Brandon Harder
Regina Leader-Post
The Government of Saskatchewan believes that if a court were to declare whether the province’s pronoun consent law violates certain constitutional rights, it would be veering out of its proper lane.
Multiple lawyers from MLT Aikins, the private firm representing the government, made arguments to that end before a five-judge panel in the Saskatchewan Court of Appeal on Monday.
The hearing concerned an appeal brought by the government, which submits that a lower-court judge made errors in allowing a court case brought by the UR Pride Centre for Sexuality and Gender Diversity to continue in an amended form.
The legal action launched by the non-profit organization in August of 2023 sought to halt the implementation and to have what was then a government policy declared unconstitutional.
The policy was later replaced by a law known as the Parents’ Bill of Rights, or Bill 137, which requires students under the age of 16 to obtain parental or guardian consent for school staff to “use the pupil’s new gender-related preferred name or gender identity.”
In his Feb. 16 decision, Court of King’s Bench Justice Michael Megaw granted amendments, which allowed UR Pride to target Bill 137 instead of the preceding policy, as well as to tack on a further constitutional challenge.
Bill 137 uses what’s known as the notwithstanding clause, which allows it to stand regardless of whether it violates certain sections of the Charter of Rights and Freedoms, namely guarantees to life, liberty and personal security, as well as equality.
“When used, the notwithstanding clause is not a means to allow legislatures to evade scrutiny, rather it leaves the scrutiny of the legislation to the public square and, respectfully, not the courtroom,” government lawyer Milad Alishahi told judges Monday.
The legislature “can consider rights or interests that are not constitutionally protected and prefer those over constitutionally enshrined rights,” Alishahi submitted.
Despite the use of the notwithstanding clause, Megaw also decided that the court retains jurisdiction to hear the case, and that it remains at the court’s discretion whether to make a declaration regarding the law’s constitutionality.
Alishahi firmly laid out the government’s position that once the notwithstanding clause is invoked within a law, the court no longer has jurisdiction to weigh in on whether the law violates sections of the Charter listed in the clause’s invocation.
To do so would take the court “beyond its proper role,” Alishahi said, which he reiterated was simply to determine whether the notwithstanding clause had been properly invoked.
Lawyer Bennet Misskey spoke on the government’s position that the case should’ve been dismissed for being moot.
He said Megaw should have considered whether, after the passing of Bill 137 with the use of the notwithstanding clause, there was still a “live controversy.” Given the overriding function of the clause, any question of consistency with the Charter would be “academic,” he submitted.
Lawyer Deron Kuski took aim at UR Pride’s addition of a constitutional challenge to its case regarding a section of the Charter that protects Canadians from cruel and unusual punishment. Bill 137 is not protected by the notwithstanding clause in relation to that section of the Charter.
He reiterated the government’s position that the addition was simply an attempt to get around the government’s lawful actions and amounted to an abuse of the court process.
He submitted that UR Pride’s motivation for continued pursuit of its case through this avenue was to hold the government politically accountable more so than to resolve “true points in controversy.”
“The only place the government is now accountable is at the ballot box,” Kuski said. “The courts cannot assist any longer, we submit.”
The Charter itself “contemplates and allows” for what the government has done through the use of the notwithstanding clause, he told the judges.
“The court ought not to concern itself with political accountability.”
The arguments made Monday on behalf of the government were sprawling and are not all referenced in this article. They build upon written arguments filed previously.
As of the Regina Leader-Post’s print deadline, UR Pride had not yet made its own oral arguments.
bharder@postmedia.com
