Brandon Harder
Regina Leader-Post
The UR Pride Centre for Sexuality and Gender Diversity says there’s nothing that prevents a judge from weighing in on whether Saskatchewan’s pronoun consent law violates certain constitutional rights.
Despite the provincial government’s use of the notwithstanding clause to allow the law to operate in the face of potential violations, the non-profit organization argued its case against the law should proceed nonetheless.
Those were, in a nutshell, the positions that UR Pride’s legal team presented to a five-judge panel of Saskatchewan’s highest court, beginning Monday and spilling into Tuesday. The positions support the findings of Court of King’s Bench Justice Michael Megaw, contained in his Feb. 16 decision.
The Saskatchewan Court of Appeal must decide whether Megaw made errors in coming to his conclusions, as the Saskatchewan government alleges.
“The government is not empowered to silence the judiciary on a question of constitutional rights, and leave its voice as the only voice that legislators and voters hear in determining what is ultimately the voters decision — whether this law should operate,” said UR Pride lawyer Adam Goldenberg on Tuesday during the hearing at the Saskatchewan Court of Appeal in Regina.
In August 2023, the non-profit organization launched legal action that 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.”
Megaw’s decision allowed the court case to target Bill 137 as opposed to the preceding policy. He also allowed UR Pride to tack on an additional constitutional argument concerning cruel and unusual punishment.
The notwithstanding clause is a mechanism that allows for a law to stand regardless of whether it violates constitutional rights listed within the law. While sections of the Charter of Rights and Freedoms were listed in Bill 137 concerning guarantees to life, liberty and personal security, as well as equality, a section protecting against cruel and unusual punishment was not.
Goldenberg’s arguments drilled down into the granular. He went so far as to take the judges on a lengthy exploration of the nuances between the English and the French versions of constitutional documents.
Parties agree that Bill 137 can stand temporarily regardless of whether it violates the rights listed within. But central to the case is the question of whether court could issue a declaration on whether Bill 137 violates the rights listed within.
The government says no, UR Pride says yes.
Goldenberg’s submissions were replete with reference to past court cases, some of which he argued were in support of his position.
He also spoke to a case from the Quebec Court of Appeal, which was heavily referenced Monday by lawyers representing the government. Milad Alishahi said on behalf of the government that the Quebec court in that case decided the use of the notwithstanding clause allows a law to be “protected from constitutional review.”
This, government lawyers argued, supports Saskatchewan’s position that the court can no longer offer a declaration pertaining to potential rights violations.
Goldenberg argued the Quebec Court of Appeal got it wrong, and endeavoured to explain why to the appeal judges.
UR Pride lawyer Ljiljana Stanic made submissions responding to government assertions that Megaw should’ve thrown the case out for being moot, and should not have allowed the challenge on the Charter section not listed within Bill 137.
Stanic asserted that the government “manufactured” conditions of mootness through its actions and she supported the position of Megaw, who decided not to render a decision on that front at the outset.
With regard to the added challenge that Bill 137 violates the right protecting Canadians from cruel and unusual punishment, she said it was a necessary addition to maintain the possibility that the law could be effectively struck down for being unconstitutional (the notwithstanding clause shields it from this result, in relation to the other sections of the Charter that UR Pride originally argued it would violate.)
“It cannot be improper or abusive to amend pleadings to plead a further, admittedly more novel, basis for the relief sought from the outset,” she said.
“Nor can seeking relief in respect of a law that unreasonably limits rights, and thereby holding the government to account, be an improper purpose.”
Arguments made by UR Pride lawyers were lengthy and voluminous. They are not all represented within this article.
The hearing was still ongoing at press time Tuesday. No indication had yet been given about a decision date.
bharder@postmedia.com
