk and strategy for governments considering s.33 and for lawyers planning challenges or advising clients.
More articles like this one.
A weekly email with all the latest developments on this topic.
What This Bill Actually Does
The amendment adds a new subsection to the Constitutional Questions Act that triggers an automatic reference whenever the Saskatchewan Legislature writes a s.33 declaration into a statute. Practically, that puts the onus on the executive (the Lieutenant Governor in Council acting on cabinet advice) to send the law to the Court of Appeal rather than leaving review to later private litigation.
The court is not asked to rewrite policy; the statutory question is framed narrowly: did the provision violate specified Charter rights and, if so, is that infringement defensible under s.1’s justification analysis.
The timetable element — a referral window measured from when the Act comes into force — forces legal work to happen quickly. The Attorney General’s office will need to prepare briefing materials and arguments on very tight deadlines if cabinet intends to comply with the statute’s 90-day referral requirement.
For rights claimants and interveners, the change means they can expect an early appellate-level opinion on certain Charter questions rather than waiting for a conventional trial-and-appeal cycle.The bill defines which Charter protections the court must examine: freedom of expression and related fundamental freedoms (s.2) and the cluster of legal and equality guarantees found in ss.7–15 (life, liberty, security of the person; legal rights; equality). It does not task the court with addressing other Charter sections such as democratic rights, mobility rights, or official language rights.
That choice shapes the legal map of what a reference will cover and creates incentives for governments and challengers to litigate around those boundaries.The statute says the reference must be made and the court shall 'consider the matter' and 'seek the opinion' on the listed questions, but it does not itself spell out remedies, automatic invalidation, or how the opinion interacts with subsequent litigation. That leaves open how persuasive or binding the resulting Court of Appeal opinion will be in later proceedings, and whether it will resolve all litigation-related consequences of a government’s use of s.33.
The Five Things You Need to Know
The Lieutenant Governor in Council must refer any provincial Act that contains a s.33 (notwithstanding) declaration to the Saskatchewan Court of Appeal.
The government has 90 days from when the Act comes into force to make the required referral.
The court is asked only two things: whether the provision violates s.2 or ss.7–15 of the Charter, and if it does, whether the violation is reasonable and demonstrably justified under s.1.
The referral goes to the Saskatchewan Court of Appeal (the provincial appellate court), not directly to the Supreme Court of Canada.
The amendment comes into force on assent and is implemented by adding a new subsection to the existing Constitutional Questions Act, 2012.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Mandatory referral trigger when legislation contains a s.33 declaration
This subsection imposes a statutory duty: whenever a provincial Act contains an express notwithstanding clause declaration, the Lieutenant Governor in Council must refer the Act to the Court of Appeal and the court 'shall consider the matter.' Practically, this converts the political decision to use s.33 into a legal event that triggers immediate judicial attention. The provision shifts initiation of appellate-level review from private litigants to the executive branch, which has implications for timing, briefing, and the posture of the litigation.
90-day referral window
This short subsection sets a strict deadline: the reference must be made within 90 days after the Act comes into force. That creates a compressed schedule for the government to prepare the referral record and for the court to accept a fresh constitutional question. For the Attorney General’s office it means earlier allocation of resources; for the court it means an influx of time-sensitive work that may require case-management adjustments.
Narrow list of questions to be decided
The referral request must limit the court’s opinion to two discrete inquiries: whether the impugned provision violates s.2 or ss.7–15 of the Charter, and whether, if there is a violation, it is justified under s.1. By cataloguing which Charter sections to test, the bill narrows the legal scope of the reference and excludes other Charter rights from the mandated review. That narrowing is consequential: it will shape both which constitutional arguments get aired at the appellate level and which issues may remain for later litigation.
Immediate effect on assent
The Act declares that it comes into force on assent. That means any future statute passed with a s.33 declaration after assent will be subject to the referral obligation. The logistics of how and when the Lieutenant Governor in Council prepares and files referrals will become an operational matter for the executive and the Court of Appeal.
This bill is one of many.
Codify tracks hundreds of bills on this topic across all five countries.
Explore this topic in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Individual rights claimants and interveners — they gain access to an early appellate opinion on core Charter issues, which can clarify legal positions and shape subsequent litigation strategy.
- Civil liberties and public-interest organizations — the bill institutionalizes a mechanism to obtain high-level judicial analysis of s.33 uses, increasing transparency and opportunities to participate as interveners.
- Members of the public seeking clarity on the scope of rights — authoritative appellate opinions issued early can reduce legal uncertainty about whether a particular legislative choice overrode critical Charter protections.
Who Bears the Cost
- The provincial government and Attorney General’s office — they must prepare and file references within a set deadline and bear associated legal fees and internal resource costs, including the risk of adverse appellate findings that can become political liabilities.
- The Saskatchewan Court of Appeal — the court will face increased, time-sensitive workload and may need additional resources or case-management changes to handle a flow of mandatory references.
- Taxpayers — government-funded legal work and potential intervenor funding or expanded court resources will carry public cost, especially if references become frequent.
Key Issues
The Core Tension
The bill pits two legitimate objectives against each other: it seeks to subject an extraordinary legislative power (the notwithstanding clause) to timely judicial analysis and public scrutiny, while at the same time preserving the legislature’s ability to make policy choices through s.33. The central dilemma is whether an automatically triggered, court-led review clarifies democratic accountability or it constrains lawful legislative autonomy by inviting judicial condemnation of politically difficult choices.
Several practical and legal questions remain ambiguous in the text. The statute mandates referral and frames the questions the court should answer, but it does not specify the procedural form of the reference (e.g., the size of the record, deadlines for interveners, or whether the court should prioritize these matters).
Those operational questions will fall to the Court of Appeal’s case management rules and the Attorney General’s approach, which could vary case by case.
A more substantive tension arises from the limited scope of the court’s mandated inquiry. By confining the reference to s.2 and ss.7–15 and s.1, the bill excludes other Charter protections — notably democratic rights, mobility, and language rights — from automatic appellate scrutiny.
Governments could respond strategically by drafting measures to rely on other Charter sections or by framing policy objectives to avoid triggering the specified review. Finally, the bill does not say whether the Court of Appeal’s opinion will produce immediate legal effects such as stays, declarations of invalidity, or enforceable remedies; those consequences will depend on subsequent litigation and existing constitutional doctrines about advisory opinions and judicial remedies.
There's more to this law than the bill.
Codify Laws traces every connection across the legislative lifecycle.