Lawyers eyeing ‘options’ if notwithstanding clause used in Saskatchewan pronoun case

By Terry Davidson

Law360 Canada (October 5, 2023, 9:52 AM EDT) -- A group granted an injunction against the Saskatchewan government’s controversial gender pronoun policy for students will explore legal “recourse” should the province use the notwithstanding clause, says the group’s lawyer.

It was Sept. 29 that Saskatchewan’s Court of King’s Bench put a pause on the provincial government’s Parental Inclusion and Consent policy, which would make it so students under 16 would have to get parental permission for them to change their names and gender pronouns at school.  

The UR Pride Centre for Sexuality and Gender Diversity had sought the injunction until the court could determine the constitutionality of the policy.

In the 56-page decision in UR Pride Centre for Sexuality and Gender Diversity v. Saskatchewan (Minister of Education), 2023 SKKB 204, Justice Michael Megaw found that “at this preliminary stage, the public interest in recognizing the importance of the governmental Policy is outweighed by the public interest of not exposing” students to the harm of not being able to express gender identity.

“I find this to be one of those clear cases where injunctive relief is necessary to attempt to prevent the irreparable harm referred to pending a full hearing of this matter on its merits,” he wrote.

But almost immediately, Progressive Conservative Premier Scott Moe said he will have the province’s legislature called back on Oct. 10, specifically to invoke the notwithstanding clause as a way of preserving the policy, which Moe said “has the strong support of a majority of Saskatchewan residents, in particular, Saskatchewan parents.”

The notwithstanding clause is a provision in the Canadian Charter of Rights and Freedoms allowing governments to override certain Charter rights when passing legislation. The override lasts up to five years and bars judicial review of the legislation.

Adam Goldenberg, McCarthy TétraultThis is a short description of the image

Adam Goldenberg, McCarthy Tétrault

But Toronto lawyer Adam Goldenberg, a partner with McCarthy Tétrault, and one of five lawyers acting for UR Pride, said his client has instructed him to not “fold up our tent and go home if the government does, indeed, invoke the notwithstanding clause.”  

“We will consider what options are available to us based on the law, but I’m certainly not prepared to concede at this stage that the invocation of the notwithstanding clause eliminates any recourse under the Constitution,” Goldenberg told Law360 Canada.

Goldenberg would not elaborate on what the “options” would be. He did, however, call the use of the notwithstanding clause in this case a “horrifying” prospect.

“The idea that a government in Canada would use the notwithstanding clause … to impose measures that a court has concluded … will cause irreparable harm to young people is astonishing — and unprecedented, as far as I am aware. It’s also surprising that the government apparently doesn’t even want to have its day in court on whether the policy is constitutional or not.”

But Bruce Ryder, a law professor at Toronto’s Osgoode Hall law school, said there were two possible options to which Goldenberg and UR Pride could turn.

But both are longshots.

Bruce Ryder, Osgoode Hall law school

Bruce Ryder, Osgoode Hall law school

“One is to appeal to the federal government to exercise what’s called its power of disallowance,” said Ryder. “This is a power that is in the 1867 Constitution Act that enables the federal government to essentially veto any provincial legislation within a year of its passage.

“You go to the federal government and say, ‘this is such an egregious violation of a vulnerable group’s rights, we need you to restore their rights by vetoing this legislation by using your disallowance power.”

But Ryder says this “power that has fallen into disuse,” largely due to the criticism of it flying in the face of federalism and the principle of provincial autonomy. As a result, he said, it is unlikely Ottawa will respond to the call.  

The other option, he said, could be to turn to s. 28 of the Charter, which states that “[n]otwithstanding any else in this Charter, the rights and freedoms in it are guaranteed equally to male and female persons.”  

“So, there’s an argument that section 28 should be interpreted as protecting sex equality, which includes gender identity and expression. … and therefore trumps [the notwithstanding clause] because of the opening language in section 28: notwithstanding anything in this Charter. … So, while section 33 (the notwithstanding clause) makes it sound like the government can override equality rights, the counterargument would be, no, because of section 28, which places sex equality — which includes gender equality, or equality on the basis of gender identity and expression — beyond the reach of the notwithstanding clause.”

Section 28, said Ryder, has been leaned on heavily in arguments against Quebec’s Bill C-21, the controversial “secularism” legislation forbidding public service workers from wearing religious symbols, including face coverings, which are worn by some Muslim women.

After Moe announced the use of the notwithstanding clause, he faced criticism from others in the justice sector.

The Canadian Bar Association (CBA) issued a statement the next day, accusing Moe and his government of attempting to undermine judicial independence.

“The CBA also want to reiterate that each branch of government has its mandate, and the legitimate judicial role is an essential part of democracy,” said president John Stefaniuk. “The role of protecting the rights and freedoms from government overreach under our system of government falls to the courts. Statements that cast doubt on the independence and the role of the judiciary erode the public’s trust in the legal system and in our democratic institutions.”

Later, Stefaniuk told Law360 Canada that an alarming aspect of this case is the fact that the notwithstanding clause was brought up during a preliminary stage of these proceedings. The court, he said, should be given a chance to render a decision on the constitutionality of the policy.

“The urgency doesn’t match. We’ve got a risk of harm on one side and not on the other, and here you have the court performing its constitutional function. It’s not finding on the appropriateness of the government action from a political perspective, it’s solely examining the legality of the action that is being taken. And that’s clear in the judge’s decision.”     

Around this time, federal Justice Minister Arif Virani took to social media to say that “[v]iolating individual rights should not be a decision taken lightly.”

“We note that the government is choosing to do this despite today’s injunction which should have given them pause,” stated Virani. “A judge agreed that what the government is doing may cause irreparable harm to some of its most vulnerable young people. Just as important, they are acting before a court has had the opportunity to review their proposed policy for its constitutionality.”  

The government lawyers involved in the case were asked for comment, but a spokesperson declined on their behalf due to the matter being before the courts.  

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