An open letter to Premier Moe of Saskatchewan | Marvin Zuker

Law360 Canada (October 13, 2023, 9:30 AM EDT) --

Marvin Zuker

Mr. Premier:

Notwithstanding


Is disallowing self-expression worth the negative psychological consequences of increased depression, suicidal ideation and maybe not keeping them alive?

Mr. Premier:


As T.E. Lawrence wrote, “I’m always afraid of being hurt: And to me, while I live, the force of that night will lie in the agony which broke me, and made me surrender. … I wanted to put it plain in the book, and wrestled for days with my self-respect … which wouldn’t, hasn’t, let me.” (The Letters of T.E. Lawrence – J.M. Dent & Sons, London 1988.)

To all those young children in Saskatchewan who are still in thrall to a terrible secret, you are not alone.

May we all be safe, peaceful and free, Premier Moe.

Nov. 20 is National Child Day in Canada. It is also World Children’s Day, championed by UNICEF to mark the date in 1989 when the United Nations adopted the Convention on the Rights of the Child. The Convention is a promise to children that their governments will do everything in their power to protect and promote their human rights. To recognize children’s rights, Canada established Nov. 20 as National Child Day. It’s a day for children, by children – our chance to hear from children and youth about what matters to them.

Notwithstanding, Premier Moe, maybe just maybe, we may still have a National Child Day and not a Shred Day in Saskatchewan.

A very simple theme: “Investing in our future means investing in our children.”

Addendum

Aug. 22, 2023, the Ministry of Education of Saskatchewan introduces a policy titled “Use of Preferred First Name and Pronouns by Students.” That policy requires parental or guardian consent when a student under the age of 16 requests that their “preferred name, gender identity, and/or gender expression be used …” Thereafter, the UR Pride Centre for Sexuality and Gender Diversity at the University of Regina sought to have the policy declared unconstitutional.

Sept. 19, 2023, Justice Michael Megaw of the King’s Bench of Saskatchewan grants intervener status to five distinct parties (See UR Pride Centre For Sexuality and Gender Diversity v. Saskatchewan (Minister of Education) [2023] S.J. No. 338).

Sept. 28, 2023, Justice Megaw granted an interlocutory injunction enjoining the government from proceeding with the policy at this time, see UR Pride Centre for Sexuality and Gender Diversity v. Saskatchewan (Minister of Education) [2023] S.J. No. 345. Next up to bat, Premier Moe. Pack your suitcases, we are coming back and coming for YOU.

Oct. 10 we intend to invoke the notwithstanding clause.

Almost 100 years ago relating to Privy Council Appeal No. 121 of 1928, in the matter of a Reference as to the meaning of the word “persons” in s. 24 of the British North America Act, 1967, an Appeal from the Supreme Court of Canada, Edwards v. Canada (Attorney General), better known as the “Persons Case”, (Reference re: British North America Act, 1867 s. 24, [1929] J.C.J. No. 2), according to the Lord Chancellor, Lord Sankey,

“… The question as issue in this appeal is whether the words “qualified persons” in that section include a woman, and consequently whether women are eligible to be summoned to and become members of the Senate of Canada …”.

“… Their Lordships are of the opinion that the word “persons” in section 24 does include women, and that women are eligible to be summoned to and become members of the Senate of Canada …”. See [1930] AC 124.

Lord Sankey states further at page 9 of the decision,

“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”

The object of the Act was to grant a Constitution to Canada.

“Like all written constitutions it has been the subject to development through usage and convention.” (Canadian Constitutional Studies, Sir Robert Borden (1922), p. 55).

“… Their Lordships do not conceive it to be the duty of this Board – it is certainly not their desire – to cutdown the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs …”

The Canadian Charter of Rights and Freedoms must, must be a tree of life, not a tree to be chopped down by the premier of Saskatchewan.

We know too well that women in this country have been “eligible for pains and penalties but not rights and privileges.” Now it appears that the children of Saskatchewan are next, not to be considered “persons.” It must not happen.

Saskatchewan’s education rule/policy/subdelegated legislation that requires teachers to get parental permission in order for transgender and non-binary students under 16 to use different names or pronouns at school has implications for all students who attend schools in Saskatchewan.

Under s. 15(1) of the Charter we all have the right to equal protection and to equal benefit of the law, without discrimination; i.e.; treating some students, some children, different from other students, other children.

Discrimination has been described 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 on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society …”. See Withler v. Canada (Attorney General) 2011 SCC 12 at paras. 29 and 31.

If, arguably, a government CANNOT JUSTIFY a law which limits a Charter right, inserting the notwithstanding clause is NOT the answer. See e.g., R. v. Oakes [1986] 1 S.C.R. 103 for the two-part balancing test required.

Governments must not exploit for political reasons artificial divisions between parents and educators to the detriment of the well-being of our young children. Mr. Premier, say it as it is, a “parents’ rights” issue, an “anti-student inclusion issue,” and anti-gender identity and gender-affirming care. Mr. Premier, this is NOT about “protecting” children and their families. This is about disregarding the well-being and needs of all our children.

And this may only be the beginning. What comes next? Tip lines for parents to report these “divisive practices” in schools? The notwithstanding clause must not, must never be used in the name of a parent’s “right to know” as a weapon to silence our children or as some xenophobic reflex.

Cannot we all, Mr. Premier, simply, very simply enjoy equal dignity in the eyes of the law? 
 
This is the final instalment of a four-part series. Part one: Notwithstanding, Premier Moe: Children’s day or shredding day. Your choice. Part two: Convention on Rights of the Child in child-friendly language. Part three: What’s at risk when children’s rights contravened?

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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