Notwithstanding, Premier Moe: Children’s day or shredding day. Your choice | Marvin Zuker

By Marvin Zuker

Law360 Canada (October 10, 2023, 11:24 AM EDT) --
Marvin Zuker
Marvin Zuker
Saskatchewan Premier Scott Moe stated on Sept. 29, 2023, that his school pronoun policy is based on “multiple conversations” with parents, teachers and others.

The day before, Regina Court of King's Bench Justice Michael Megaw granted an injunction on the government’s school pronoun policy, which would require parental consent for all students under 16 to change their names or pronouns at school.

Moe has pledged to reconvene the legislature Oct. 10 to invoke the notwithstanding clause and overrule Megaw’s decision.

As of now, gender-diverse young people in Saskatchewan who have a trusted adult at school whom they want to respect them and recognize for their gender identity can have that trusted adult. Refer to them by their chosen name, their chosen pronouns, even if they haven’t come out to their parents so don’t have parental consent.

Educating children works best with engaged parents and caring teachers who work together to create a safe space, sometimes the only safe place, for all children to learn. “Outing” transgender students can put this most vulnerable at-risk group at even greater risk. The notwithstanding clause (s. 33 of the Charter) was never, ever intended to take away the voice of the child. Arguably s. 15 of the Charter may or may not be subject to Premier Moe’s intention to shred the United Nations Convention on the Rights of the Child (UNCRC), if not historical precedent in Canada (See Michel v. Graydon, 2020 SCC 24).

In concurring reasons of a unanimous judgment, the Supreme Court of Canada recognized that courts under provincial family law legislation can vary a child support order, whether or not the beneficiary is a “child” at the time of the application and whether or not the order has expired. The purpose and promise of child support is to protect financial entitlements due to children by their parents. This right is not extinguished when the child reaches the age of majority. Citing articles 3 and 27 of the UNCRC as affirming the legal principle of the best interests of the child and the duty of state parties to “take all appropriate measurements to secure the recovery of maintenance for the child from the parents,” a concurring judgment recognized children as “full right bearers.”

Perhaps, most importantly Mr. Premier, if this was a non-binary and transgender child you knew, you would want to keep that child alive as statistics indicate?

Children are not chattel. One suicide Mr. Premier, is it worth it?

There are no “internal limits” on Saskatchewan’s ability to invoke the notwithstanding clause. Governments can invoke it in any circumstance so long as they comply with its formal requirements in s. 33 of the Charter.

Is Premier Moe free and clear because arguably the notwithstanding clause overrides sections 2 and 7-15 of the Charter?

Both the majority and the dissent rejected the notion that “internal limits” within the notwithstanding clause prevented the government from invoking the clause. Rather, they concluded that the only requirements for invoking the notwithstanding clause are formal: the clause must be invoked “expressly,” and can only apply to section 2 or sections 7 to 15 of the Charter. But, is Premier Moe not required to provide a substantive justification for invoking the clause?

 Under s. 15(1) of the Charter, we all have the right to equal protection and to equal benefit of the law, without discrimination:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

At its simplest “to discriminate” is to treat someone differently than others. Section 15(1) prevents such differing treatment to be based on any of the grounds it refers to or to “analogous grounds” that have been, or may be, identified by the courts. The Supreme Court of Canada has described discrimination as “a distinction … based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society …” (Withler v. Canada (Attorney General) 2011 SCC 12 at paras. 29 and 31 quoting Law Society British Columbia v. Andrews [1989] 1 S.C.R. 143).

Does a law impose a burden or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage? (See Fraser v. Canada (Attorney General) [2020] S.C.J. No. 28 at para. 27)

Section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Supreme Court of Canada has created a two-step balancing test to determine whether a government can justify a law which limits a Charter right, as follows:

1. The government must establish that the law under review has a goal that is both “pressing and substantial.”

2. The court then conducts a proportionality analysis using three subtests.

a. The government must first establish that the provision of the law which limits a Charter right is rationally connected to the law’s purpose.

b. Secondly, a provision must minimally impair the violated Charter right.

c. Finally, the court examines the law’s proportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose (R. v. Oakes [1986] 1 S.C.R. 103).

The policy of Premier Moe stands in breach of s. 15(1) of the Charter.

This is the first instalment of a four-part series.  

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is a professor at Ontario Institute for Studies in Education/University of Toronto, where he has been teaching education law for 42 years. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

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